The 2005 Florida Statutes - Amendment of Bylaws

Chapter 607, Florida Statutes 2005

The 2005 Florida Statutes

Florida Statues Florida Statues Florida Statues

607.1020 Amendment of bylaws by board of directors or shareholders.--

(1) A corporation's board of directors may amend or repeal the corporation's bylaws unless:

(a) The articles of incorporation or this act reserves the power to amend the bylaws generally or a particular bylaw provision exclusively to the shareholders; or

(b) The shareholders, in amending or repealing the bylaws generally or a particular bylaw provision, provide expressly that the board of directors may not amend or repeal the bylaws or that bylaw provision.

(2) A corporation's shareholders may amend or repeal the corporation's bylaws even though the bylaws may also be amended or repealed by its board of directors.

History.--s. 106, ch. 89-154.

607.1021 Bylaw increasing quorum or voting requirements for shareholders.--

(1) If authorized by the articles of incorporation, the shareholders may adopt or amend a bylaw that fixes a greater quorum or voting requirement for shareholders (or voting groups of shareholders) than is required by this act. The adoption or amendment of a bylaw that adds, changes, or deletes a greater quorum or voting requirement for shareholders must meet the same quorum requirement and be adopted by the same vote and voting groups required to take action under the quorum and voting requirement then in effect or proposed to be adopted, whichever is greater.

(2) A bylaw that fixes a greater quorum or voting requirement for shareholders under subsection (1) may not be adopted, amended, or repealed by the board of directors.

History.--s. 107, ch. 89-154.

607.1022 Bylaw increasing quorum or voting requirements for directors.--

(1) A bylaw that fixes a greater quorum or voting requirement for the board of directors may be amended or repealed:

(a) If originally adopted by the shareholders, only by the shareholders;

(b) If originally adopted by the board of directors, either by the shareholders or by the board of directors.

(2) A bylaw adopted or amended by the shareholders that fixes a greater quorum or voting requirement for the board of directors may provide that it may be amended or repealed only by a specified vote of either the shareholders or the board of directors.

(3) Action by the board of directors under paragraph (1)(b) to adopt or amend a bylaw that changes the quorum or voting requirement for the board of directors must meet the same quorum requirement and be adopted by the same vote required to take action under the quorum and voting requirement then in effect or proposed to be adopted, whichever is greater.

History.--s. 108, ch. 89-154.

607.1101 Merger.--

(1) One or more corporations may merge into another corporation if the board of directors of each corporation adopts and its shareholders (if required by s. 607.1103) approve a plan of merger.

(2) The plan of merger shall set forth:

(a) The name of each corporation planning to merge and the name of the surviving corporation into which each other corporation plans to merge, which is hereinafter designated as the surviving corporation;

(b) The terms and conditions of the proposed merger; and

(c) The manner and basis of converting the shares of each corporation into shares, obligations, or other securities of the surviving corporation or any other corporation or, in whole or in part, into cash or other property and the manner and basis of converting rights to acquire shares of each corporation into rights to acquire shares, obligations, or other securities of the surviving or any other corporation or, in whole or in part, into cash or other property.

(3) The plan of merger may set forth:

(a) Amendments to, or a restatement of, the articles of incorporation of the surviving corporation;

(b) The effective date of the merger, which may be on or after the date of filing the certificate; and

(c) Other provisions relating to the merger.

History.--s. 109, ch. 89-154.

607.1102 Share exchange.--

(1) A corporation may acquire all of the outstanding shares of one or more classes or series of another corporation if the board of directors of each corporation adopts and its shareholders (if required by s. 607.1103) approve a plan of share exchange.

(2) The plan of share exchange shall set forth:

(a) The name of the corporation the shares of which will be acquired and the name of the acquiring corporation;

(b) The terms and conditions of the exchange;

(c) The manner and basis of exchanging the shares to be acquired for shares, obligations, or other securities of the acquiring or any other corporation or, in whole or in part, for cash or other property, and the manner and basis of exchanging rights to acquire shares of the corporation to be acquired for rights to acquire shares, obligations, or, in whole or in part, other securities of the acquiring or any other corporation or, in whole or in part, for cash or other property.

(3) The plan of share exchange may set forth other provisions relating to the exchange.

(4) This section does not limit the power of a corporation to acquire all or part of the shares of one or more classes or series of another corporation through a voluntary exchange or otherwise.

History.--s. 110, ch. 89-154.

607.1103 Action on plan.--

(1) After adopting a plan of merger or share exchange, the board of directors of each corporation party to the merger, and the board of directors of the corporation the shares of which will be acquired in the share exchange, shall submit the plan of merger (except as provided in subsection (7)) or the plan of share exchange for approval by its shareholders.

(2) For a plan of merger or share exchange to be approved:

(a) The board of directors must recommend the plan of merger or share exchange to the shareholders, unless the board of directors determines that it should make no recommendation because of conflict of interest or other special circumstances and communicates the basis for its determination to the shareholders with the plan; and

(b) The shareholders entitled to vote must approve the plan as provided in subsection (5).

(3) The board of directors may condition its submission of the proposed merger or share exchange on any basis.

