Business Organizations Code § 101.633

Sec. 101.633. MERGER AMONG MERGING SERIES OF SAME LIMITED LIABILITY COMPANY. (a) For purposes of the section and Sections 101.634 through 101.636: (1) "Merger" means: (A) the division of a merging series into: (i) two or more new protected series or registered series; or (ii) a surviving merging series and one or more new protected series or registered series; or (B) the combination of one or more merging series with one or more merging series resulting in: (i) one or more surviving merging series; (ii) the creation of one or more new protected series or registered series; or (iii) one or more surviving merging series and the creation of one or more new protected series or registered series. (2) "Merging series" means each and all protected series and registered series that are parties to a merger. (3) "Party to a merger" means a protected series or registered series that under a plan of merger is divided or combined by a merger. (4) "Plan of merger" means a document that conforms to the requirements of this section. (b) One or more merging series of the same limited liability company may effect a merger as provided by a plan of merger that is approved in accordance with this section and that complies with Sections 101.634 through 101.636. The plan of merger shall provide for one or more surviving or new protected series or registered series of the same limited liability company. (c) Unless otherwise provided by the company agreement, the plan of merger shall be approved by each protected series or registered series that is a party to the merger. If the company agreement specifies the manner of adopting a plan of merger for the merging series, the amendment must be adopted as specified in the company agreement. If the company agreement does not specify the manner of adopting a plan of merger for the merging series but specifies the manner of adopting an amendment to the provisions of the company agreement governing the merging series, the plan of merger must be adopted as specified in the company agreement for the adoption of an amendment to the provisions of the company agreement governing the merging series. If the company agreement does not specify the manner of adopting a plan of merger for the merging series or an amendment to the provisions of the company agreement governing the merging series, the amendment must be approved by members of that merging series who own more than 50 percent of the then-current percentage or other interest in the profits of that merging series owned by all of the members of that merging series. If the plan of merger provides for any amendment to the company agreement, the plan of merger must also be approved in the manner required by this subchapter for the approval of that amendment. (d) A plan of merger must be in writing and must include: (1) the name of each merging series that is a party to the merger; (2) the name of each merging series that will survive the merger; (3) the name of each new protected series or registered series that is to be created by the plan of merger; (4) the manner and basis, including use of a formula, of converting or exchanging any of the membership interests of each merging series that is a party to the merger into: (A) membership interests, obligations, rights to purchase securities, or other securities of one or more of the surviving merging series or new protected series or registered series; (B) cash; (C) other property, including membership interests, obligations, rights to purchase securities, or other securities of any other person or entity; or (D) any combination of the items described by Paragraphs (A)-(C); (5) the identification of any of the membership interests of a merging series that is a party to the merger that are: (A) to be canceled rather than converted or exchanged; or (B) to remain outstanding rather than converted or exchanged if the protected series or registered series survives the merger; (6) any amendment to the company agreement that may be necessary to reflect the merger of the merging series and the establishment of any new protected series or registered series that is to be created by the merger; (7) any amendment to the certificate of registered series of any registered series that is a surviving registered series, including a change in the name of the surviving registered series, that will be effected by the merger; and (8) the certificate of registered series of each new registered series to be created by the plan of merger. (e) An item required by Subsection (d)(6), (7), or (8) may be included in the plan of merger by an attachment or exhibit to the plan. (f) If the plan of merger provides for a manner and basis of converting or exchanging a membership interest that may be converted or exchanged in a manner or basis different than any other membership interest of the same class of the membership interest, the manner and basis of conversion or exchange must be included in the plan of merger in the same manner as provided by Subsection (d)(4). A plan of merger may provide for cancellation of a membership interest while providing for the conversion or exchange of other membership interests of the same class as the membership interest to be canceled. (g) Any of the terms of the plan of merger may be made dependent on facts ascertainable outside of the plan if the manner in which those facts will operate on the terms of the merger is clearly and expressly stated in the plan. In this subsection, "facts" includes the occurrence of any event, including a determination or action by any person. (h) If more than one series is to survive or to be created by the plan of merger, the plan of merger must include: (1) the manner and basis of allocating and vesting the property of each merging series that is a party to the merger among one or more of the surviving or new series; and (2) the manner and basis of allocating each liability and obligation of each merging series that is a party to the merger, or adequate provisions for the payment and discharge of each liability and obligation, among one or more of the surviving or new series. (i) A plan of merger may include: (1) amendments to provisions of the company agreement relating to any surviving merging series or any new protected series or registered series to be created by the merger; and (2) any other provisions relating to the merger that are not required by this subchapter. (j) Notwithstanding prior approval, a plan of merger may be terminated or amended under a provision for that termination or amendment contained in the plan of merger. (k) A merging series may not merge under this section if a member of that merging series that is a party to the merger will, as a result of the merger, become subject to liability under the company agreement as a member, without that member's consent, for a liability or other obligation of any other person for which the member is not liable under the company agreement as a member of that merging series before the merger. Added by Acts 2021, 87th Leg., R.S., Ch. 43 (S.B. 1523), Sec. 1, eff. June 1, 2022. Amended by: Acts 2023, 88th Leg., R.S., Ch. 27 (S.B. 1514), Sec. 49, eff. September 1, 2023. Acts 2023, 88th Leg., R.S., Ch. 27 (S.B. 1514), Sec. 50, eff. September 1, 2023.