Sec. 1701.15. (A) The shareholders of
a corporation do not | 14 |
have a pre-emptive right to acquire the corporation's
unissued | 15 |
shares except to the extent the articles so provide. If the | 16 |
articles provide that the holders of the shares of any class, | 17 |
other than
shares that are limited as to dividend or distribution | 18 |
rate and
liquidation price, have pre-emptive rights, those | 19 |
holders,
upon
the
offering or sale for cash of
shares of the same | 20 |
class, shall have the right, during a reasonable
time and on | 21 |
reasonable terms fixed by the directors, to purchase
the shares in | 22 |
proportion to their respective holdings of
shares
of such class, | 23 |
at a price fixed as provided in this chapter, unless the
shares | 24 |
offered or sold are in any of the following categories: | 25 |
(6) Offered to shareholders in satisfaction of their | 37 |
pre-emptive rights and not purchased by
such
those shareholders, | 38 |
and
thereupon issued or agreed to be issued for a consideration | 39 |
not
less than that at which the shares were so offered to
such | 40 |
those shareholders, less reasonable expenses, compensation, or | 41 |
discount
paid or allowed for the sale, underwriting, or purchase | 42 |
of
the
shares, unless by the affirmative vote or written order of | 43 |
the
holders of two-thirds of the shares otherwise entitled to
the | 44 |
pre-emptive rights, the pre-emptive rights are restored as to any | 45 |
of the shares not previously
issued or agreed to be issued; | 46 |
(7) Released from pre-emptive rights by the affirmative
vote | 47 |
or written consent of the holders of two-thirds of the
shares | 48 |
entitled to the pre-emptive rights. Any such vote
or consent | 49 |
shall be entered in the records of the corporation and
shall be | 50 |
binding on all shareholders and their transferees for
the time | 51 |
specified in the vote or consent up to but not
exceeding one year, | 52 |
and shall protect all persons who within
that time acquire the | 53 |
shares or options on or conversion or other
rights with respect to | 54 |
the shares so released; | 55 |
(8) Released from pre-emptive rights by the affirmative
vote | 56 |
or written consent of the holders of a majority of the
shares | 57 |
entitled to the pre-emptive rights, for offering and
sale, or the | 58 |
grant of options
issuance of option rights or securities having | 59 |
conversion or option rights with respect
thereto
to those shares, | 60 |
to any or all
employees of
the corporation or of subsidiary | 61 |
corporations or to
a trustee on
their behalf, under a plan adopted | 62 |
or to be adopted
by the
directors for that purpose. | 63 |
(B) No action shall be brought upon any cause of action | 64 |
arising under division (A) of this section at any time after two | 65 |
years from the day on which a written notice or other | 66 |
communication is given or mailed to each shareholder having the | 67 |
cause of
action informing the shareholder of the transaction | 68 |
giving rise to the cause of action, and no action shall
in any | 69 |
event be brought
upon any cause of action of that nature at any | 70 |
time after
four years from
the day on which the cause of action | 71 |
arose, or from the
effective date of this provision, whichever is | 72 |
the later. | 73 |
(C) The provisions of division
(A) of this section as they | 74 |
existed prior to
the effective date of this amendment
March
17, | 75 |
2000, shall
continue to apply to any corporation incorporated | 76 |
prior to
the effective date of this amendment
March
17,
2000, | 77 |
until the shareholders of the
corporation adopt an amendment to | 78 |
its articles expressly
providing that the provisions of division | 79 |
(A) of this section that take effect on
the effective date of this | 80 |
amendment
March
17, 2000,
apply to the corporation or amended | 81 |
articles of incorporation. | 82 |
|
Sec. 1701.16. (A) Unless the articles otherwise provide,
a | 83 |
corporation by its directors may
grant options to subscribe for
or | 84 |
create and issue option rights or securities having conversion or | 85 |
option rights that entitle the holders of the securities to | 86 |
purchase
or acquire shares
of any authorized class, option rights, | 87 |
securities having conversion or option rights, or obligations, of | 88 |
any class or series, or assets of the corporation, or to purchase | 89 |
or acquire from the corporation shares, option rights, securities | 90 |
having conversion or option rights, or obligations, of any class | 91 |
or series, owned by the corporation and issued by any other | 92 |
person, at the times and on
the
terms that are set forth in the | 93 |
securities, or in the
contracts,
warrants, or
other instruments | 94 |
that evidence the options,
which
evidencing those option rights, | 95 |
securities having conversion or option rights, or obligations. | 96 |
Those contracts, warrants, or
other instruments may be | 97 |
transferable or
nontransferable and may be separable or | 98 |
inseparable from
securities, upon the following conditions: | 99 |
(1) If the shares are subject to
preemptive
pre-emptive | 100 |
rights and if
the
options
option rights or securities having | 101 |
conversion or option rights are not
granted
