2010 Pennsylvania Code
Title 15 - CORPORATIONS AND UNINCORPORATED ASSOCIATIONS
Chapter 89 - Limited Liability Companies
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).