(4) The corporation the shareholders of which are entitled to vote on the matter shall notify each shareholder, whether or not entitled to vote, of the proposed shareholders' meeting in accordance with s. 607.0705. The notice shall also state that the purpose, or one of the purposes, of the meeting is to consider the plan of merger or share exchange, regardless of whether or not the meeting is an annual or a special meeting, and contain or be accompanied by a copy or summary of the plan. Furthermore, the notice shall contain a clear and concise statement that, if the plan of merger or share exchange is effected, shareholders dissenting therefrom may be entitled, if they comply with the provisions of this act regarding appraisal rights, to be paid the fair value of their shares, and shall be accompanied by a copy of ss. 607.1301-607.1333.

(5) Unless this act, the articles of incorporation, or the board of directors (acting pursuant to subsection (3)) requires a greater vote or a vote by classes, the plan of merger or share exchange to be authorized shall be approved by each class entitled to vote on the plan by a majority of all the votes entitled to be cast on the plan by that class.

(6) Voting by a class or series as a separate voting group is required:

(a) On a plan of merger if the plan contains a provision which, if contained in a proposed amendment to articles of incorporation, would entitle the class or series to vote as a separate voting group on the proposed amendment under s. 607.1004; or

(b) On a plan of share exchange if the shares of such class or series of shares are to be converted or exchanged under such plan or if the plan contains any provisions which, if contained in a proposed amendment to articles of incorporation, would entitle the class or series to vote as a separate voting group on the proposed amendment under s. 607.1004.

(7) Notwithstanding the requirements of this section, unless required by its articles of incorporation, action by the shareholders of the surviving corporation on a plan of merger is not required if:

(a) The articles of incorporation of the surviving corporation will not differ (except for amendments enumerated in s. 607.1002) from its articles before the merger; and

(b) Each shareholder of the surviving corporation whose shares were outstanding immediately prior to the effective date of the merger will hold the same number of shares, with identical designations, preferences, limitations, and relative rights, immediately after the merger.

(8) Any plan of merger or share exchange may authorize the board of directors of each corporation party to the merger or share exchange to amend the plan at any time prior to the filing of the articles of merger or share exchange. An amendment made subsequent to the approval of the plan by the shareholders of any corporation party to the merger or share exchange may not:

(a) Change the amount or kind of shares, securities, cash, property, or rights to be received in exchange for or on conversion of any or all of the shares of any class or series of such corporation;

(b) Change any other terms and conditions of the plan if such change would materially and adversely affect such corporation or the holders of the shares of any class or series of such corporation; or

(c) Except as specified in s. 607.1002 or without the vote of shareholders entitled to vote on the matter, change any term of the articles of incorporation of any corporation the shareholders of which must approve the plan of merger or share exchange.

If articles of merger or share exchange already have been filed with the Department of State, amended articles of merger or share exchange shall be filed with the Department of State prior to the effective date of the merger or share exchange.

(9) Unless a plan of merger or share exchange prohibits abandonment of the merger or share exchange without shareholder approval after a merger or share exchange has been authorized, the planned merger or share exchange may be abandoned (subject to any contractual rights) at any time prior to the filing of articles of merger or share exchange by any corporation party to the merger or share exchange, without further shareholder action, in accordance with the procedure set forth in the plan of merger or share exchange or, if none is set forth, in the manner determined by the board of directors of such corporation.

History.--s. 111, ch. 89-154; s. 32, ch. 93-281; s. 16, ch. 2003-283.

607.1104 Merger of subsidiary corporation.--

(1)(a) A parent corporation owning at least 80 percent of the outstanding shares of each class of a subsidiary corporation may merge the subsidiary into itself, may merge itself into the subsidiary, or may merge the subsidiary into and with another subsidiary in which the parent corporation owns at least 80 percent of the outstanding shares of each class of the subsidiary without the approval of the shareholders of the parent or subsidiary. In a merger of a parent corporation into its subsidiary corporation, the approval of the shareholders of the parent corporation shall be required if the articles of incorporation of the surviving corporation will differ, except for amendments enumerated in s. 607.1002, from the articles of incorporation of the parent corporation before the merger, and the required vote shall be the greater of the vote required to approve the merger and the vote required to adopt each change to the articles of incorporation as if each change had been presented as an amendment to the articles of incorporation of the parent corporation.

(b) The board of directors of the parent shall adopt a plan of merger that sets forth:

1. The names of the parent and subsidiary corporations;

2. The manner and basis of converting the shares of the subsidiary or parent into shares, obligations, or other securities of the parent or any other corporation or, in whole or in part, into cash or other property, and the manner and basis of converting rights to acquire shares of each corporation into rights to acquire shares, obligations, and other securities of the surviving or any other corporation or, in whole or in part, into cash or other property;

3. If the merger is between the parent and a subsidiary corporation and the parent is not the surviving corporation, a provision for the pro rata issuance of shares of the subsidiary to the holders of the shares of the parent corporation upon surrender of any certificates therefor; and

4. A clear and concise statement that shareholders of the subsidiary who, except for the applicability of this section, would be entitled to vote and who dissent from the merger pursuant to s. 607.1321, may be entitled, if they comply with the provisions of this act regarding appraisal rights, to be paid the fair value of their shares.

