Nonprofit Corporation Merger Approval and Filing Requirements in North Dakota

At a glance

Requirements one by one

Parties and plan

Sections 10-33-85 and -92 allow domestic nonprofit corporations to merge into a corporation governed by chapter 10-33, including a combination with a foreign corporation if its organizing law permits it. Section 10-33-86 requires a plan naming constituents and survivor, setting terms and the basis for converting memberships, and describing survivor article amendments.

Director and member approval

If a constituent has voting members, a majority of all directors adopts a resolution approving the plan and sending it to members (§ 10-33-87(2)). The plan then needs a majority of members with voting rights who vote on the action, unless the articles or bylaws require a greater vote. If none has voting rights, a majority of all directors adopts the plan at a board meeting after notice with a plan copy (§ 10-33-87(3)).

Member notice

Section 10-33-87(2) requires notice to each voting member with a copy or summary of the plan. Under § 10-33-68(4), ordinary member meeting notice is at least five and at most 50 days beforehand, subject to a shorter period in the articles or bylaws; it states date, time and place, proxy procedure if applicable, and special-meeting purpose.

Charitable property and state review

Under § 10-33-122(1)–(4), a corporation holding charitable-purpose assets or exempt under § 501(c)(3) generally notifies the Attorney General and waits 45 days before conveying assets in the merger, unless the Attorney General waives all or part of the wait. A written extension can add one 30-day period. Subsection 7 removes those notice and waiting duties for a merger with or consolidation into a § 501(c)(3) organization, but requires a copy of the merger certificate to be sent to the Attorney General. Section 10-33-122(6) says the Attorney General's inaction is not approval. Section 10-33-85(3) also points to the separate hospital and nursing-home transaction rule in § 10-33-144 when applicable.

Articles and effective date

Under § 10-33-88, each constituent signs articles containing the plan, a statement of required approvals, and a statement of Attorney General notice and expiration or waiver of any wait, or why that rule does not apply. The articles are filed with the Secretary of State, who issues a certificate stating the effective date. Section 10-33-90(1) makes the merger effective on filing or on a later date in the articles.

Abandonment

Before the effective date, § 10-33-89 allows abandonment by the specified constituent approvals, under a plan provision whose conditions are met, or by a majority-of-all-directors resolution of an abandoning constituent, subject to contract rights. If the merger articles were filed but are not yet effective, articles of abandonment must be filed. Sections 10-33-85–92 state no distinct parent-subsidiary shortcut.

What trips people up

The director vote uses all directors as its denominator, while the member vote counts voting members who actually vote (§ 10-33-87). The Attorney General certificate-copy exception applies to a qualifying § 501(c)(3) merger; it is not a general waiver of the charitable notice rule (§ 10-33-122(7)).

Common questions

Does a nonvoting membership require a member vote? Section 10-33-87(3) uses the board route when the corporation has no member with voting rights on the merger.

Can the parties stop after filing but before the effective date? Yes, if a § 10-33-89 abandonment route applies; they must file articles of abandonment while the merger is still pending.