issued to shareholders | 102 |
in satisfaction of
their
preemptive
pre-emptive rights, the | 103 |
granting
issuance of the
options must
option rights or securities | 104 |
having conversion or option rights shall be
authorized by the vote | 105 |
or consent of the shareholders or holders
of shares of particular | 106 |
classes that then would be required to
waive or release
such | 107 |
preemptive
those pre-emptive rights. The vote or consent
shall | 108 |
release the
preemptive
pre-emptive rights to the shares required | 109 |
to
satisfy the
options
option or conversion rights if and when | 110 |
exercised. | 111 |
(2) If, at the time of
granting
issuing the
options
option | 112 |
rights or securities having conversion or option rights, the | 113 |
corporation
does not have authorized and unissued shares | 114 |
sufficient to satisfy
the
options
option or conversion rights if | 115 |
and when exercised, the
granting
issuance of the
options
must | 116 |
option rights or securities having conversion or option rights | 117 |
shall be authorized by the vote of the
shareholders or holders of | 118 |
shares of particular classes that then
would be required to adopt | 119 |
an amendment to the articles for the
purpose of increasing the | 120 |
authorized number of
such
those shares, and
the. The shares | 121 |
required to be
issued upon the exercise of the
options
option or | 122 |
conversion rights shall be provided by an
amendment concurrently | 123 |
or thereafter
adopted by the shareholders
or the directors. | 124 |
(B)(1) The securities, contracts, warrants, or
other | 125 |
instruments
that evidence the options
evidencing any option | 126 |
rights, securities having conversion or option rights, or | 127 |
obligations of a corporation may contain any terms not repugnant | 128 |
to
law
that are fixed by the board of directors for the protection | 129 |
of the holders of the
options
option rights, securities having | 130 |
conversion or option rights, or obligations of the corporation, | 131 |
including,
but not limited to, the following: | 132 |
(f) Conditions
on the exercise of the options, including, | 147 |
but not limited to, subject to the limitation specified in | 148 |
division (B)(2) of this
section, conditions that preclude
the | 149 |
holder or holders of at
least
or limit any person or persons | 150 |
owning or offering to acquire a specified number or percentage of | 151 |
the outstanding common
shares, other shares, option rights, | 152 |
securities having conversion or option rights, or obligations of
a | 153 |
the corporation
or any transferee or transferees of the person or | 154 |
persons from exercising
the options, converting, transferring, or | 155 |
receiving the shares, option rights, securities having conversion | 156 |
or option rights, or obligations of the corporation, including | 157 |
conditions that limit or condition the right of directors who are | 158 |
not disinterested directors, as defined in division (C)(2)(c) of | 159 |
section 1701.59 of the Revised Code, to modify or redeem the | 160 |
shares, option rights, securities having conversion or option | 161 |
rights, or obligations. | 162 |
(2) The express or implied authority conferred by division | 163 |
(B)(1) of this section or any other section of this chapter for | 164 |
securities, contracts, warrants, or
other instruments
that | 165 |
evidence
options
evidencing option rights, securities having | 166 |
conversion or option rights, or obligations of a corporation to | 167 |
contain a condition
on the exercise of options that
precludes the | 168 |
holder or holders of at least a specified number or
percentage of | 169 |
the outstanding common shares of a corporation from
exercising | 170 |
options
as described in division (B)(1)(f) of this section shall | 171 |
apply only to the following: | 172 |
(b) A corporation that has adopted a close corporation | 177 |
agreement pursuant to which
options
option rights or securities | 178 |
having conversion or option rights are
granted
issued, if the | 179 |
securities, contracts, warrants, or
other instruments
that | 180 |
evidence the
options
evidencing the option rights, securities | 181 |
having conversion or option rights, or obligations of the | 182 |
corporation contain a condition
that precludes the holder or | 183 |
holders
of at least a specified number or percentage of the | 184 |
outstanding
common shares of that corporation from exercising the | 185 |
options
as described in division (B)(1)(f) of this section. | 186 |
Sec. 1701.17. A corporation by its directors, upon
such
any | 189 |
terms
as
that it may
impose, may provide and carry out plans
for | 190 |
the
offering or sale, or the
grant
of options
issuance of
option | 191 |
rights or securities having conversion or option rights, to | 192 |
employees of the
corporation or of subsidiary corporations, or
to | 193 |
a trustee on
their behalf, during the period of their employment | 194 |
or other
period, of, or with respect to, any unissued shares, | 195 |
treasury
shares, or
shares to be purchased, which. Those plans | 196 |
may provide for the
payment for such
shares at one time or in | 197 |
installments, or for the
establishment of special
funds in which | 198 |
employees may participate.