(2) The parent shall mail a copy or summary of the plan of merger to each shareholder of the subsidiary who does not waive the mailing requirement in writing.

(3) The parent may not deliver articles of merger to the Department of State for filing until at least 30 days after the date it mailed a copy of the plan of merger to each shareholder of the subsidiary who did not waive the mailing requirement, or, if earlier, upon the waiver thereof by the holders of all of the outstanding shares of the subsidiary.

(4) Articles of merger under this section may not contain amendments to the articles of incorporation of the parent corporation (except for amendments enumerated in s. 607.1002).

(5) Two or more subsidiaries may be merged into the parent pursuant to this section.

History.--s. 112, ch. 89-154; s. 33, ch. 93-281; s. 17, ch. 2003-283.

607.11045 Holding company formation by merger by certain corporations.--

(1) This section applies only to a corporation that has shares of any class or series which are either registered on a national securities exchange or designated as a national market system security on an interdealer quotation system by the National Association of Securities Dealers, Inc., or held of record by not fewer than 2,000 shareholders.

(2) As used in this section, the term:

(a) "Constituent corporation" means a corporation that is a party to a merger governed by this section.

(b) "Holding company" means a corporation that, from the date it first issued shares until consummation of a merger governed by this section, was at all times a wholly owned subsidiary of a constituent corporation, and whose shares are issued in such merger.

(c) "Wholly owned subsidiary" means, as to a corporation, any other corporation of which it owns, directly or indirectly through one or more subsidiaries, all of the issued and outstanding shares.

(3) Notwithstanding the requirements of s. 607.1103, unless expressly required by its articles of incorporation, no vote of shareholders of a corporation is necessary to authorize a merger of the corporation with or into a wholly owned subsidiary of such corporation if:

(a) Such corporation and wholly owned subsidiary are the only constituent corporations to the merger;

(b) Each share or fraction of a share of the constituent corporation whose shares are being converted pursuant to the merger which are outstanding immediately prior to the effective date of the merger is converted in the merger into a share or equal fraction of share of a holding company having the same designations, rights, powers and preferences, and qualifications, limitations and restrictions thereof as the share of the constituent corporation being converted in the merger;

(c) The holding company and each of the constituent corporations to the merger are domestic corporations;

(d) The articles of incorporation and bylaws of the holding company immediately following the effective date of the merger contain provisions identical to the articles of incorporation and bylaws of the constituent corporation whose shares are being converted pursuant to the merger immediately prior to the effective date of the merger, except provisions regarding the incorporators, the corporate name, the registered office and agent, the initial board of directors, the initial subscribers for shares and matters solely of historical significance, and such provisions contained in any amendment to the articles of incorporation as were necessary to effect a change, exchange, reclassification, or cancellation of shares, if such change, exchange, reclassification, or cancellation has become effective;

(e) As a result of the merger, the constituent corporation whose shares are being converted pursuant to the merger or its successor corporation becomes or remains a direct or indirect wholly owned subsidiary of the holding company;

(f) The directors of the constituent corporation become or remain the directors of the holding company upon the effective date of the merger;

(g) The articles of incorporation of the surviving corporation immediately following the effective date of the merger are identical to the articles of incorporation of the constituent corporation whose shares are being converted pursuant to the merger immediately prior to the effective date of the merger, except provisions regarding the incorporators, the corporate name, the registered office and agent, the initial board of directors, the initial subscribers for shares and matters solely of historical significance, and such provisions contained in any amendment to the articles of incorporation as were necessary to effect a change, exchange, reclassification, or cancellation of shares, if such change, exchange, reclassification, or cancellation has become effective. The articles of incorporation of the surviving corporation must be amended in the merger to contain a provision requiring, by specific reference to this section, that any act or transaction by or involving the surviving corporation which requires for its adoption under this act or its articles of incorporation the approval of the shareholders of the surviving corporation also be approved by the shareholders of the holding company, or any successor by merger, by the same vote as is required by this act or the articles of incorporation of the surviving corporation. The articles of incorporation of the surviving corporation may be amended in the merger to reduce the number of classes and shares which the surviving corporation is authorized to issue;

(h) The board of directors of the constituent corporation determines that the shareholders of the constituent corporation will not recognize gain or loss for United States federal income tax purposes; and

(i) The board of directors of such corporation adopts a plan of merger that sets forth:

1. The names of the constituent corporations;

2. The manner and basis of converting the shares of the corporation into shares of the holding company and the manner and basis of converting rights to acquire shares of such corporation into rights to acquire shares of the holding company; and

3. A provision for the pro rata issuance of shares of the holding company to the holders of shares of the corporation upon surrender of any certificates therefor.