Statutes and sources

• N.D. Cent. Code § 10-33-85 (accessed 2026-10-03): “10-33-85. Merger, consolidation, or transfer. 1. Two or more corporations may merge or consolidate, resulting in a single corporation subject to this chapter. A merger or consolidation must be made as provided in sections 10-33-86 through 10-33-92. 2. A corporation may sell, lease, transfer, or dispose of all or substantially all of its property and assets under section 10-33-94. 3. If applicable, a corporation shall comply with sections 10-33-122 and 10-33-144 before the corporation may merge, consolidate, sell, lease, transfer, or dispose of all or substantially all of the corporation's assets.”
• N.D. Cent. Code § 10-33-86 (accessed 2026-10-03): “10-33-86. Plan of merger or consolidation. A plan of merger or consolidation must contain: 1. The names of the corporations proposing to merge or consolidate; 2. The name of the surviving or new corporation; 3. The terms and conditions of the proposed merger or consolidation; 4. In the case of a merger, the manner and basis of converting the memberships of the constituent corporations into memberships of the surviving corporation or of any other corporation; 5. In the case of a merger, a statement of amendments to the articles of the surviving corporation proposed as part of the merger; 6. In the case of a consolidation, the provisions required by section 10-33-06 to be set out in the articles of the new corporation; and 7. Other provisions with respect to the proposed merger or consolidation which are considered necessary or desirable.”
• N.D. Cent. Code § 10-33-87 (accessed 2026-10-03): “10-33-87. Plan approval. 1. A plan of merger or consolidation must be approved and adopted by each constituent corporation as provided in this section. 2. If a constituent corporation has members with voting rights with respect to mergers and consolidations as required by section 10-33-42, the board of directors of the corporation shall adopt a resolution by the affirmative vote of a majority of all directors approving a proposed plan of merger or consolidation and directing that the plan be submitted to a vote at a meeting of the members with voting rights. Notice of the meeting must be given to each member with voting rights, accompanied by a copy or summary of the proposed plan. Unless the articles or bylaws require a greater vote, the plan of merger or consolidation is adopted upon receiving the affirmative vote of a majority of the members with voting rights voting on the action. 3. When a constituent corporation does not have a member with voting rights and unless the articles or bylaws require a greater vote, a plan of merger or consolidation is adopted at a meeting of the board of directors of the corporation upon receiving the affirmative votes of a majority of all directors. Notice of the meeting must be given to all directors accompanied by a copy of the proposed plan of merger or consolidation.”
• N.D. Cent. Code § 10-33-88 (accessed 2026-10-03): “10-33-88. Articles of merger or consolidation - Certificate. 1. Upon receiving the approval required by section 10-33-87 and after compliance with section 10-33-122 and section 10-33-144, if applicable, articles of merger or consolidation must be prepared that contain: a. The plan of merger or consolidation; b. A statement that the plan has been approved by each corporation under this chapter; and c. A statement that the notice to the attorney general required by section 10-33-122 or 10-33-144 has been given and the waiting period has expired or has been waived by the attorney general or a statement that section 10-33-122 or 10-33-144 is not applicable. 2. The articles of merger or consolidation must be signed on behalf of each constituent corporation and filed with the secretary of state. 3. The secretary of state shall issue a certificate of merger to the surviving corporation or its legal representative or a certificate of consolidation and incorporation to the new corporation. The certificate must contain the effective date of merger or consolidation.”
• N.D. Cent. Code § 10-33-89 (accessed 2026-10-03): “10-33-89. Abandonment. 1. After a plan of merger or consolidation has been approved by each constituent corporation under section 10-33-87 and before the effective date of the plan, it may be abandoned: a. If each constituent corporation has approved the abandonment at a meeting: (1) By a majority of the members with voting rights voting on the issue; or (2) If the corporation does not have voting members, by a majority of all directors; or b. If the plan itself provides for abandonment and the conditions for abandonment in the plan are met. 2. A plan of merger or consolidation may be abandoned after it has been approved by each constituent corporation and before the effective date of the plan, by a resolution approved by a majority of all directors of the constituent corporation abandoning the plan of merger or consolidation, subject to the contract rights of any other person under the plan. 3. If articles of merger or consolidation have been filed with the secretary of state, but have not yet become effective, articles of abandonment that comply with subsection 4 must be filed with the secretary of state by: a. The constituent corporations, in the case of abandonment under subdivision a of subsection 1; b. The constituent corporations or any one of them, in the case of abandonment under subdivision b of subsection 1; or c. The abandoning corporation in the case of abandonment under subsection 2. 4. The articles of abandonment must contain: a. The names of the constituent corporations; b. The provision of this section under which the plan is abandoned; and c. If the plan is abandoned under subsection 2, the text of the resolution approved by the directors abandoning the plan.”
