8957 - Approval of merger or consolidation.
§ 8957. Approval of merger or consolidation. (a) Preparation of plan of merger or consolidation.--A plan of merger or consolidation, as the case may be, shall be prepared, setting forth: (1) The terms and conditions of the merger or consolidation. (2) If the surviving or new limited liability company is or is to be a domestic limited liability company: (i) in the case of a merger, any changes desired to be made in the certificate of organization or operating agreement, which may include a restatement of either or both; or (ii) in the case of a consolidation: (A) all of the statements required by this chapter to be set forth in a restated certificate of organization; and (B) the written provisions, if any, of the operating agreement. (3) The manner and basis of converting the membership interests of each company into membership interests, securities or obligations of the surviving or new company, as the case may be, and, if any of the membership interests of any of the companies that are parties to the merger or consolidation are not to be converted solely into membership interests, securities or obligations of the surviving or new company, the membership interests, securities or obligations of any other person or cash, property or rights that the holders of such membership interests are to receive in exchange for, or upon conversion of, such membership interests, and the surrender of any certificates evidencing them, which securities or obligations, if any, of any other person or cash, property or rights may be in addition to or in lieu of the membership interests, securities or obligations of the surviving or new company. (4) Such other provisions as are deemed desirable. (b) Reference to outside facts.--Any of the terms of the plan may be made dependent upon facts ascertainable outside of the plan if the manner in which the facts will operate upon the terms of the plan is set forth in the plan. Such facts may include, without limitation, actions or events within the control of or determinations made by a party to the plan or a representative of a party to the plan. (c) Post-adoption amendment of plan of merger or consolidation.--A plan of merger or consolidation may contain a provision that the managers, if any, of the constituent companies may amend the plan at any time prior to its effective date, except that an amendment made subsequent to any adoption of the plan by the members of any constituent domestic company shall not, without the approval of the members, change: (1) The amount or kind of membership interests, obligations, cash, property or rights to be received in exchange for or on conversion of all or any of the membership interests of the constituent domestic company adversely to the holders of those membership interests. (2) Any provision of the certificate of organization or operating agreement of the surviving or new company as it is to be in effect immediately following consummation of the merger or consolidation except provisions that may be amended without the approval of the members. (3) Any of the other terms and conditions of the plan if the change would adversely affect the holders of any membership interests of the constituent domestic company. (d) Proposal of merger or consolidation.--Every merger or consolidation shall be proposed, in the case of each domestic limited liability company that is managed by one or more managers, by the adoption by the managers of a resolution approving the plan of merger or consolidation and, in any other case, in accordance with any applicable procedures specified in the operating agreement. Except where the approval of the members is unnecessary under this subchapter or the operating agreement, the plan shall be submitted to a vote of the members entitled to vote thereon at a regular or special meeting of the members. (e) Party to plan.--An association that approves a plan in its capacity as a member or creditor of a merging or consolidating company or that furnishes all or a part of the consideration contemplated by a plan does not thereby become a party to the merger or consolidation for the purposes of this subchapter. (f) Notice of meeting of members.--Written notice of the meeting of members that will act on the proposed plan shall be given to each member of record, whether or not entitled to vote thereon, of each domestic limited liability company that is a party to the merger or consolidation. There shall be included in or enclosed with the notice a copy of the proposed plan or a summary thereof. The provisions of this subsection may not be relaxed by any provision of the certificate of organization or operating agreement. (g) Adoption of plan by members.--The plan of merger or consolidation shall be adopted upon receiving a majority of the votes cast by all members, if any, entitled to vote thereon of each of the domestic limited liability companies that is a party to the merger or consolidation and, if any class of members is entitled to vote thereon as a class, a majority of the votes cast in each class vote. A proposed plan of merger or consolidation shall not be deemed to have been adopted by a company that is managed by one or more managers unless it has also been approved by the managers, regardless of the fact that the managers have directed or suffered the submission of the plan to the members for action. (h) Adoption by managers.-- (1) Unless otherwise required by a written provision of the operating agreement, a plan of merger or consolidation shall not require the approval of the members of a company that is managed by one or more managers if: (i) the plan, whether or not the company is the surviving company, does not alter the status of the company as a domestic limited liability company or alter in any respect the provisions of its certificate of organization or operating agreement, except changes that may be made without action by the members; and (ii) each membership interest outstanding immediately prior to the effective date of the merger or consolidation is to continue as or to be converted into, except as may be otherwise agreed by the holder thereof, an identical membership interest in the surviving or new company after the effective date of the merger or consolidation. (2) If a merger or consolidation is effected pursuant to paragraph (1), the plan of merger or consolidation shall be deemed adopted by the company when it has been adopted by the managers pursuant to subsection (d). (i) Termination of plan.--Prior to the time when a merger or consolidation becomes effective, the merger or consolidation may be terminated pursuant to provisions therefor, if any, set forth in the plan. If a certificate of merger or consolidation has been filed in the department prior to the termination, a certificate of termination executed by each company that is a party to the merger or consolidation, unless the plan permits termination by less than all of the companies, in which case the certificate shall be executed on behalf of the company exercising the right to terminate, shall be filed in the department. The certificate of termination shall set forth: (1) A copy of the certificate of merger or consolidation relating to the plan that is terminated. (2) A statement that the plan has been terminated in accordance with the provisions therefor set forth therein. See sections 134 (relating to docketing statement), 135 (relating to requirements to be met by filed documents), 138 (relating to statement of correction) and 8907 (relating to execution of documents). (j) Authorization by foreign limited liability companies.-- The plan of merger or consolidation shall be authorized, adopted or approved by each foreign limited liability company that desires to merge or consolidate in accordance with the laws of the jurisdiction in which it is organized. (June 22, 2001, P.L.418, No.34, eff. 60 days) 2001 Amendment. Act 34 amended subsecs. (b), (c), (e) and (i).