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(124th General Assembly)
(Substitute House Bill Number 349)
AN ACT
To amend sections 111.16, 1775.20, and 1782.433 and to
enact sections
1775.45
to 1745.52, 1782.241, and
1782.242 of the
Revised
Code to
modify the Uniform
Partnership Law
relative
to the accounting a
partner must make to
the
partnership and mergers
and consolidations
involving a general partnership,
and to modify the
Limited Partnerships Law relative
to the standard
of care owed a partnership by the
general partners
and self-dealing by a partner.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 111.16, 1775.20, and 1782.433 be
amended and sections
1775.45, 1775.46, 1775.47, 1775.48, 1775.49,
1775.50, 1775.51,
1775.52, 1782.241, and 1782.242 of the Revised
Code be enacted to
read as
follows:
Sec. 111.16. The secretary of state shall charge and
collect, for the benefit of the state, the following fees: (A) For filing and recording articles of incorporation of a
domestic
corporation, including designation of agent: (1) Wherein the corporation shall not be authorized to
issue
any shares of capital stock,
one hundred twenty-five dollars; (2) Wherein the corporation shall be authorized to issue
shares of capital stock, with or without par value: (a) Ten cents for each share authorized up to and
including
one thousand shares; (b) Five cents for each share authorized in excess of one
thousand shares up to and including ten thousand shares; (c) Two cents for each share authorized in excess of ten
thousand shares up to and including fifty thousand shares; (d) One cent for each share authorized in excess of fifty
thousand shares up to and including one hundred thousand shares; (e) One-half cent for each share authorized in excess of
one
hundred thousand shares up to and including five hundred
thousand
shares; (f) One-quarter cent for each share authorized in excess
of
five hundred thousand shares; provided no fee shall be less
than
one hundred twenty-five dollars or greater than one
hundred
thousand dollars. (B) For filing and recording a certificate of amendment to
or amended articles of incorporation of a domestic corporation, or
for filing and recording a certificate of reorganization, a
certificate of dissolution, or an amendment to a foreign license
application: (1) If the domestic corporation is not authorized to issue
any
shares of capital stock,
fifty dollars; (2) If the domestic corporation is authorized to issue
shares of
capital stock,
fifty dollars, and in case of
any
increase
in the number of shares authorized to be issued, a
further sum
computed in accordance with the schedule set forth in
division
(A)(2) of this section less a credit computed in the same
manner
for the number of shares previously authorized to be issued
by
the corporation; provided no fee under division (B)(2) of
this
section shall be greater than one hundred thousand dollars; (3) If the foreign corporation is not authorized to issue
any
shares of capital stock, fifty dollars; (4) If the foreign corporation is authorized to issue shares
of capital
stock, fifty dollars. (C) For filing and recording articles of incorporation of
a
savings and loan association, one hundred
twenty-five dollars;
and
for filing
and recording a certificate of amendment to or amended
articles
of incorporation
of a savings and loan
association,
fifty
dollars;
(D) For filing and recording a certificate of merger or
consolidation,
one hundred twenty-five dollars and, in the
case
of any new
corporation resulting from a consolidation or any
surviving
corporation that has an increased number of shares
authorized to
be issued resulting from a merger, an additional sum
computed in
accordance with the schedule set forth in division
(A)(2) of this
section less a credit computed in the same manner
for the number
of shares previously authorized to be issued or
represented in
this state by each of the corporations for which a
consolidation
or merger is effected by the certificate; (E) For filing and recording articles of incorporation of
a
credit union or the American credit union guaranty association,
one hundred twenty-five dollars, and for filing and
recording a
certificate
of increase in capital stock or any other
amendment of
the
articles of incorporation of a credit union or
the
association,
fifty dollars; (F) For filing and recording articles of organization of a
limited liability company, for filing and recording an
application
to become a registered foreign limited liability
company, for
filing and recording a
registration application to
become a
domestic limited
liability partnership,
or
for filing and
recording an application to become a registered foreign limited
liability
partnership,
one hundred twenty-five
dollars; (G) For filing and recording a certificate of limited
partnership or an application for registration as a foreign
limited partnership, one hundred twenty-five dollars. (H) For filing a copy of papers evidencing the
incorporation
of a municipal corporation or of annexation of
territory by a
municipal corporation, five dollars, to be paid by
the
municipal
corporation, the petitioners therefor, or their agent; (I) For filing and recording any of the following: (1) A license to transact business in this state by a
