This post uses hypothetical scenarios for illustrative purposes only. It does not describe any actual client, transaction, or representation, and is not legal advice.
A Jacksonville founder reaches counsel from his car last spring, parked outside the closing dinner he had been told for six weeks would be the night before signing. He had thirteen members on the cap table of his Florida LLC. The merger consent itself was not the problem — he had a majority-in-interest signed, which is what Florida law requires by default for an LLC merger. The problem was that the buyer’s counsel, two weeks earlier, had asked for a Florida LLC operating agreement amendment to install a drag-along the buyer wanted in place at closing. The amendment threshold under his form operating agreement — tracking the statutory default — was unanimous. Twelve members had signed. The thirteenth, a former employee with a small profits-interest grant, was not returning calls.
He wanted to know if he had a deal. The answer was yes — but only if he could close without the amendment, which meant either persuading the buyer to drop the drag-along ask, or finding a procedural workaround. The leverage had migrated to the holdout, and the holdout had figured out that he had it.
The mistake in his deal team’s mental model was not unusual. Out-of-state M&A counsel reading Florida’s Revised LLC Act often look at the consent thresholds for mergers and conversions, see that the statute defaults to majority-in-interest, and exhale. They are right about the merger threshold. They are wrong if they stop reading there. The real unanimous-consent trap in the Florida statute sits at § 605.04073(1)(d), and it bites hardest precisely when the deal is far enough along that the holdout knows what’s happening.
What the merger default actually is, and what it is not
The cleaner starting point is to set out the statute correctly, because the misreading I see most often is the opposite of what the FRLLCA actually says. Section 605.04073(1)(c) provides that, for a member-managed Florida LLC, the affirmative vote or consent of a majority-in-interest of the members is required to undertake an act, “including a transaction under ss. 605.1001-605.1072.” Sections 605.1001 through 605.1072 cover mergers, conversions, interest exchanges, and domestications. The statutory default for a merger of a Florida LLC, in other words, is majority-in-interest — the same economic-majority threshold that applies to most out-of-ordinary-course matters. The 2025 member-consent threshold analysis covers the merger-side mechanics in more depth.
Section 605.1023(1)(a) confirms the rule on the merger side. A plan of merger is not effective unless approved “by a majority-in-interest of the members” of the domestic merging LLC, except as the operating agreement provides otherwise.
The narrower trap on the merger side lives in § 605.1023(1)(b), which adds a separate consent requirement for any member who, as a result of the merger, will have “interest holder liability” for the surviving entity’s obligations. That member — and only that member — must consent in a record. The practical universe of mergers where this carve-out bites is small: an LLC converting into a general partnership, or merging into a non-Florida entity that imposes interest-holder liability on equity holders by the law of its formation jurisdiction. For the ninety-five percent of LLC mergers that send the target into a corporate buyer’s acquisition vehicle, § 605.1023(1)(b) does not change the majority-in-interest analysis. Buyer’s counsel who flag it on a routine deal are over-reading the statute. The statute is publicly available on the Florida Legislature’s website, and the text of subsections (1)(c) and (2)(d) is unambiguous on the majority-in-interest default.
The Florida LLC operating agreement amendment unanimity default that actually bites
The piece of § 605.04073 that catches selling founders is subsection (1)(d) for member-managed LLCs and the corresponding subsection (2)(e) for manager-managed LLCs. Each provides that the affirmative vote or consent of all members is required to amend the operating agreement and the articles of organization. That is the one categorical unanimous-consent default in the entire voting-rights section. Amendment is the trap.
The reason this rule bites in M&A is not that the merger itself requires an amendment. It does not. The reason is that the diligence process, and the buyer’s first markup of the merger agreement, routinely identify provisions in the target’s operating agreement that the buyer wants tightened or loosened before closing. A drag-along provision the operating agreement never had. A transfer-restriction provision the buyer wants narrowed to permit post-closing flow-down to subsidiaries. A consent-threshold provision the buyer wants modernized so that the post-closing LLC can act efficiently as a wholly-owned subsidiary. A capital-account or distribution-waterfall provision the buyer wants reset to reflect the new ownership structure.