• N.D. Cent. Code § 10-33-90 (accessed 2026-10-03): “10-33-90. Effective date of merger or consolidation - Effect. 1. A merger or consolidation is effective when the articles of merger or consolidation are filed with the secretary of state or on a later date named in the articles. 2. When a merger or consolidation becomes effective: a. The constituent corporations become a single corporation, which, in case of merger, is a surviving corporation or, in case of consolidation, is a new corporation. b. Subject to subdivision c and section 10-33-91, and except for the surviving corporation, the separate existence of the constituent corporations ends. c. When the agreement of merger or consolidation expressly provides for the continuance of the corporate existence of a constituent corporation and expressly declares the purpose for the continuance, the corporate existence of the constituent corporation continues in the single corporation for the purpose declared in the agreement. d. The single corporation has the rights, privileges, immunities, and powers, and is subject to the duties and liabilities, of a corporation formed under this chapter. e. The single corporation has the rights, privileges, immunities, powers, and franchises, public and private, of each constituent corporation. f. All real or personal property, debts, including debts arising from a subscription for membership, and interests belonging to each constituent corporation are transferred to the single corporation without further act or deed. g. Interest in real estate possessed by a constituent corporation does not revert to the grantor, or otherwise, nor is it in any way impaired by reason of the merger or consolidation; and the personal property of a constituent corporation does not revert by reason of the merger or consolidation. h. Except when the will or other instrument provides otherwise, and subject to section 10-33-95, a devise, bequest, gift, or grant contained in a will or other instrument, in trust or otherwise, made before or after the merger or consolidation has become effective, to or for any of the constituent corporations, inures to the single corporation. i. Debts, liabilities, and obligations of each constituent corporation become the debts, liabilities, and obligations of the single corporation, just as if the debts, liabilities, and obligations had been incurred or contracted by the single corporation. j. Existing claims or a pending action or proceeding by or against a constituent corporation may be prosecuted to judgment as though the merger or consolidation had not been effected, or the single corporation may be substituted for the constituent corporation. k. The liabilities of the members, officers, directors, or similar groups or persons, however denominated, of a constituent corporation are not affected by the merger or consolidation of a constituent corporation. l. The rights of creditors or liens upon the property of a constituent corporation are not impaired by the merger or consolidation, but the liens are limited to the property upon which they were liens immediately before the merger or consolidation. m. The articles of the surviving corporation are considered to be amended to the extent that changes in its articles are contained in a plan of merger. n. In the case of a consolidation, the plan of consolidation constitutes the articles of incorporation of the new corporation. 3. a. For purposes of this subsection, "fiduciary capacity" means the capacity of a trustee, executor, administrator, personal representative, guardian, conservator, receiver, escrow agent, agent for the investment of money, attorney in fact, or a similar capacity. b. Except when the will, declaration of trust, or other instrument provides otherwise, the single corporation is, without further act or deed, the successor of the constituent corporation in the fiduciary capacity in which a constituent corporation was acting at the time of the merger or consolidation and is liable to any beneficiary as fully as if the constituent corporation had continued its separate corporate existence. c. If a constituent corporation is nominated and appointed, or has been nominated and appointed, in a fiduciary capacity in a will, declaration of trust, or other instrument, order, or judgment before or after the merger or consolidation, then even if the will or other instrument, order, or judgment does not become operative or effective until after the merger or consolidation becomes effective, every fiduciary capacity and the rights, powers, privileges, duties, discretions, and responsibilities provided for in the nomination or appointment fully vest in and are to be exercised by the single corporation, whether there are one or more successive mergers or consolidations.”
• N.D. Cent. Code § 10-33-92 (accessed 2026-10-03): “10-33-92. Merger or consolidation with foreign corporation. 1. A corporation may merge or consolidate with a foreign corporation by following the procedures set forth in this section, if the merger or consolidation is permitted by the laws of the state under which the foreign corporation is incorporated. 2. Each corporation shall comply with sections 10-33-85 through 10-33-91 with respect to the merger or consolidation of corporations and each foreign corporation shall comply with the laws under which it was incorporated or by which it is governed. 3. If the single corporation will be incorporated under this chapter, it shall comply with this chapter. 4. If the single corporation will be a foreign corporation and will conduct activities in this state, then it shall comply with the provisions of sections 10-33-125 through 10-33-138 with respect to foreign corporations. In every case the single corporation shall file with the secretary of state: a. An agreement that it may be served with process in this state in a proceeding for the enforcement of an obligation of a constituent corporation; and b. An irrevocable appointment of the secretary of state as its agent to accept service of process in any proceeding and an address to which process may be forwarded as provided in section 10-01.1-13.”
