Application of § 4-37-404 after merger

1. Law
2. Arkansas Code
3. Business and Commercial Law
4. Corporations and Associations
5. Uniform Protected Series Act
6. Entity Transactions Restricted
7. Application of § 4-37-404 after merger

1. (a) A creditor's right that existed under § 4-37-404 immediately before a merger under § 4-37-604 may be enforced after the merger in accordance with the following rules:

   1. (1) A creditor's right that existed immediately before the merger against the surviving company, a continuing protected series, or a relocated protected series continues without change after the merger.

   2. (2) A creditor's right that existed immediately before the merger against a nonsurviving company:

      1. (A) may be asserted against an asset of the non-surviving company which vested in the surviving company as a result of the merger; and

      2. (B) does not otherwise change.

   3. (3) Subject to subsection (b), the following rules apply:

      1. (A) In addition to the remedy stated in subdivision (a)(1), a creditor with a right under § 4-37-404 which existed immediately before the merger against a non-surviving company or a relocated protected series may assert the right against:

         1. (i) an asset of the surviving company, other than an asset of the non-surviving company which vested in the surviving company as a result of the merger;

         2. (ii) an asset of a continuing protected series; or

         3. (iii) an asset of a protected series established by the surviving company as a result of the merger;

         4. (iv) if the creditor's right was against an asset of the non-surviving company, an asset of a relocated series; or

         5. (v) if the creditor's right was against an asset of a relocated protected series, an asset of another relocated protected series.

      2. (B) In addition to the remedy stated in subdivision (a)(2), a creditor with a right that existed immediately before the merger against the surviving company or a continuing protected series may assert the right against:

         1. (i) an asset of a relocated protected series; or

         2. (ii) an asset of a non-surviving company which vested in the surviving company as a result of the merger.

2. (b) For the purposes of subdivision (a)(3) and § 4-37-404(b)(1)(A), § 4-37-404(b)(2)(A), and § 4-37-404(b)(3)(A), the incurrence date is deemed be the date on which the merger becomes effective.

3. (c) A merger under § 4-37-604 does not affect the manner in which § 4-37-404 applies to a liability incurred after the merger.

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