Each of these is an operating-agreement amendment. Each requires unanimous member consent under the statutory default. And each, because the buyer raised it during diligence or contract negotiation, hits the cap table at exactly the moment the holdout member is most likely to be paying attention and most likely to recognize the leverage.
The Florida Bar Journal’s multi-part treatment of the Revised Act in 2013-2014 flagged this rule as a substantive change from the prior Florida LLC statute, Chapter 608, which had permitted operating agreements to vary or eliminate the consent requirement for amendments. The Revised Act made the unanimous-consent rule explicit and, notably, dropped the prior statute’s authorization for an OA to override it. Whether and how the operating agreement can still override the default is its own contested question. The text of subsections (1)(d) and (2)(e) is conspicuously missing the “except as otherwise provided” carve-out that opens subsections (1)(c) and (2)(d), and at least some Florida commentary reads that omission as making the unanimity requirement non-waivable. Other practitioners read § 605.0105 as still permitting OA variance. The question is genuinely open. The prudent drafting assumption is that an OA adopted at formation may set a lower amendment threshold from inception, but that any attempt to lower the threshold by amendment must itself clear the unanimous bar — the bootstrapping problem in its cleanest form. By the time the founder notices the threshold is too high, the holdouts have figured out that they control its modification.
Why the drag-along problem is the canonical one
The amendment that most frequently triggers the trap is the drag-along installation. A drag-along provision lets the majority equity holders compel the minority to sell their interests on the same terms. It is a core M&A enablement tool, and most professionalized cap tables include one from the Series A onward. Florida founder-formed LLCs, particularly those formed without venture financing, often do not. The operating agreement is a short form — sometimes four pages, sometimes a Secretary-of-State template — that does not address the question.
When a sale comes together, the buyer wants a drag-along for two reasons. First, the buyer wants every member’s interest in the sale, not just the interest of the members who happen to be willing to sign at closing. Second, the buyer wants a clean post-closing capitalization, which means resolving the holdout’s interest before the buyer takes ownership. A drag-along can be added at closing — through an operating-agreement amendment that the members execute simultaneously with the merger consent — but the amendment requires unanimous member consent, and the holdout member who would be dragged is the one whose signature the amendment requires.
The drag-along trap is, in other words, a chicken-and-egg problem. The drag-along the merger needs cannot be installed without the consent of the same member it would be dragging.
The workaround buyer’s counsel typically reaches for is to restructure the merger as an interest purchase from each member individually — bypassing the merger statute entirely and turning the deal into a series of contractual purchases. That structure works, but it has costs. The seller’s transaction expenses go up. The buyer loses the procedural protection that § 605.1023’s majority-in-interest threshold provides — if a member declines to sign the individual purchase agreement, the buyer simply does not buy that member’s interest, which leaves the buyer with a fractional ownership outcome the buyer almost never wants. The seller’s other members lose the certainty that the merger statute provides about the timing and effectiveness of the close.
The cleaner fix is in the operating agreement, executed before the sale process begins. The corporate-governance side of the analysis is the part most founders defer until it cannot be fixed cheaply. An operating-agreement amendment installed at formation, or at the first round of financing, or at the moment the founder begins thinking about an eventual sale, costs the founder nothing meaningful while the cap table is friendly. The same amendment, when the cap table is crowded and the holdout is paying attention, can be impossible.
The diligence ask that surfaces the issue earlier
For buyer-side practitioners, the cleaner discipline is to ask three diligence questions in the first request list. First, what does the operating agreement say about amendment thresholds? Second, does the operating agreement contain a drag-along, and if so, is its trigger threshold consistent with the consent the buyer expects to receive on the merger? Third, are there any operating-agreement provisions the buyer’s deal team will want modified between signing and closing — transfer restrictions, board composition, capital-call mechanics — and if so, can the seller represent that the modifications can be made through an amendment that the existing cap table will support?
