Sec. 21.459. NO SHAREHOLDER VOTE REQUIREMENT FOR CERTAIN FUNDAMENTAL BUSINESS TRANSACTIONS. (a) Unless required by the corporation's certificate of formation, a plan of merger is not required to be approved by the shareholders of a corporation if:
(1) the corporation is the sole surviving corporation in the merger;
(2) the certificate of formation of the corporation following the merger will not differ from the corporation's certificate of formation before the merger;
(3) immediately after the effective date of the merger, each shareholder of the corporation whose shares were outstanding immediately before the effective date of the merger will hold the same number of shares, with identical designations, preferences, limitations, and relative rights;
(4) the sum of the voting power of the number of voting shares outstanding immediately after the merger and the voting power of securities that may be acquired on the conversion or exercise of securities issued under the merger does not exceed by more than 20 percent the voting power of the total number of voting shares of the corporation that are outstanding immediately before the merger; and
(5) the sum of the number of participating shares that are outstanding immediately after the merger and the number of participating shares that may be acquired on the conversion or exercise of securities issued under the merger does not exceed by more than 20 percent the total number of participating shares of the corporation that are outstanding immediately before the merger.
(b) Unless required by the certificate of formation, a plan of merger effected under Section 10.005 or 10.006 does not require the approval of the shareholders of the corporation.
(c) This subsection applies only to a corporation that is a party to the merger and whose shares are, immediately before the date its board of directors approves the plan of merger, either listed on a national securities exchange or held of record by at least 2,000 shareholders. Unless required by the corporation's certificate of formation, a plan of merger is not required to be approved by the shareholders of the corporation if:
(1) the plan of merger expressly:
(A) permits or requires the merger to be effected under this subsection; and
(B) provides that any merger effected under this subsection shall be effected as soon as practicable following the consummation of the offer described by Subdivision (2);
(2) an organization consummates a tender or exchange offer for all of the outstanding shares of the corporation on the terms provided in the plan of merger that, absent this subsection, would be entitled to vote on the approval of the plan of merger, except that the offer may exclude shares of the corporation owned at the time of the commencement of the offer by:
(A) the corporation;
(B) the organization making the offer;
(C) any person who owns, directly or indirectly, all of the ownership interests in the organization making the offer; or
(D) any direct or indirect wholly owned subsidiary of a person described by Paragraph (A), (B), or (C);
(3) shares that are irrevocably accepted for purchase or exchange pursuant to the consummation of the offer described by Subdivision (2) and that are received by the depository before the expiration of the offer in addition to the shares that are otherwise owned by the consummating organization equal at least the percentage of the shares, and of each class or series of those shares, of the corporation that, absent this subsection, would be required to approve the plan of merger by:
(A) Section 21.457 and, if applicable, Section 21.458; and
(B) the certificate of formation of the corporation;
(4) the organization consummating the offer described by Subdivision (2) merges with or into the corporation pursuant to the plan of merger; and
(5) each outstanding share of each class or series of the corporation that is the subject of and not irrevocably accepted for purchase or exchange in the offer described by Subdivision (2) is to be converted or exchanged in the merger into, or into the right to receive, the same amount and kind of consideration, as described by Section 10.002(a)(5), as to be paid or delivered for shares of such class or series of the corporation irrevocably accepted for purchase or exchange in the offer.
(d) In Subsection (c) and this subsection and, as applicable, in Sections 10.355(d)(3)(B), 10.355(f), and 10.356(b)(3)(E)(iv):
(1) "Consummates," "consummation," or "consummating" means irrevocably accepts for purchase or exchange shares tendered pursuant to a tender or exchange offer.
(2) "Depository" means an agent appointed to facilitate consummation of the offer described by Subsection (c)(2).
(e) For purposes of Subsection (c)(3), "received," with respect to shares, means:
(1) physical receipt of a certificate representing shares, in the case of certificated shares; and
(2) transfer into the depository's account or an agent's message being received by the depository, in the case of uncertificated shares.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 32 (S.B. 860), Sec. 26, eff. September 1, 2015.
Section: Previous 21.452 21.453 21.454 21.455 21.456 21.457 21.458 21.459 21.460 21.461 21.462 21.501 21.502 21.503 21.504 NextLast modified: September 28, 2016