foreign corporation for profit pursuant to section 1703.04 of the
Revised Code
or a foreign nonprofit corporation pursuant to
section 1703.27 of the Revised Code, one hundred
twenty-five
dollars; (2) An annual report
or annual statement pursuant to section
1775.63
or 1785.06 of the Revised Code,
twenty-five dollars; (3)
Except as otherwise provided in this section or any
other section of the Revised Code, any other certificate or paper
that is required to be
filed and recorded or is permitted
to be
filed
and recorded
by any
provision of the Revised Code with the
secretary of state,
twenty-five dollars. (J) For filing any certificate or paper not required to be
recorded, five dollars; (K)(1) For making copies of any certificate or other paper
filed in the office of the secretary of state,
a
fee not
to
exceed one dollar per page,
except as otherwise
provided in the
Revised Code,
and for creating and affixing the
seal of the
office
of the secretary of state to any good standing
or other
certificate,
five dollars. For copies
of certificates or papers
required by state officers for official
purpose, no charge shall
be made.
(2) For creating and affixing the seal of the office of the
secretary of state to the certificates described in division (E)
of section 1701.81, division (E) of section 1705.38,
or division
(D) of section 1702.43, division (E) of section 1775.47, or
division (E) of section 1782.433 of the Revised Code, twenty-five
dollars. (L) For a minister's license to solemnize marriages, ten
dollars; (M) For examining documents to be filed at a later date
for
the purpose of advising as to the acceptability of the
proposed
filing,
fifty dollars; (N)
Fifty dollars for filing and recording
any of the
following: (1) A certificate of dissolution and accompanying documents,
or a certificate of cancellation, under section 1701.86, 1702.47,
1705.43, or 1782.10 of the Revised Code; (2) A notice of dissolution of a foreign licensed
corporation or a certificate of surrender of license by a foreign
licensed corporation under section 1703.17 of the Revised Code; (3) The withdrawal of registration of a foreign or domestic
limited liability partnership under section 1775.61 or 1775.64 of
the Revised Code, or the certificate of cancellation of
registration of a foreign limited liability company under section
1705.57 of the Revised Code; (4) The filing of a cancellation of disclaimer of general
partner status under Chapter 1782. of the Revised Code. (O)
For filing a statement of continued existence by a
nonprofit corporation, twenty-five dollars; (P) For filing a restatement under section 1705.08 or
1782.09 of the Revised Code, an amendment to a certificate of
cancellation under section 1782.10 of the Revised Code, an
amendment under section 1705.08 or 1782.09 of the Revised Code, or
a correction under section 1705.55, 1775.61, 1775.64, or 1782.52
of the Revised Code, fifty dollars; (Q) For filing for reinstatement of an entity cancelled by
operation of law, by the secretary of state, by order of the
department of taxation, or by order of a court, twenty-five
dollars; (R) For filing a change of agent, resignation of agent, or
change of agent's address under section 1701.07, 1702.06,
1703.041, 1703.27, 1705.06, 1705.55, 1746.04, 1747.03, or 1782.04
of the Revised Code, twenty-five dollars; (S) For filing and recording any of the following: (1) An application for the exclusive right to use a name or
an application to reserve a name for future use under section
1701.05, 1702.05, 1703.31, 1705.05, or 1746.06 of the Revised
Code, fifty dollars; (2) A trade name or fictitious name registration or report,
fifty dollars; (3) An application to renew any item covered by division
(S)(1) or (2) of this section that is permitted to be renewed,
twenty-five dollars; (4) An assignment of rights for use of a name covered by
division (S)(1), (2), or (3) of this section, the cancellation of
a name registration or name reservation that is so covered, or
notice of a change of address of the registrant of a name that is
so covered, twenty-five dollars. (T) For filing and recording a report to operate a business
trust or a real estate investment trust, either foreign or
domestic,
one hundred twenty-five dollars; and for filing and
recording an
amendment to a report or associated trust instrument,
or a
surrender
of authority, to operate a business trust or real
estate
investment
trust, fifty dollars; (U)(1) For filing and recording the registration of a
trademark, service mark, or mark of ownership, one hundred
twenty-five dollars; (2) For filing and recording the change of address of a
registrant, the assignment of rights to a registration, a renewal
of a registration, or the cancellation of a registration
associated with a trademark, service mark, or mark of ownership,
twenty-five dollars. Fees specified in this section may be paid by
cash, check, or
money order, by credit
cardin
card in accordance with section
113.40 of
the Revised Code, or by an alternative payment program
in
accordance with division (B) of section 111.18 of the
Revised
Code. Any credit card number or
the expiration date of
any credit
card is not subject to
disclosure under
Chapter 149. of
the
Revised Code.