The third question is the one most diligence checklists skip. It is the one that determines whether the deal team is walking into a holdout-leverage scenario at closing. Local Florida M&A counsel involvement at the LOI stage is the lowest-cost way to surface the issue while the seller still has time to fix it.
For seller-side practitioners, the discipline is to read the operating agreement against the diligence response list and identify every contemplated post-LOI amendment before signing. Each contemplated amendment is a unanimous-consent event under the FRLLCA default unless the operating agreement modifies the threshold. Each unanimous-consent event is a holdout veto point. The seller-friendly framing of the consent process is to negotiate the amendment threshold down in the operating agreement at formation, to install the drag-along before the sale process begins, and to leave nothing material for mid-process amendment.
What’s actually unanimous-default in § 605.04073, and what is not
Because the misreading I keep encountering runs in the opposite direction from the actual rule, it is worth stating cleanly what the FRLLCA voting-rights section actually puts in the unanimous bucket and what it does not.
The unanimous-default categories under § 605.04073 are amendment of the operating agreement and amendment of the articles of organization, full stop. Subsections (1)(d) and (2)(e) set this rule for member-managed and manager-managed LLCs respectively.
Out-of-ordinary-course actions — including mergers, conversions, interest exchanges, and domestications under §§ 605.1001 through 605.1072 — default to majority-in-interest under subsections (1)(c) and (2)(d). The (1)(c) language reaches every act “whether within or outside the ordinary course,” which means the consent threshold for a sale of substantially all assets that is not separately addressed elsewhere in the chapter likewise runs through the (1)(c)/(2)(d) majority-in-interest rule unless the operating agreement provides otherwise. (Section 605.04074 is the agency statute — it governs whether a member or manager’s act binds the company — not a separate consent-threshold provision; the “appropriate vote of the members” it references for non-ordinary-course acts is the vote prescribed by § 605.04073.)
The narrow exception — the member who would acquire post-merger interest-holder liability and must consent in a record under § 605.1023(1)(b) — applies only in the unusual conversion scenarios identified above. Dissolution under § 605.0701 is its own creature: the statute lists five separate triggers (an OA-specified event, the consent of all members, a 90-day no-member period, judicial dissolution, and administrative dissolution), only one of which — the all-member-consent trigger in subsection (2) — is unanimous on its face. The statute is not the across-the-board unanimity provision that some out-of-state treatises imply, but the member-vote path to dissolution is.
This matters for two reasons. First, founders who believe (incorrectly) that the merger requires unanimous consent over-invest in amending the consent threshold and under-invest in installing the drag-along. Second, founders who believe (correctly) that the merger is a majority-in-interest matter can under-appreciate the amendment trap that travels alongside almost every modern deal.
The honest summary
The Florida LLC merger default is majority-in-interest, which is permissive. The Florida LLC operating agreement amendment default is unanimous, which is restrictive. The piece that catches selling founders is not the merger; it is the amendment the merger nearly always requires alongside it — the drag-along the operating agreement never had, the transfer-restriction the buyer wants narrowed, the post-closing-governance provision the buyer wants modernized. Each of those is an amendment. Each is a unanimous-consent event by statutory default. Each is a holdout veto point if the cap table has acquired even one inattentive small member.
The drafting fix is small, known, and cheap when it is done at formation or at the first financing round. The fix is expensive, sometimes impossible, when it is left for the eve of a sale. The buyer-side diligence question that surfaces it earliest is “what amendments will we want to make between signing and closing, and can the existing cap table support them.” That question belongs on the first diligence list, not the third.
If you are a Florida LLC founder approaching a sale and your operating agreement is a short form that has not been updated as your cap table has grown, or you are running a process and the buyer has just asked for an amendment you are not sure your members will sign, feel free to reach out to my firm manager, Magda, at Magda@montague.law, or fill out our contact form. We work with Florida LLC founders from our Fernandina Beach office and across the state. Mention you read this post.
