The Florida Senate

608.4381  Action on plan of merger.--

(1)  Unless the articles of organization or the regulations of a limited liability company require a greater than majority vote, the plan of merger shall be approved in writing by a majority of the managers of a limited liability company that is a party to the merger in which management is not reserved to its members. Unless the articles of organization or the regulations of a limited liability company require a greater than majority vote or provide for another method of determining the voting rights of each of its members, and whether or not management is reserved to its members, the plan of merger shall be approved in writing by a majority of the members of a limited liability company that is a party to the merger, and, if applicable, the vote of each member shall be weighted in accordance with s. 608.4231(1)(b); provided, unless the articles of organization or the regulations of the limited liability company require a greater than majority vote or provide for another method of determining the voting rights of each of its members, if there is more than one class or group of members, the merger shall be approved by a majority of the members of each such class or group, and, if applicable, the vote of each member shall be weighted in accordance with s. 608.4231(1)(b).

(2)  In addition to the approval required by subsection (1), if the surviving entity is a partnership, no member of a limited liability company that is a party to the merger shall, as a result of the merger, become a general partner of the surviving entity unless such member specifically consents in writing to becoming a general partner of the surviving entity and unless such written consent is obtained from each such member who, as a result of the merger, would become a general partner of the surviving entity, such merger shall not become effective under s. 608.4383. Any member providing such consent in writing shall be deemed to have voted in favor of the plan of merger for purposes of s. 608.4384.

(3)  All members of each limited liability company that is a party to the merger shall be given written notice of any meeting or other action with respect to the approval of a plan of merger as provided in subsection (4), not fewer than 30 or more than 60 days before the date of the meeting at which the plan of merger shall be submitted for approval by the members of such limited liability company; provided, if the plan of merger is submitted to the members of the limited liability company for their written approval or other action without a meeting, such notification shall be given to each member not fewer than 30 or more than 60 days before the effective date of the merger. Pursuant to s. 608.455, the notification required by this subsection may be waived in writing by the person or persons entitled to such notification.

(4)  The notification required by subsection (3) shall be in writing and shall include:

(a)  The date, time, and place of the meeting, if any, at which the plan of merger is to be submitted for approval by the members of the limited liability company, or, if the plan of merger is to be submitted for written approval or by other action without a meeting, a statement to that effect.

(b)  A copy or summary of the plan of merger.

(c)  A clear and concise statement that, if the plan of merger is effected, members dissenting therefrom may be entitled, if they comply with the provisions of s. 608.4384 regarding the rights of dissenting members, to be paid the fair value of their interests, which shall be accompanied by a copy of s. 608.4384.

(d)  A statement of, or a statement of the method of determining, the "fair value," as defined in s. 608.4384(1)(b), of an interest in the limited liability company, in the case of a limited liability company in which management is not reserved to its members, as determined by the managers of such limited liability company, which statement may consist of a reference to the applicable provisions of such limited liability company's articles of organization or regulations that determine the fair value of an interest in the limited liability company for such purposes, and which shall constitute an offer by the limited liability company to purchase at such fair value any interests of a "dissenter," as defined in s. 608.4384(1)(a), unless and until such dissenter's right to receive the fair value of his interests in the limited liability company is terminated pursuant to s. 608.4384(8).

(e)  The date on which such notification was mailed or delivered to the members.

(f)  Any other information concerning the plan of merger.

(5)  The notification required by subsection (3) shall be deemed to be given at the earliest date of:

(a)  The date such notification is received;

(b)  Five days after the date such notification is deposited in the United States mail addressed to the member at his address as it appears in the books and records of the limited liability company, with postage thereon prepaid;

(c)  The date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee; or

(d)  The date such notification is given in accordance with the provisions of the articles of organization or the regulations of the limited liability company.

(6)  A plan of merger may provide for the manner, if any, in which the plan of merger may be amended at any time before the effective date of the merger, except after the approval of the plan of merger by the members of a limited liability company that is a party to the merger, the plan of merger may not be amended to:

(a)  Change the amount or kind of interests, partnership interests, shares, obligations, other securities, cash, rights, or any other property to be received by the members of such limited liability company in exchange for or on conversion of their interests;

(b)  If the surviving entity is a limited liability company, change any term of the articles of organization or the regulations of the surviving entity, except for changes that otherwise could be adopted without the approval of the members of the surviving entity;

(c)  If the surviving entity is not a limited liability company, change any term of the articles of incorporation or comparable governing document of the surviving entity, except for changes that otherwise could be adopted by the board of directors or comparable representatives of the surviving entity; or

(d)  Change any of the terms and conditions of the plan of merger if any such change, alone or in the aggregate, would materially and adversely affect the members, or any class or group of members, of such limited liability company.

If an amendment to a plan of merger is made in accordance the plan and articles of merger have been filed with the Department of State, amended articles of merger executed by each limited liability company and other business entity that is a party to the merger shall be filed with the Department of State prior to the effective date of the merger.

(7)  Unless the limited liability company's articles of organization or regulations or the plan of merger provide otherwise, notwithstanding the prior approval of the plan of merger by any limited liability company that is a party to the merger in which management is not reserved to its members, and at any time prior to the filing of articles of merger with the Department of State, the planned merger may be abandoned, subject to any contractual rights, by any such limited liability company by the affirmative vote of a majority of its managers without further action by its members, in accordance with the procedure set forth in the plan of merger or, if none is set forth, in the manner determined by the managers of such limited liability company.

History.--s. 5, ch. 98-101.