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2018 Georgia Code 14-2-1105 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 14-2-1105 Case Law from Google Scholar Amendments to OCGA 14-2-1105

TITLE 14 CORPORATIONS, PARTNERSHIPS, AND ASSOCIATIONS

Section 2. Business Corporations, 14-2-101 through 14-2-1703.

ARTICLE 11 MERGER AND SHARE EXCHANGE

14-2-1105. Articles or certificate of merger or share exchange.

  1. After a plan of merger or share exchange is approved by the shareholders, or adopted by the board of directors if shareholder approval is not required, the surviving or acquiring corporation shall deliver to the Secretary of State for filing articles of merger or share exchange setting forth:
    1. The plan of merger or share exchange;
    2. If shareholder approval was not required, a statement to that effect; and
    3. If approval of the shareholders of one or more corporations party to the merger or share exchange was required, a statement that the merger or share exchange was duly approved by the shareholders.
  2. In lieu of filing articles of merger or share exchange that set forth the plan of merger or share exchange, the surviving or acquiring corporation may file a certificate of merger or share exchange which sets forth:
    1. The name and state of incorporation of each corporation which is merging or engaging in a share exchange and, in the case of a merger, the name of the surviving corporation into which each other corporation is merging;
    2. In the case of a merger, any amendments to the articles of incorporation of the surviving corporation;
    3. That the executed plan of merger or share exchange is on file at the principal place of business of the surviving or exchanging corporation, stating the address thereof;
    4. That a copy of the plan of merger or share exchange will be furnished by the surviving or exchanging corporation, on request and without cost, to any shareholder of any corporation that is a party to the merger or whose shares are involved in the share exchange;
    5. If shareholder approval was not required, a statement to that effect; and
    6. If approval of the shareholders of one or more corporations party to the merger or share exchange was required, a statement that the merger or share exchange was duly approved by the shareholders.
  3. Unless a delayed effective date is specified, a merger or share exchange takes effect when the articles or certificate of merger or share exchange is filed.

(Code 1981, §14-2-1105, enacted by Ga. L. 1988, p. 1070, § 1; Ga. L. 1989, p. 946, § 50; Ga. L. 1990, p. 257, § 15.)

COMMENT

Source: Model Act, section 11.05. This replaces former §§ 14-2-213 &14-2-216(a).

The articles of merger or share exchange formally make the terms of the transaction a matter of public record and the effective date of the articles is the effective date of their filing unless a delayed effective date is utilized. See Section 14-2-123.

Subsection (a)(3) of the Model Act has been simplified, to require only a statement that the shareholders duly approved the plan of merger or share exchange, if required. rather than the details of the vote, which are of no concern to the Secretary of State.

Subsection (b) has been added to the Model Act provisions. It is based upon Del. Code Ann. tit. 8, § 251(c). Plans of merger can be lengthy and detailed documents, that contain details of business combinations that are inappropriate for public records in some cases. Consequently, a short statement in lieu of the plan of merger or share exchange is permitted. In order to assure that those shareholders who may need the information contained in such documents have full access, this alternative requires that shareholders of all constituent corporations be furnished copies of the plan upon request at no cost.

The introduction of a certificate procedure represents the only substantive change from prior law. Section14-2-1105 omits requirements of former § 14-2-231(a)(3) that articles of merger explain why no shareholder vote was required, if none occurred. Section14-2-1105 omits the elaborate filing and publication requirements contained in § 14-2-213, although modified publication requirements have been restored in Section14-2-1105.1. The provisions of subsection (b) dealing with the effective date of a merger are substantially similar to those of former § 216(a). Provisions requiring the corporation to obtain a certificate for reservation of a corporate name in former § 14-2-213(b) were also omitted.

Note to 1989 Amendment The 1989 amendment added the phrase "or share exchange" to subsection (b) after the first reference to "merger" to correct an omission in the 1988 enactment of the Code.

Note to 1990 Amendment The 1990 amendment adds to the contents of a certificate of merger or share exchange either a statement that no shareholder approval was required in connection with the transaction or a statement that such approval has been duly obtained.

Cross-References Approval of merger or share exchange, see § 14-2-1101 et seq. "Deliver" includes mail, see § 14-2-140. Effective time and date of filing, see § 14-2-123. Filing fees, see § 14-2-122. Filing requirements, see § 14-2-120. Publication of notice of merger or share exchange, see § 14-2-1105.1. Short form merger, see § 14-2-1104. Voting by voting group, see §§ 14-2-725 &14-2-726. "Voting group" defined, see § 14-2-140.

RESEARCH REFERENCES

Am. Jur. 2d.

- 19 Am. Jur. 2d, Corporations, § 2232.

C.J.S.

- 19 C.J.S., Corporations, § 894 et seq.

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