• N.D. Cent. Code § 10-33-122 (accessed 2026-10-03): “10-33-122. Attorney general - Notice to - Waiting period. 1. Except as provided in subsection 7, the following corporations shall notify the attorney general of their intent to dissolve, merge, or consolidate, or to transfer all or substantially all of their assets: a. A corporation that holds assets for a charitable purpose. b. A corporation that is exempt under section 501(c)(3) of the Internal Revenue Code. 2. The notice must be signed on behalf of the corporation by an authorized person and must include: a. The purpose of the corporation that is giving the notice; b. A list of assets owned or held by the corporation for charitable purposes; c. A description of restricted assets and purposes for which the assets were received; d. A description of debts, obligations, and liabilities of the corporation; e. A description of tangible assets being converted to cash and the manner in which they will be sold; f. Anticipated expenses of the transaction, including attorney's fees; g. A list of persons to whom assets will be transferred, if known; h. The purposes of persons receiving the assets; and i. The terms, conditions, or restrictions, if any, to be imposed on the transferred assets. 3. Subject to subsection 4, a corporation described in subsection 1 may not transfer or convey assets as part of a dissolution, merger, or consolidation, or transfer of assets under section 10-33-94 until forty-five days after it has given written notice to the attorney general, unless the attorney general waives all or part of the waiting period. 4. The attorney general may extend the waiting period under subsection 3 for one additional thirty-day period by notifying the corporation in writing of the extension. The attorney general shall notify the secretary of state if the waiting period is extended. 5. When all or substantially all of the assets of a corporation described in subsection 1 have been transferred or conveyed following expiration or waiver of the waiting period, the board shall deliver to the attorney general a list of persons to whom the assets were transferred or conveyed. The list must include the addresses of each person who received assets and show what assets the person received. 6. Failure of the attorney general to take an action with respect to a transaction under this section does not constitute approval of the transaction and does not prevent the attorney general from taking other action. 7. Subsections 1 through 5 do not apply to a merger with, consolidation into, or transfer of assets to an organization exempt under section 501(c)(3) of the Internal Revenue Code, or any successor section. A corporation that is exempt under this subsection shall send a copy of the certificate of merger or certificate of consolidation and incorporation to the attorney general.”
• N.D. Cent. Code § 10-33-68 (accessed 2026-10-03): “10-33-68. Notice of member meetings. 1. Except as otherwise provided in this chapter, notice of meetings of members must be given to every voting member as of the record date determined under section 10-33-69 unless: a. The meeting is an adjourned meeting and the date, time, and place of the meeting were announced at the time of adjournment, notice is not required unless a new record date for the adjourned meeting is or must be fixed under section 10-33-69; or b. Two consecutive annual meeting notices and notices of any special meetings held during the period between the two annual meetings have been mailed to the member by first-class mail and returned undeliverable. 2. An action or meeting that is taken or held without notice under subdivision b of subsection 1 has the same force and effect as if notice was given. If the member delivers a written notice of the member's current address to the corporation, the notice requirement is reinstated. 3. If notice of an adjourned meeting is required under subdivision a of subsection 1, the date for determination of members entitled to notice and entitled to vote at the adjourned meeting must comply with subsection 1 of section 10-33-69, except that if the date of the meeting is set by court order, the court may provide the original date of determination will continue in effect or fix a new date. 4. The notice: a. In all cases when a specific minimum notice period has not been fixed by law, must be given at least five days before the date of the meeting, or a shorter time provided in the articles or bylaws, and not more than fifty days before the date of the meeting; b. Must contain the date, time, and place of the meeting; c. Must inform members if proxies are permitted at the meeting and, if so, state the procedure for appointing proxies; d. Must contain a statement of the purpose of the meeting, in the case of a special meeting; e. Must contain any other information required by the articles or bylaws, this chapter, or considered necessary or desirable by the board; and f. May contain any other information considered necessary or desirable by the person calling the meeting. 5. A member may waive notice of a meeting of members. a. A waiver of notice by a member entitled to notice is effective: (1) Whether given before, at, or after the meeting; and (2) Whether given in writing, orally, or by attendance. b. Attendance by a member at a meeting is a waiver of notice of that meeting, unless the member: (1) Objects at the beginning of the meeting to the transaction of business because the meeting is not lawfully called or convened; or (2) Objects before a vote on an item of business because the item may not lawfully be considered at that meeting and does not participate in the consideration of the item at that meeting.”