Tex.
Bus. Orgs. Code Section 200.261
Vote Required to Approve Fundamental Action
(a)
In this section, a “fundamental action” means:(1)
an amendment of a certificate of formation, including an amendment required for cancellation of an event requiring winding up in accordance with Section 11.152 (Continuation of Business Without Winding up)(b);(2)
a voluntary winding up under Chapter 11 (Winding up and Termination of Domestic Entity);(3)
a revocation of a voluntary decision to wind up under Section 11.151 (Revocation of Voluntary Winding up);(4)
a cancellation of an event requiring winding up under Section 11.152 (Continuation of Business Without Winding up)(a); or(5)
a reinstatement under Section 11.202 (Procedures for Reinstatement).(b)
Except as otherwise provided by this code or the certificate of formation or bylaws of a real estate investment trust in accordance with Section 200.260 (Voting on Matters Other than Election of Trust Managers), the vote required for approval of a fundamental action by the shareholders is the affirmative vote of the holders of at least two-thirds of the outstanding shares entitled to vote on the fundamental action.(c)
If a class or series of shares is entitled to vote as a class or series on a fundamental action, the vote required for approval of the action by the shareholders is the affirmative vote of the holders of at least two-thirds of the outstanding shares in each class or series of shares entitled to vote on the action as a class and at least two-thirds of the outstanding shares otherwise entitled to vote on the action. Shares entitled to vote as a class or series shall be entitled to vote only as a class or series unless otherwise entitled to vote on each matter generally or otherwise provided by the certificate of formation.(d)
Unless an amendment to the certificate of formation is undertaken by the trust managers under Section 200.103 (Classes of Shares Established by Trust Managers), separate voting by a class or series of shares of a real estate investment trust is required for approval of an amendment to the certificate of formation that would result in:(1)
the increase or decrease of the aggregate number of authorized shares of the class or series;(2)
the increase or decrease of the par value of the shares of the class, including changing shares with par value into shares without par value or changing shares without par value into shares with par value;(3)
effecting an exchange, reclassification, or cancellation of all or part of the shares of the class or series;(4)
effecting an exchange or creating a right of exchange of all or part of the shares of another class or series into the shares of the class or series;(5)
the change of the designations, preferences, limitations, or relative rights of the shares of the class or series;(6)
the change of the shares of the class or series, with or without par value, into the same or a different number of shares, with or without par value, of the same class or series or another class or series;(7)
the creation of a new class or series of shares with rights and preferences equal, prior, or superior to the shares of the class or series;(8)
increasing the rights and preferences of a class or series with rights and preferences equal, prior, or superior to the shares of the class or series;(9)
increasing the rights and preferences of a class or series with rights or preferences later or inferior to the shares of the class or series in such a manner that the rights or preferences will be equal, prior, or superior to the shares of the class or series;(10)
dividing the shares of the class into series and setting and determining the designation of the series and the variations in the relative rights and preferences between the shares of the series;(11)
the limitation or denial of existing preemptive rights or cumulative voting rights of the shares of the class or series; or(12)
canceling or otherwise affecting the dividends on the shares of the class or series that have accrued but have not been declared.(e)
Unless otherwise provided by the certificate of formation, if the holders of the outstanding shares of a class that is divided into series are entitled to vote as a class on a proposed amendment that would affect equally all series of the class, other than a series in which no shares are outstanding or a series that is not affected by the amendment, the holders of the separate series are not entitled to separate class votes.(f)
Unless otherwise provided by the certificate of formation, a proposed amendment to the certificate of formation that would solely effect changes in the designations, preferences, limitations, or relative rights, including voting rights, of one or more series of shares of the real estate investment trust that have been established under the authority granted to the trust managers in the certificate of formation in accordance with Section 200.103 (Classes of Shares Established by Trust Managers) does not require the approval of the holders of the outstanding shares of a class or series other than the affected series if, after giving effect to the amendment:(1)
the preferences, limitations, or relative rights of the affected series may be set and determined by the trust managers with respect to the establishment of a new series of shares under the authority granted to the trust managers in the certificate of formation in accordance with Section 200.103 (Classes of Shares Established by Trust Managers); or(2)
any new series established as a result of a reclassification of the affected series are within the preferences, limitations, and relative rights that are described by Subdivision (1).
Source:
Section 200.261 — Vote Required to Approve Fundamental Action, https://statutes.capitol.texas.gov/Docs/BO/htm/BO.200.htm#200.261 (accessed Jun. 5, 2024).