(4) From and after the effective time of a merger adopted by a constituent corporation by action of its board of directors and without any vote of shareholders pursuant to this section:

(a) To the extent the restrictions of ss. 607.0901 and 607.0902 applied to the constituent corporation and its shareholders at the effective time of the merger, such restrictions also apply to the holding company and its shareholders immediately after the effective time of the merger as though it were the constituent corporation, and all shares of the holding company acquired in the merger shall, for purposes of ss. 607.0901 and 607.0902, be deemed to have been acquired at the time that the shares of the constituent corporation converted in the merger were acquired, and provided further that any shareholder who immediately prior to the effective time of the merger was not an interested shareholder within the meaning of s. 607.0901 shall not, solely by reason of the merger, become an interested shareholder of the holding company; and

(b) If the corporate name of the holding company immediately following the effective time of the merger is the same as the corporate name of the constituent corporation immediately prior to the effective time of the merger, the shares of the holding company into which the shares of the constituent corporation are converted in the merger shall be represented by the share certificates that previously represented shares of the constituent corporation.

(5) If a plan of merger is adopted by a constituent corporation by selection of its board of directors without any vote of shareholders pursuant to this section, the secretary or assistant secretary of the constituent corporation shall certify in the articles of merger that the plan of merger has been adopted pursuant to this section and that the conditions specified in subsection (3) have been satisfied. The articles of merger so certified shall then be filed and become effective in accordance with s. 607.1106.

History.--s. 2, ch. 98-101; s. 3, ch. 99-135.

607.1105 Articles of merger or share exchange.--

(1) After a plan of merger or share exchange is approved by the shareholders, or adopted by the board of directors if shareholder approval is not required, the surviving or acquiring corporation shall deliver to the Department of State for filing articles of merger or share exchange which shall be executed by each corporation as required by s. 607.0120 and which shall set forth:

(a) The plan of merger or share exchange;

(b) The effective date of the merger or share exchange, which may be on or after the date of filing the articles of merger or share exchange; if the articles of merger or share exchange do not provide for an effective date of the merger or share exchange, then the effective date shall be the date on which the articles of merger or share exchange are filed;

(c) If shareholder approval was not required, a statement to that effect; and

(d) As to each corporation, to the extent applicable, the date of adoption of the plan of merger or share exchange by the shareholders or by the board of directors when no vote of the shareholders is required.

(2) A copy of the articles of merger or share exchange, certified by the Department of State, may be filed in the office of the official who is the recording officer of each county in this state in which real property of a constituent corporation other than the surviving corporation is situated.

History.--s. 113, ch. 89-154; s. 152, ch. 90-179; s. 34, ch. 93-281.

607.1106 Effect of merger or share exchange.--

(1) When a merger becomes effective:

(a) Every other corporation party to the merger merges into the surviving corporation and the separate existence of every corporation except the surviving corporation ceases;

(b) The title to all real estate and other property, or any interest therein, owned by each corporation party to the merger is vested in the surviving corporation without reversion or impairment;

(c) The surviving corporation shall thenceforth be responsible and liable for all the liabilities and obligations of each corporation party to the merger;

(d) Any claim existing or action or proceeding pending by or against any corporation party to the merger may be continued as if the merger did not occur or the surviving corporation may be substituted in the proceeding for the corporation which ceased existence;

(e) Neither the rights of creditors nor any liens upon the property of any corporation party to the merger shall be impaired by such merger;

(f) The articles of incorporation of the surviving corporation are amended to the extent provided in the plan of merger; and

(g) The shares (and the rights to acquire shares, obligations, or other securities) of each corporation party to the merger that are to be converted into shares, rights, obligations, or other securities of the surviving or any other corporation or into cash or other property are converted, and the former holders of the shares are entitled only to the rights provided in the articles of merger or to their rights under s. 607.1302.

(2) When a share exchange becomes effective, the shares of each acquired corporation are exchanged as provided in the plan of exchange, and the former holders of the shares are entitled only to the exchange rights provided in the articles of share exchange or to their rights under s. 607.1302.

History.--s. 114, ch. 89-154; s. 4, ch. 2004-378.

607.1107 Merger or share exchange with foreign corporations.--

(1) One or more foreign corporations may merge or enter into a share exchange with one or more domestic corporations if:

(a) In a merger, the merger is permitted by the law of the state or country under the law of which each foreign corporation is incorporated and each foreign corporation complies with that law in effecting the merger;

(b) In a share exchange, the corporation the shares of which will be acquired is a domestic corporation, whether or not a share exchange is permitted by law of the state or country under the law of which the acquiring corporation is incorporated;

(c) The foreign corporation complies with s. 607.1105 if it is the surviving corporation of the merger or acquiring corporation of the share exchange; and

(d) Each domestic corporation complies with the applicable provisions of ss. 607.1101-607.1104 and, if it is the surviving corporation of the merger or acquiring corporation of the share exchange, with s. 607.1105.

(2) Upon the merger becoming effective, the surviving foreign corporation of a merger, and the acquiring foreign corporation in a share exchange, is deemed:

(a) To appoint the Secretary of State as its agent for service of process in a proceeding to enforce any obligation or the rights of dissenting shareholders of each domestic corporation party to the merger or share exchange; and

(b) To agree that it will promptly pay to the dissenting shareholders of each domestic corporation party to the merger or share exchange the amount, if any, to which they are entitled under s. 607.1302.

