Section 46Part 8 — Foreign Limited Liability Companies
Merger and consolidation
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Tw o or more limited liability companies registered under this Act , may, subject to any express provisions to the contrary in the LLC agreement of any of such limited liability companies, merge or consolidate in accordance with subsections (3) to (15).
No thing in this Part shall derogate from the Authority’s powers in relation to any constituent limited liability company that is a licensee under the regulatory laws and that proposes to participate in a merger or consolidation, or from a constituent limited liability company’s obligations under the regulatory laws.
The managers of each constituent limited liability company that proposes to participate in a merger or consolidation shall on behalf of the constituent limited liability company of which they are managers approve a written plan of merger or consolidation.
The plan referred to in subsection (3) shall give particulars of the following matters —
the name of each constituent limited liability company and the name of the surviving or consolidated entity;
the registered office of each constituent limited liability company;
in respect of each constituent limited liability company, the designation of each class of its LLC interests;
the date on which it is intended that the me rger or consolidation is to take effect, if it is intended to take effect in accordance with section 47 , and not in accordance with subsection (13);
the terms and conditions of the proposed merger or consolidation, including where applicable, the manner and basis of converting LLC interests in each constituent limited liability company into interests in the c onsolidated or surviving entity or into other property as provided in subsection
; ( f ) in respect of a merger, any proposed amendments to the registration statement of the surviving entity, or if none are proposed, a statement that the registration stat ement of the surviving entity immediately prior to the merger shall be its registration statement after the merger; ( g ) in respect of a consolidation, the proposed new registration statement of the consolidated entity; ( h ) any amount or benefit paid or pay able to any manager of a constituent limited liability company, a consolidated entity or a surviving entity consequent upon the merger or consolidation; ( i ) the name and address of any secured creditor of a constituent limited liability company and of the nature of the secured interest held; and ( j ) the names and addresses of the managers of the surviving or consolidated entity. ( 5 ) Some or all of the LLC interests, whether of different classes or of the same class in each constituent limited liability comp any, may be converted into or exchanged for different types of property (consisting of interests, debt obligations or other securities in the surviving entity or consolidated entity or any other corporate entity, or money or other property, or a combinatio n thereof) as provided in the plan of merger or consolidation.
A plan of merger or consolidation shall be authorised by each constituent limited liability company by way of —
the approval of a two thirds majority in number of the members of each su ch constituent limited liability company or in the case of a particular constituent limited liability company, such higher or lower threshold for approval as may be set out in its LLC agreement; and
such other authorisation, if any, as may be specified in such constituent limited liability company’s LLC agreement.
Notwithstanding subsection (6)(a), if a parent entity registered under this Act is seeking to merge with one or more of its subsidiary entities registered under this Act , an approval under that subsection of the members of the constituent limited liability companies is not required if a copy of the plan of merger is given to every member of each such subsidiary entity to be merged unless the parent entity agrees otherwise.
The consent o f each holder of a fixed or floating security interest of a constituent limited liability company in a proposed merger or consolidation shall be obtained but, if the secured creditor does not grant its consent, the Court may, upon application of the consti tuent limited liability company that has granted the security interest, waive the requirement for that consent upon such terms as to security to be issued by the surviving or consolidated entity or otherwise as the Court considers reasonable.
After obt aining any authorisations and consents under subsections (6) and (8), the plan of merger or consolidation shall be signed by a manager on behalf of each constituent limited liability company and filed with the Registrar together with, in relation to each c onstituent limited liability company —
a certificate of good standing;
a manager’s declaration that the constituent limited liability company is, and the surviving or consolidated entity will be, immediately after merger or consolidation, able to p ay its debts as they fall due;
a manager’s declaration that the merger or consolidation is bona fide and not intended to defraud unsecured creditors of the constituent limited liability companies;
a manager’s declaration that —
no petition or o ther similar proceeding has been filed and remains outstanding, and that no order has been made or resolution adopted to wind up the constituent limited liability company in any jurisdiction;
no receiver, trustee, liquidator or administrator or other similar person has been appointed in any jurisdiction and is acting in respect of the constituent limited liability company, its affairs, or its property or any part thereof; and
no scheme, order, compromise or other similar arrangement has been ente red into or made in any jurisdiction whereby the rights of creditors of the constituent limited liability company are, and continue to be, suspended or restricted;
a manager’s declaration of the assets and liabilities of the constituent limited liabili ty company made up to the latest practicable date before the making of the declaration;
an undertaking that a copy of the certificate of merger or consolidation under subsection (11) will be given to the members and creditors of the constituent limited liability company and that notification of the merger or consolidation will be published in the Gazette; and
a manager’s declaration, where relevant, that the constituent limited liability company has complied with any applicable requirements under the regulatory laws.
A manager’s declaration under subsection (9) shall be in writing, signed by, and shall include the full name and address of, the manager making the declaration.
Upon payment of the prescribed fees under this or any other Act and upon the Registrar being satisfied that the requirements of subsection (9) in respect of the merger or consolidation have been complied with and that the name of the surviving or consolidated entity complies with section 6 , the Registrar shall register the plan of merger or consolidation including a new or amended registration statement and issue a certificate of merger or cons olidation under the Registrar’s hand and seal of office, and in the case of a consolidation section 5(4) shall apply in relation to the consolidated entity.
A certificate of merger or consolidation issued by the Registrar shall be prima facie evidence of compliance with all requirements of this Act in respect of the merger or consolidation.
Subject to section 47 , a merger or consolidation shall be effective on the date the plan of merger or consolidation is registered by the Registrar.
A person who, being a manager, makes a false declaration under subsection (9) commits an offence and is liable on sum mary conviction to a fine of twenty thousand dollars or to imprisonment for a term of five years, or both.
In any proceedings for an offence under subsection (14) it shall be a defence for the person charged to prove that that person took all reasonab le precautions and exercised all due diligence to avoid the commission of such an offence by that person or any person under that person’s control.
Any manager’s declaration pursuant to this section may be given in the form of a declaration or an affi davit, as the manager may determine.
A plan of merger or consolidation approved in accordance with this section may —
effect any amendment to the LLC agreement; or
effect the adoption of a new LLC agreement for a limited liability company if i t is the surviving or consolidated entity.
Subject to section 47, any amendment to a LLC agreement or adoption of a new LLC agreement made pursuant to subsection (17) shall be effective at the effective time or date of the merger or consolidation.