Shares otherwise subject to
pre-emptive | 199 |
rights may be offered or
sold under
such
those plans only when | 200 |
released
from pre-emptive rights. | 201 |
(9) When authorized by the shareholders at a meeting
called | 228 |
for such purpose, by the affirmative vote of the holders
of | 229 |
two-thirds of the shares of each class, regardless of
limitations | 230 |
or restrictions in the articles on the voting rights
of the shares | 231 |
of any such class, or if the articles so provide or
permit, a | 232 |
greater or lesser proportion, but not less than a
majority, of the | 233 |
shares of any class; | 234 |
Sec. 1701.59. (A) Except where the law, the articles, or | 252 |
the regulations require action to be authorized or taken by | 253 |
shareholders, all of the authority of a corporation shall be | 254 |
exercised by or under the direction of its directors. For their | 255 |
own government, the directors may adopt bylaws that are not | 256 |
inconsistent with the articles or the regulations. The selection | 257 |
of a time frame for the achievement of corporate goals shall be | 258 |
the responsibility of the directors. | 259 |
(B) A director shall perform the director's duties as a | 260 |
director,
including the duties as a member of any committee of the | 261 |
directors upon which the director may serve, in good faith,
in a | 262 |
manner the director
reasonably believes to be in or not opposed to | 263 |
the best interests
of the corporation, and with the care that an | 264 |
ordinarily prudent
person in a like position would use under | 265 |
similar circumstances.
In performing a director's duties, a | 266 |
director is entitled to
rely on
information, opinions, reports, or | 267 |
statements, including
financial statements and other financial | 268 |
data, that are prepared
or presented by any of the following: | 269 |
(1) A director shall not be found to have violated the | 283 |
director's
duties under division (B) of this section unless it is | 284 |
proved by
clear and convincing evidence that the director has not | 285 |
acted in
good faith, in a manner the director reasonably believes | 286 |
to
be in or not
opposed to the best interests of the corporation, | 287 |
or with the
care that an ordinarily prudent person in a like | 288 |
position would
use under similar circumstances, in any action | 289 |
brought against a
director, including actions involving or | 290 |
affecting any of the
following: | 291 |
(a) A change or potential change in control of the | 292 |
corporation, including a determination to resist a change or | 293 |
potential change in control made pursuant to division (F)(7) of | 294 |
section 1701.13 of the Revised Code
or a decision not to redeem | 295 |
any rights under, or to modify or render inapplicable, any | 296 |
shareholder rights plan, including, but not limited to, a plan | 297 |
adopted with the conditions described in division (B)(1)(f) of | 298 |
section 1701.16 of the Revised Code; | 299 |
(2)(a) In the absence of a breach of fiduciary duty, lack of | 315 |
good faith, or self-dealing, any act of a director is presumed to | 316 |
be in the best interests of the corporation. In assessing whether | 317 |
the standards set forth in division (B) of this section have been | 318 |
satisfied, there shall not be any greater obligation to justify, | 319 |
or higher burden of proof with respect to, any act as a director | 320 |
relating to or affecting an acquisition of control or potential
or | 321 |
proposed acquisition of control of the corporation than is
applied | 322 |
to any other act as a director. | 323 |
|
(b) Notwithstanding division (C)(2)(a) of this section, any | 324 |
act of a director relating to or affecting an acquisition of | 325 |
control or potential or proposed acquisition of control of the | 326 |
corporation to which a majority of the disinterested directors of | 327 |
the corporation have assented is presumed to satisfy the standards | 328 |
set forth in division (B) of this section, unless it is proved by | 329 |
clear and convincing evidence that the disinterested directors did | 330 |
not assent to that act in good faith after reasonable | 331 |
investigation.