Sec. 1775.20. (A) Every partner
must, other than a general
partner of a limited partnership, shall account to the partnership
for any
benefit and hold as trustee for it any profits derived by
him
the
partner without the consent of the other partners from any
transaction
connected with the formation, conduct, or liquidation
of the partnership or
from any use by
him
the partner of its
property. (B) This section applies also to the representatives of a
deceased partner
engaged in the liquidation of the affairs of the
partnership as the personal
representatives of the last surviving
partner.
Sec. 1775.45. (A) Pursuant to a written agreement of merger
between the constituent entities as provided in this section, a
domestic general partnership and one or more additional domestic
general partnerships or other domestic or foreign entities may be
merged into a surviving domestic general partnership. Pursuant
to
a written agreement of consolidation between the constituent
entities
as
provided in this section, two or more domestic or
foreign
entities
may be consolidated into a new domestic general
partnership formed
by such consolidation. If any constituent
entity is formed or
organized under the laws of any state other
than this state or
under any chapter of the Revised Code other
than this chapter, the
merger or consolidation also must be
permitted by the chapter of
the Revised Code under which each
domestic constituent entity
exists and by the laws under which
each foreign constituent entity
exists. (B) The written agreement of merger or consolidation of
constituent entities into a surviving or new domestic general
partnership
shall set
forth all of the following: (1) The name and the form of entity of each constituent
entity, the state under the laws of which each constituent
entity
exists, and the name of the surviving or new domestic general
partnership; (2) In the case of a merger, that one or more specified
constituent entities will be merged into a specified surviving
domestic general partnership, and, in the case of a
consolidation, that
the constituent entities will be consolidated
into a new domestic general
partnership; (3) All statements and matters required to be set forth in
such an agreement of merger or consolidation by the laws under
which each constituent entity exists; (4) In the case of a consolidation, the partnership
agreement of the new domestic general partnership or a provision
that the written partnership agreement of a specified constituent
general partnership, a copy of which shall be attached to the
agreement of consolidation, with any amendments that are set
forth
in the agreement of consolidation, shall be the agreement of
general partnership of the new domestic general partnership; (5) The name and address
of the statutory agent upon whom
any process, notice, or demand
against any constituent entity, the
surviving domestic general partnership, or the new domestic
general
partnership may be served; (6) In the case of a merger, any changes in the general
partners of the surviving domestic general partnership and, in
the
case of a consolidation, the general partners of the new
domestic
general partnership or a provision specifying the
general partners
of one or more specified constituent
partnerships that shall
constitute the initial general partners
of the new domestic
general partnership; (7) The terms of the merger or consolidation; the mode of
carrying them into effect; and the manner and basis of converting
the interests or shares in the constituent entities into, or
substituting the interests or shares in the constituent entities
for, interests, evidences of indebtedness, other
securities,
cash, rights, or any other property or any
combination of
interests, evidences of indebtedness,
securities, cash, rights,
or any other property of the surviving
domestic general
partnership, of the new domestic general
partnership, or of any
other entity. No such conversion or
substitution shall be
effected if there are reasonable grounds to
believe that the
conversion or substitution would render the
surviving or new
domestic general partnership unable to pay its
obligations as they
become due in the usual course of its
affairs. (C) The written agreement of merger or consolidation of
constituent entities into a surviving or new domestic general
partnership
may set
forth any of the following: (1) The effective date of the merger or consolidation,
which
date may be on or after the date of the filing of the
