The section sets the vote needed to approve a fundamental action, including different rules depending on whether the corporation has voting members, member-managed governance, classes of members, or no members.
Sec. 22.164. VOTE REQUIRED TO APPROVE FUNDAMENTAL ACTION. (a) In this section, "fundamental action" means: (1) an amendment of a certificate of formation, including an amendment required for the cancellation of an event requiring winding up in accordance with Section 11.152(b); (2) a voluntary winding up under Chapter 11; (3) a revocation of a voluntary decision to wind up under Section 11.151; (4) a cancellation of an event requiring winding up under Section 11.152(a); (5) a reinstatement under Section 11.202; (6) a distribution plan under Section 22.305; (7) a plan of merger under Subchapter F; (8) a sale of all or substantially all of the assets of a corporation under Subchapter F; (9) a plan of conversion under Subchapter F; or (10) a plan of exchange under Subchapter F. (b) Except as otherwise provided by Subsection (c) or (d) or the certificate of formation in accordance with Section 22.162, the vote required for approval of a fundamental action is: (1) at least two-thirds of the votes that members present in person or by proxy are entitled to cast at the meeting at which the action is submitted for a vote, if the corporation has members with voting rights; (2) at least two-thirds of the votes of members present at the meeting at which the action is submitted for a vote, if the management of the affairs of the corporation is vested in the corporation's members under Section 22.202; or (3) the affirmative vote of the majority of the directors in office, if the corporation has no members or has no members with voting rights. (c) If any class of members is entitled to vote on the fundamental action as a class by the terms of the certificate of formation or the bylaws, the vote required for the approval of the fundamental action is the vote required by Subsection (b)(1) and at least two-thirds of the votes that the members of each class in person or by proxy are entitled to cast at the meeting at which the action is submitted for a vote. (d) If the corporation has no members or has no members with voting rights and the corporation does not hold any assets and has not solicited any assets or otherwise engaged in activities, the vote required for approval of a fundamental action consisting of an amendment to the certificate of formation to cancel an event requiring winding up or any of the actions described by Subsections (a)(2) through (a)(6) is the affirmative vote of a majority of the organizers or a majority of the directors in office. Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006. Amended by: Acts 2007, 80th Leg., R.S., Ch. 688 (H.B. 1737), Sec. 89, eff. September 1, 2007. Acts 2015, 84th Leg., R.S., Ch. 32 (S.B. 860), Sec. 28, eff. September 1, 2015. SUBCHAPTER E. MANAGEMENT