| 332 |
(D) A director shall be liable in damages for any action | 372 |
that the director takes or fails to take as a director only
if it | 373 |
is proved by
clear and convincing evidence in a court of competent | 374 |
jurisdiction that the director's action or failure to act
involved | 375 |
an act or
omission undertaken with deliberate intent to cause | 376 |
injury to the
corporation or undertaken with reckless disregard | 377 |
for the best
interests of the corporation. Nothing contained in | 378 |
this division
affects the liability of directors under section | 379 |
1701.95 of the
Revised Code or limits relief available under | 380 |
section 1701.60 of
the Revised Code. This division does not apply | 381 |
if, and only to
the extent that, at the time of a director's act | 382 |
or omission that
is the subject of complaint, the articles or the | 383 |
regulations of
the corporation state by specific reference to this | 384 |
division that
the provisions of this division do not apply to the | 385 |
corporation. | 386 |
(F)
In determining the best interests of a corporation or the | 406 |
effects of any action, a director shall not be required to regard | 407 |
any corporate interest or the interests of any particular group | 408 |
affected by that action as a dominant or controlling interest or | 409 |
factor. The consideration of interests and factors in the manner | 410 |
described in this division and division (E) of this section does | 411 |
not constitute a violation of the duties of a director under | 412 |
division (B) of this section. | 413 |
(2) A director of a corporation that does not have issued | 429 |
and outstanding shares that are listed on a national securities | 430 |
exchange or are regularly quoted in an over-the-counter market by | 431 |
one or more members of a national or affiliated securities | 432 |
association, who votes for or assents to any action taken by the | 433 |
directors of the corporation that, in connection with a change in | 434 |
control of the corporation, directly results in the holder or | 435 |
holders of a majority of the outstanding shares of the
corporation | 436 |
receiving a greater consideration for their shares
than other | 437 |
shareholders. | 438 |
Sec. 1701.70. (A) If initial directors are not named in the | 443 |
articles,
before
subscriptions to shares have
been received
and | 444 |
before the incorporators have elected directors, the incorporators | 445 |
may adopt an amendment to the articles by a writing
signed by | 446 |
them. If initial directors are named in the articles, or if the | 447 |
incorporators have elected directors and have not received | 448 |
subscriptions, then
before subscriptions to shares have been | 449 |
received, the directors may adopt an
amendment to the articles. | 450 |
(1) When and to the extent authorized by the articles, the | 453 |
directors may adopt an amendment determining, in whole or in part, | 454 |
the
express terms, within the limits set forth in this chapter, of | 455 |
any class of
shares before the issuance of any shares of that | 456 |
class, or of one or more
series within a class before the issuance | 457 |
of shares of that series. | 458 |
(2) When the corporation has issued shares or
obligations | 459 |
convertible into shares of the corporation or has
granted
options | 460 |
issued option rights or securities having conversion or option | 461 |
rights with respect to
the purchase
or acquisition of any shares, | 462 |
and
the conversion
or option rights are
set forth in the articles | 463 |
or have been
approved by the same vote
of shareholders as, at the | 464 |
time of
the
approval, would have been
required to amend the | 465 |
articles to
authorize the shares required
for that purpose, and | 466 |
the
corporation does not have sufficient
authorized but unissued | 467 |
shares to satisfy those conversion or
option rights, the
directors | 468 |
may adopt an amendment to authorize
the
shares. | 469 |
(3) Whenever shares of any class have been redeemed, or
have | 470 |
been surrendered to or acquired by the corporation upon | 471 |
conversion, exchange, purchase, or otherwise, the directors may | 472 |
adopt an amendment to reduce the authorized number of shares of | 473 |
the class by the number so redeemed, surrendered, or
acquired;
and | 474 |
when all of the authorized shares of a class have been
redeemed or | 475 |
surrendered to or acquired by the corporation, the
directors may | 476 |
adopt an amendment to eliminate from the articles
all references | 477 |
to the shares of the class and to make
other
appropriate changes | 478 |
that are required by
the elimination. | 479 |
(4) When articles have been amended and any change of
issued | 480 |
or unissued shares provided for in the amendment or