(3) This section does not limit the power of a foreign corporation to acquire all or part of the shares of one or more classes or series of a domestic corporation through a voluntary exchange or otherwise.

(4) The effect of such merger shall be the same as in the case of the merger of domestic corporations if the surviving corporation is to be governed by the laws of this state. If the surviving corporation is to be governed by the laws of any state other than this state, the effect of such merger shall be the same as in the case of the merger of domestic corporations except insofar as the laws of such other state provide otherwise.

(5) The redomestication of a foreign insurer to this state under s. 628.520 shall be deemed a merger of a foreign corporation and a domestic corporation, and the surviving corporation shall be deemed to be a domestic corporation incorporated under the laws of this state. The redomestication of a Florida corporation to a foreign jurisdiction under s. 628.525 shall be deemed a merger of a domestic corporation and a foreign corporation, and the surviving corporation shall be deemed to be a foreign corporation.

History.--s. 115, ch. 89-154; s. 5, ch. 2004-378.

607.1108 Merger of domestic corporation and other business entity.--

(1) As used in this section and ss. 607.1109 and 607.11101, the term "other business entity" means a limited liability company, a foreign corporation, a not-for-profit corporation, a business trust or association, a real estate investment trust, a common law trust, an unincorporated business, a general partnership, a limited partnership, or any other entity that is formed pursuant to the requirements of applicable law. Notwithstanding the provisions of chapter 617, a domestic not-for-profit corporation acting under a plan of merger approved pursuant to s. 617.1103 shall be governed by the provisions of ss. 607.1108, 607.1109, and 607.11101.

(2) Pursuant to a plan of merger complying and approved in accordance with this section, one or more domestic corporations may merge with or into one or more other business entities formed, organized, or incorporated under the laws of this state or any other state, the United States, foreign country, or other foreign jurisdiction, if:

(a) Each domestic corporation which is a party to the merger complies with the applicable provisions of this chapter.

(b) Each domestic partnership that is a party to the merger complies with the applicable provisions of chapter 620.

(c) Each domestic limited liability company that is a party to the merger complies with the applicable provisions of chapter 608.

(d) The merger is permitted by the laws of the state, country, or jurisdiction under which each other business entity that is a party to the merger is formed, organized, or incorporated and each such other business entity complies with such laws in effecting the merger.

(3) The plan of merger shall set forth:

(a) The name of each domestic corporation and the name and jurisdiction of formation, organization, or incorporation of each other business entity planning to merge, and the name of the surviving or resulting domestic corporation or other business entity into which each other domestic corporation or other business entity plans to merge, which is hereinafter and in ss. 607.1109 and 607.11101 designated as the surviving entity.

(b) The terms and conditions of the merger.

(c) The manner and basis of converting the shares of each domestic corporation that is a party to the merger and the partnership interests, interests, shares, obligations or other securities of each other business entity that is a party to the merger into partnership interests, interests, shares, obligations or other securities of the surviving entity or any other domestic corporation or other business entity or, in whole or in part, into cash or other property, and the manner and basis of converting rights to acquire the shares of each domestic corporation that is a party to the merger and rights to acquire partnership interests, interests, shares, obligations or other securities of each other business entity that is a party to the merger into rights to acquire partnership interests, interests, shares, obligations or other securities of the surviving entity or any other domestic corporation or other business entity or, in whole or in part, into cash or other property.

(d) If a partnership is to be the surviving entity, the names and business addresses of the general partners of the surviving entity.

(e) If a limited liability company is to be the surviving entity and management thereof is vested in one or more managers, the names and business addresses of such managers.

(f) All statements required to be set forth in the plan of merger by the laws under which each other business entity that is a party to the merger is formed, organized, or incorporated.

(4) The plan of merger may set forth:

(a) If a domestic corporation is to be the surviving entity, any amendments to, or a restatement of, the articles of incorporation of the surviving entity, and such amendments or restatement shall be effective at the effective date of the merger.

(b) The effective date of the merger, which may be on or after the date of filing the certificate of merger.

(c) Any other provisions relating to the merger.

(5) The plan of merger required by subsection (3) shall be adopted and approved by each domestic corporation that is a party to the merger in the same manner as is provided in s. 607.1103. Notwithstanding the foregoing, if the surviving entity is a partnership, no shareholder of a domestic corporation that is a party to the merger shall, as a result of the merger, become a general partner of the surviving entity, unless such shareholder specifically consents in writing to becoming a general partner of the surviving entity, and unless such written consent is obtained from each such shareholder who, as a result of the merger, would become a general partner of the surviving entity, such merger shall not become effective under s. 607.11101. Any shareholder providing such consent in writing shall be deemed to have voted in favor of the plan of merger for purposes of s. 607.1103.

(6) Sections 607.1103 and 607.1301-607.1333 shall, insofar as they are applicable, apply to mergers of one or more domestic corporations with or into one or more other business entities.

(7) Notwithstanding any provision of this section or ss. 607.1109 and 607.11101, any merger consisting solely of the merger of one or more domestic corporations with or into one or more foreign corporations shall be consummated solely in accordance with the requirements of s. 607.1107.

