Texas Business Organizations Code 10.002 – Plan of Merger: Required Provisions
(a) A plan of merger must be in writing and must include:
(1) the name of each organization that is a party to the merger;
(2) the name of each organization that will survive the merger;
(3) the name of each new organization that is to be created by the plan of merger;
(4) a description of the organizational form of each organization that is a party to the merger or that is to be created by the plan of merger and its jurisdiction of formation;
(5) the manner and basis, including use of a formula, of converting or exchanging any of the ownership or membership interests of each organization that is a party to the merger into:
(A) ownership interests, membership interests, obligations, rights to purchase securities, or other securities of one or more of the surviving or new organizations;
(B) cash;
(C) other property, including ownership interests, 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);
(6) the identification of any of the ownership or membership interests of an organization 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 organization survives the merger;
(7) the certificate of formation of each new domestic filing entity to be created by the plan of merger;
(8) the governing documents of each new domestic nonfiling entity to be created by the plan of merger; and
(9) the governing documents of each non-code organization that:
(A) is to survive the merger or to be created by the plan of merger; and
(B) is an entity that is not:
(i) organized under the laws of any state or the United States; or
(ii) required to file its certificate of formation or similar document under which the entity is organized with the appropriate governmental authority.
(b) An item required by Subsections (a)(7)-(9) may be included in the plan of merger by an attachment or exhibit to the plan.
Terms Used In Texas Business Organizations Code 10.002
- Attachment: A procedure by which a person's property is seized to pay judgments levied by the court.
- Certificate of formation: means :
(A) the document required to be filed with the filing officer under Chapter 3 to form a filing entity; and
(B) if appropriate, a restated certificate of formation and all amendments of an original or restated certificate of formation. See Texas Business Organizations Code 1.002 - Conversion: means :
(A) the continuance of a domestic entity as a non-code organization of any type;
(B) the continuance of a non-code organization as a domestic entity of any type;
(C) the continuance of a domestic entity of one type as a domestic entity of another type;
(D) the continuance of a domestic entity of one type as a foreign entity of the same type that may be treated as a domestication, continuance, or transfer transaction under the laws of the jurisdiction of formation of the foreign entity; or
(E) the continuance of a foreign entity of one type as a domestic entity of the same type that may be treated as a domestication, continuance, or transfer transaction under the laws of the jurisdiction of formation of the foreign entity. See Texas Business Organizations Code 1.002 - Dependent: A person dependent for support upon another.
- Domestic: means , with respect to an entity, that the entity is formed under this code or the entity's internal affairs are governed by this code. See Texas Business Organizations Code 1.002
- Entity: means a domestic entity or foreign entity. See Texas Business Organizations Code 1.002
- Filing entity: means a domestic entity that is a corporation, limited partnership, limited liability company, professional association, cooperative, or real estate investment trust. See Texas Business Organizations Code 1.002
- Governing documents: means :
(A) in the case of a domestic entity:
(i) the certificate of formation for a domestic filing entity or the document or agreement under which a domestic nonfiling entity is formed; and
(ii) the other documents or agreements adopted by the entity under this code to govern the formation or the internal affairs of the entity; or
(B) in the case of a foreign entity, the instruments, documents, or agreements adopted under the law of its jurisdiction of formation to govern the formation or the internal affairs of the entity. See Texas Business Organizations Code 1.002 - in writing: includes any representation of words, letters, or figures, whether by writing, printing, or other means. See Texas Government Code 312.011
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Membership interest: means a member's interest in an entity. See Texas Business Organizations Code 1.002
- Merger: means :
(A) the division of a domestic entity into two or more new domestic entities or other organizations or into a surviving domestic entity and one or more new domestic or foreign entities or non-code organizations; or
(B) the combination of one or more domestic entities with one or more domestic entities or non-code organizations resulting in:
(i) one or more surviving domestic entities or non-code organizations;
(ii) the creation of one or more new domestic entities or non-code organizations; or
(iii) one or more surviving domestic entities or non-code organizations and the creation of one or more new domestic entities or non-code organizations. See Texas Business Organizations Code 1.002 - Non-code organization: means an organization other than a domestic entity. See Texas Business Organizations Code 1.002
- Nonfiling entity: means a domestic entity that is not a filing entity. See Texas Business Organizations Code 1.002
- Organization: means a corporation, limited or general partnership, limited liability company, business trust, real estate investment trust, joint venture, joint stock company, cooperative, association, bank, insurance company, credit union, savings and loan association, or other organization, regardless of whether the organization is for-profit, nonprofit, domestic, or foreign. See Texas Business Organizations Code 1.002
- Party to the merger: means a domestic entity or non-code organization that under a plan of merger is divided or combined by a merger. See Texas Business Organizations Code 1.002
- Person: means an individual or a corporation, partnership, limited liability company, business trust, trust, association, or other organization, estate, government or governmental subdivision or agency, or other legal entity, or a protected series or registered series of a domestic limited liability company or foreign entity. See Texas Business Organizations Code 1.002
- Plan of merger: means a document that conforms with the requirements of Sections Texas Business Organizations Code 1.002
- Property: includes tangible and intangible property and an interest in that property. See Texas Business Organizations Code 1.002
- United States: includes a department, bureau, or other agency of the United States of America. See Texas Government Code 311.005
(c) If the plan of merger provides for a manner and basis of converting or exchanging an ownership or membership interest that may be converted or exchanged in a manner or basis different than any other ownership or membership interest of the same class or series of the ownership or 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 (a)(5). A plan of merger may provide for cancellation of an ownership or membership interest while providing for the conversion or exchange of other ownership or membership interests of the same class or series as the ownership or membership interest to be canceled.
(d) 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.