amended | 481 |
articles has become effective, the directors
may
adopt an | 482 |
amendment to eliminate from the articles all references
to the | 483 |
change of shares and to make any other appropriate
changes that | 484 |
are required by the
elimination; however,
an amendment to
the | 485 |
articles
that is so adopted by the
directors shall
contain a | 486 |
statement with
respect to the authorized number and the par
value, | 487 |
if any, of the
shares of each class. | 488 |
(C) If a vote on the adoption of an
amendment is required by | 503 |
division (B)(4) of section 1701.71 of
the Revised Code, any | 504 |
amendment to the
articles adopted pursuant to division (B) of this | 505 |
section that
creates a class or series of shares the express terms | 506 |
of which
provide for the convertibility of the shares into shares | 507 |
of
another class shall also require the approval of the holders, | 508 |
voting as a class, of any issued and outstanding shares into which | 509 |
the shares
may be converted. | 510 |
Sec. 1701.75. (A) A corporation, a plan of reorganization | 511 |
of which shall
have been confirmed by the decree or order of a | 512 |
court of competent
jurisdiction pursuant to the provisions of any | 513 |
applicable statute of the
United States relating to reorganization | 514 |
of corporations, may put into effect
and carry out the plan and | 515 |
the decrees and orders of the court relative
thereto
to the plan, | 516 |
and may take
any proceeding and do any act provided in the plan or | 517 |
directed by
such decrees and orders, without further action by its | 518 |
directors
or shareholders.
Such
That authority may be exercised, | 519 |
and
such
those proceedings and
acts may be taken or done, as | 520 |
directed by such
decrees or orders, by the
trustee or trustees of | 521 |
such
the corporation
appointed in the reorganization
proceedings | 522 |
(or a majority
thereof), or if none shall have been appointed, by | 523 |
designated
officers of the corporation, or by a master or other | 524 |
representative
appointed by the court, with like effect as if | 525 |
exercised and taken by
unanimous action of the directors and | 526 |
shareholders of the corporation. | 527 |
(B) A corporation, in the manner provided in division (A) of | 528 |
this section,
but without limiting the generality thereof, may: | 529 |
amend its articles in any
respect; amend or repeal its regulations | 530 |
or adopt new regulations; name,
constitute, reconstitute, | 531 |
classify, or reclassify its directors and appoint
directors and | 532 |
officers in place of or in addition to some or all of the | 533 |
directors or officers then in office; make any lawful change in | 534 |
its stated
capital; make a determination of the fair value to the | 535 |
corporation of its
assets; transfer all or a part of its assets; | 536 |
merge; consolidate; remove or
appoint a statutory agent; authorize | 537 |
the
granting
issuance of option rights
or securities having | 538 |
conversion or option rights in respect
of shares and other | 539 |
securities; authorize the issuing of notes, bonds, and
other | 540 |
evidences of indebtedness, whether or not convertible into shares | 541 |
or
other securities; lease its property to any corporation; | 542 |
dissolve; or effect
any other change authorized by this chapter. | 543 |
(C) If a plan of reorganization provides for or effects an | 544 |
amendment to the
articles or the merger, consolidation, or | 545 |
dissolution of a corporation, or if
a plan having such a result is | 546 |
modified in respect of
such
that amendment, merger,
consolidation, | 547 |
or
dissolution, a certificate of reorganization or an amended | 548 |
certificate of
reorganization, as the case may be, setting forth | 549 |
such portions of the plan
of reorganization or modification | 550 |
thereof
of the plan as would otherwise be required to be
set forth | 551 |
in a
certificate of amendment, an agreement of merger or | 552 |
consolidation,
or a certificate of dissolution (and, if desired, | 553 |
any other
portions thereof) shall be filed in the office of the | 554 |
secretary of
state and
shall operate to effect
such
that | 555 |
amendment, merger,
consolidation, or dissolution.
Such
The | 556 |
certificate shall be made,
subscribed, and filed as may be | 557 |
directed by
such decrees or
orders
of the court, or, in the | 558 |
absence of such direction, by the
president or
a vice-president | 559 |
and the secretary or an assistant secretary.
The
certificate | 560 |
shall contain a statement that the plan of
reorganization has
been | 561 |
confirmed by the decree or order of the
court designated in the | 562 |
certificate or that the plan so confirmed
has been modified by | 563 |
order of such
court, as the case may be. | 564 |