History.--s. 4, ch. 98-101; s. 18, ch. 2003-283.

607.1109 Articles of merger.--

(1) After a plan of merger is approved by each domestic corporation and other business entity that is a party to the merger, the surviving entity shall deliver to the Department of State for filing articles of merger, which shall be executed by each domestic corporation as required by s. 607.0120 and by each other business entity as required by applicable law, and which shall set forth:

(a) The plan of merger.

(b) A statement that the plan of merger was approved by each domestic corporation that is a party to the merger in accordance with the applicable provisions of this chapter, and, if applicable, a statement that the written consent of each shareholder of such domestic corporation who, as a result of the merger, becomes a general partner of the surviving entity has been obtained pursuant to s. 607.1108(5).

(c) A statement that the plan of merger was approved by each domestic partnership that is a party to the merger in accordance with the applicable provisions of chapter 620.

(d) A statement that the plan of merger was approved by each domestic limited liability company that is a party to the merger in accordance with the applicable provisions of chapter 608.

(e) A statement that the plan of merger was approved by each other business entity that is a party to the merger, other than domestic corporations, limited liability companies, and partnerships formed, organized, or incorporated under the laws of this state, in accordance with the applicable laws of the state, country, or jurisdiction under which such other business entity is formed, organized, or incorporated.

(f) The effective date of the merger, which may be on or after the date of filing the articles of merger, provided, if the articles of merger do not provide for an effective date of the merger, the effective date shall be the date on which the articles of merger are filed.

(g) If the surviving entity is another business entity formed, organized, or incorporated under the laws of any state, country, or jurisdiction other than this state:

1. The address, including street and number, if any, of its principal office under the laws of the state, country, or jurisdiction in which it was formed, organized, or incorporated.

2. A statement that the surviving entity is deemed to have appointed the Secretary of State as its agent for service of process in a proceeding to enforce any obligation or the rights of dissenting shareholders of each domestic corporation that is a party to the merger.

3. A statement that the surviving entity has agreed to promptly pay to the dissenting shareholders of each domestic corporation that is a party to the merger the amount, if any, to which they are entitled under s. 607.1302.

(2) A copy of the articles of merger, certified by the Department of State, may be filed in the office of the official who is the recording officer of each county in this state in which real property of a party to the merger other than the surviving entity is situated.

History.--s. 4, ch. 98-101; s. 6, ch. 2004-378.

607.11101 Effect of merger of domestic corporation and other business entity.--When a merger becomes effective:

(1) Every domestic corporation and other business entity that is a party to the merger merges into the surviving entity and the separate existence of every domestic corporation and other business entity that is a party to the merger except the surviving entity ceases.

(2) The title to all real estate and other property, or any interest therein, owned by each domestic corporation and other business entity that is a party to the merger is vested in the surviving entity without reversion or impairment.

(3) The surviving entity shall thereafter be responsible and liable for all the liabilities and obligations of each domestic corporation and other business entity that is a party to the merger, including liabilities arising out of appraisal rights with respect to such merger under applicable law.

(4) Any claim existing or action or proceeding pending by or against any domestic corporation or other business entity that is a party to the merger may be continued as if the merger did not occur or the surviving entity may be substituted in the proceeding for the domestic corporation or other business entity which ceased existence.

(5) Neither the rights of creditors nor any liens upon the property of any domestic corporation or other business entity shall be impaired by such merger.

(6) If a domestic corporation is the surviving entity, the articles of incorporation of such corporation in effect immediately prior to the time the merger becomes effective shall be the articles of incorporation of the surviving entity, except as amended or restated to the extent provided in the plan of merger.

(7) The shares, partnership interests, interests, obligations, or other securities, and the rights to acquire shares, partnership interests, interests, obligations, or other securities, of each domestic corporation and other business entity that is a party to the merger shall be converted into shares, partnership interests, interests, obligations, or other securities, or rights to such securities, of the surviving entity or any other domestic corporation or other business entity or, in whole or in part, into cash or other property as provided in the plan of merger, and the former holders of shares, partnership interests, interests, obligations, or other securities, or rights to such securities, shall be entitled only to the rights provided in the plan of merger and to their appraisal rights, if any, under ss. 607.1301-607.1333, ss. 608.4351-608.43595, ss. 620.2114-620.2124, or other applicable law.

History.--s. 4, ch. 98-101; s. 1, ch. 2000-298; s. 19, ch. 2003-283; s. 24, ch. 2005-267.

607.1112 Conversion of domestic corporation into another business entity.--

(1) As used in this section and ss. 607.1113 and 607.1114, the term "another business entity" or "other business entity" means a limited liability company; a common law or business trust or association; a real estate investment trust; a general partnership, including a limited liability partnership; a limited partnership, including a limited liability limited partnership; or any other domestic or foreign entity that is organized under a governing law or other applicable law, provided such term shall not include a corporation and shall not include any entity that has not been organized for profit.

(2) Pursuant to a plan of conversion complying with and approved in accordance with this section, a domestic corporation may convert to another business entity organized under the laws of this state or any other state, the United States, a foreign country, or other foreign jurisdiction, if:

(a) The domestic corporation converting to the other business entity complies with the applicable provisions of this chapter.

(b) The conversion is permitted by the laws of the jurisdiction that enacted the applicable laws under which the other business entity is governed and the other business entity complies with such laws in effecting the conversion.

(3) The plan of conversion shall set forth:

(a) The name of the domestic corporation and the name and jurisdiction of organization of the other business entity to which the domestic corporation is to be converted.

(b) The terms and conditions of the conversion, including the manner and basis of converting the shares, obligations, or other securities, or rights to acquire shares, obligations, or other securities, of the domestic corporation into the partnership interests, limited liability company interests, obligations, or other securities of the other business entity, including any rights to acquire any such interests, obligations, or other securities, or, in whole or in part, into cash or other consideration.

(c) All statements required to be set forth in the plan of conversion by the laws under which the other business entity is governed.

(4) The plan of conversion shall include, or have attached to it, the articles, certificate, registration, or other organizational document by which the other business entity has been or will be organized under its governing laws.

(5) The plan of conversion may also set forth any other provisions relating to the conversion.

(6) The plan of conversion shall be adopted and approved by the board of directors and shareholders of a domestic corporation in the same manner as a merger of a domestic corporation under s. 607.1103. Notwithstanding such requirement, if the other business entity is a partnership or limited partnership, no shareholder of the converting domestic corporation shall, as a result of the conversion, become a general partner of the partnership or limited partnership, unless such shareholder specifically consents in writing to becoming a general partner of such partnership or limited partnership and, unless such written consent is obtained from each such shareholder, such conversion shall not become effective under s. 607.1114. Any shareholder providing such consent in writing shall be deemed to have voted in favor of the plan of conversion pursuant to which the shareholder became a general partner.

(7) Section 607.1103 and ss. 607.1301-607.1333 shall, insofar as they are applicable, apply to a conversion of a domestic corporation into another business entity in accordance with this chapter.

History.--s. 1, ch. 2005-267.

607.1113 Certificate of conversion.--

(1) After a plan of conversion is approved by the board of directors and shareholders of a converting domestic corporation, such corporation shall deliver to the Department of State for filing a certificate of conversion which shall be executed by the domestic corporation as required by s. 607.0120 and shall set forth:

(a) A statement that the domestic corporation has been converted into another business entity in compliance with this chapter and that the conversion complies with the applicable laws governing the other business entity.

(b) A statement that the plan of conversion was approved by the converting domestic corporation in accordance with this chapter and, if applicable, a statement that the written consent of each shareholder of such domestic corporation who, as a result of the conversion, becomes a general partner of the surviving entity has been obtained pursuant to s. 607.1112(6).

(c) The effective date of the conversion, which, subject to the limitations in s. 607.0123(2), may be on or after the date of filing the certificate of conversion but shall not be different than the effective date of the conversion under the laws governing the other business entity into which the domestic corporation has been converted.

(d) The address, including street and number, if any, of the principal office of the other business entity under the laws of the state, country, or jurisdiction in which such other business entity was organized.

(e) If the other business entity is a foreign entity and is not authorized to transact business in this state, a statement that the other business entity appoints the Secretary of State as its agent for service of process in a proceeding to enforce obligations of the converting domestic corporation, including any appraisal rights of shareholders of the converting domestic corporation under ss. 607.1301-607.1333 and the street and mailing address of an office which the Department of State may use for purposes of s. 607.1114(4).

(f) A statement that the other business entity has agreed to pay any shareholders having appraisal rights the amount to which they are entitled under ss. 607.1301-607.1333.

(2) A copy of the certificate of conversion, certified by the Department of State, may be filed in the official records of any county in this state in which the converting domestic corporation holds an interest in real property.

History.--s. 1, ch. 2005-267.

607.1114 Effect of conversion of domestic corporation into another business entity.--When a conversion becomes effective:

(1) A domestic corporation that has been converted into another business entity pursuant to this chapter is for all purposes the same entity that existed before the conversion.

(2) The title to all real property and other property, or any interest therein, owned by the domestic corporation at the time of its conversion into the other business entity remains vested in the converted entity without reversion or impairment by operation of this chapter.

(3) The other business entity into which the domestic corporation was converted shall continue to be responsible and liable for all the liabilities and obligations of the converting domestic corporation, including liability to any shareholders having appraisal rights under ss. 607.1301-607.1333 with respect to such conversion.

(4) Any claim existing or action or proceeding pending by or against any domestic corporation that is converted into another business entity may be continued as if the conversion did not occur. If the converted entity is a foreign entity, it shall be deemed to have consented to the jurisdiction of the courts of this state to enforce any obligation of the converting domestic corporation if, before the conversion, the converting domestic corporation was subject to suit in this state on the obligation. A converted entity that is a foreign entity and not authorized to transact business in this state shall appoint the Department of State as its agent for service of process for purposes of enforcing an obligation under this subsection, including any appraisal rights of shareholders under ss. 607.1301-607.1333 to the extent applicable to the conversion. Service on the Department of State under this subsection shall be made in the same manner and with the same consequences as under s. 48.181.

(5) Neither the rights of creditors nor any liens upon the property of a domestic corporation that is converted into another business entity under this chapter shall be impaired by such conversion.

(6) The shares, obligations, and other securities, or rights to acquire shares, obligations, or other securities, of the domestic corporation shall be converted into the partnership interests, limited liability company interests, obligations, or other securities of the other business entity, including any rights to acquire any such interests, obligations, or other securities, or, in whole or in part, into cash, or other consideration, as provided in the plan of conversion. The former shareholders of the converting domestic corporation shall be entitled only to the rights provided in the plan of conversion and to their appraisal rights, if any, under ss. 607.1301-607.1333 or other applicable law.

History.--s. 1, ch. 2005-267.

607.1115 Conversion of another business entity to a domestic corporation.--

(1) As used in this section, the term "other business entity" means a limited liability company; a common law or business trust or association; a real estate investment trust; a general partnership, including a limited liability partnership; a limited partnership, including a limited liability limited partnership; or any other domestic or foreign entity that is organized under a governing law or other applicable law, provided such term shall not include a corporation and shall not include any entity that has not been organized for profit.

(2) Any other business entity may convert to a domestic corporation if the conversion is permitted by the laws of the jurisdiction that enacted the applicable laws governing the other business entity and the other business entity complies with such laws and the requirements of this section in effecting the conversion. The other business entity shall file with the Department of State in accordance with s. 607.0120:

(a) A certificate of conversion that has been executed in accordance with s. 607.0120.

(b) Articles of incorporation that comply with s. 607.0202 and have been executed in accordance with s. 607.0120.

(3) The certificate of conversion shall state:

(a) The date on which, and the jurisdiction in which, the other business entity was first organized and, if the entity has changed, its jurisdiction immediately prior to its conversion.

(b) The name of the other business entity immediately prior to the filing of the certificate of conversion to a corporation.

(c) The name of the corporation as set forth in its articles of incorporation filed in accordance with subsection (2).

(d) The delayed effective date or time, which, subject to the limitations in s. 607.0123(2), shall be a date or time certain, of the conversion if the conversion is not to be effective upon the filing of the certificate of conversion and the articles of incorporation, provided such delayed effective date may not be different than the effective date and time of the articles of incorporation.

(4) Upon the filing with the Department of State of the certificate of conversion and the articles of incorporation, or upon the delayed effective date or time of the certificate of conversion and the articles of incorporation, the other business entity shall be converted into a domestic corporation and the corporation shall thereafter be subject to all of the provisions of this chapter, except notwithstanding s. 607.0123, the existence of the corporation shall be deemed to have commenced when the other business entity commenced its existence in the jurisdiction in which the other business entity was first organized.

(5) The conversion of any other business entity into a domestic corporation shall not affect any obligations or liabilities of the other business entity incurred prior to its conversion to a domestic corporation or the personal liability of any person incurred prior to such conversion.

(6) When any conversion becomes effective under this section, for all purposes of the laws of this state, all of the rights, privileges, and powers of the other business entity that has been converted, and all property, real, personal, and mixed, and all debts due to such other business entity, as well as all other things and causes of action belonging to such other business entity, shall be vested in the domestic corporation into which it was converted and shall thereafter be the property of the domestic corporation as they were of the other business entity. Without limiting this provision, title to any real property, or any interest therein, vested by deed or otherwise in such other business entity at the time of conversion shall remain vested in the converted entity without reversion or impairment by operation of this chapter. All rights of creditors and all liens upon any property of such other business entity shall be preserved unimpaired, and all debts, liabilities, and duties of such other business entity shall thenceforth attach to the domestic corporation into which it was converted and may be enforced against the domestic corporation to the same extent as if said debts, liabilities, and duties had been incurred or contracted by the domestic corporation.

(7) Unless otherwise agreed, or as required under applicable laws of states other than this state, the converting entity shall not be required to wind up its affairs or pay its liabilities and distribute its assets and the conversion shall not constitute a dissolution of such entity and shall constitute a continuation of the existence of the converting entity in the form of a domestic corporation.

(8) Prior to filing a certificate of conversion with the Department of State, the conversion shall be approved in the manner provided for by the document, instrument, agreement, or other writing, as the case may be, governing the internal affairs of the other business entity or by other applicable law, as appropriate, and the articles of incorporation and bylaws of the corporation shall be approved by the same authorization required to approve the conversion. As part of such an approval, a plan of conversion or other record may describe the manner and basis of converting the partnership interests, limited liability company interests, obligations, or securities of, or other interests or rights in, the other business entity, including any rights to acquire any such interests, obligations, securities, or other rights, into shares of the domestic corporation, or rights to acquire shares, obligations, securities, or other rights, or, in whole or in part, into cash or other consideration. Such a plan or other record may also contain other provisions relating to the conversion, including without limitation the right of the other business entity to abandon a proposed conversion, or an effective date for the conversion that is not inconsistent with paragraph (2)(d).

History.--s. 1, ch. 2005-267.

Florida Statues Florida Statues Florida Statues

Ask System Day
only required if you wish us to call you back