certificate
of merger or consolidation; (2) A provision authorizing one or more of the constituent
entities to abandon the proposed merger or consolidation prior to
filing the certificate of merger or consolidation pursuant to
section 1775.47 of the Revised Code by action of the general
partners of a constituent partnership, the directors of a
constituent corporation, or the comparable representatives of any
other constituent entity; (3) In the case of a merger, any amendments to the
agreement
of general partnership of the surviving domestic
general
partnership, or a provision that the written partnership
agreement
of a specified constituent general partnership other
than the
surviving domestic general partnership, with any
amendments that
are set forth in the agreement of merger, shall
be the partnership
agreement of the surviving domestic general
partnership; (4) A statement of, or a statement of the method of
determining, the fair value of the assets to be owned by the
surviving domestic general partnership; (5) The parties to the agreement of merger or
consolidation
in addition to the constituent entities; (6) Any additional provision necessary or desirable with
respect to the proposed merger or consolidation. (D) To effect the merger or consolidation, the agreement
of
merger or consolidation shall be adopted by the general
partners
of each constituent domestic general partnership, including the
surviving domestic general
partnership in the case of a merger,
and shall be adopted by or
otherwise authorized by or on behalf of
each other constituent
entity in accordance with the laws under
which it exists. (E) All partners, whether or not they are entitled to vote
or act, shall be given written notice of any meeting of general
partners of a constituent domestic general partnership or of any
proposed action by general partners of a constituent domestic
general partnership, which meeting or action is to adopt an
agreement of merger or consolidation. The notice shall be given
to the partners either by mail at their addresses as they appear
on the records of the partnership or in person and, unless the
partnership agreement provides a shorter or longer period, shall
be given not less than seven and not more than sixty days before
the meeting or the effective date of the action. The notice
shall
be accompanied by a copy or a summary of the material
provisions
of the agreement of merger or consolidation. (F) The vote or action of the general partners of a
constituent domestic general partnership that is required to
adopt
an agreement of merger or consolidation is the unanimous
vote or
action of the general partners or such different number
or
proportion as provided in writing in the partnership agreement.
If
the
agreement of merger or consolidation would have an effect
or
authorize any action that under any applicable provision of law
or
the partnership agreement could be effected or authorized only
by
or pursuant to a specified vote or action of the partners, or of
any
class or group of partners, the agreement of merger or
consolidation also shall be adopted or approved by the same vote
or
action as would be required to effect that change or authorize
that action. Each person who will continue to be or who will
become a general partner of a partnership that is the surviving
or
new entity in a merger or consolidation shall specifically
agree
in writing to continue or to become, as the case may be, a general
partner of the partnership that is the surviving or new entity. (G) At any time before the filing of the certificate of
merger or consolidation pursuant to section 1775.47 of the
Revised
Code, the merger or consolidation may be abandoned by the
general
partners of any constituent partnership, the directors of
any
constituent corporation, or the comparable representatives of
any
other constituent entity if the general partners, directors,
or
other representatives are authorized to do so by the agreement
of
merger or consolidation or by the same vote or action as was
required to adopt the agreement of merger or consolidation. The
agreement of merger or consolidation may contain a provision
authorizing less
than all of the general partners of any
constituent
partnership,
the directors of any constituent
corporation, or the
comparable
representatives of any other
constituent entity to
amend the
agreement of merger or
consolidation at any time before
the
filing of the certificate of
merger or consolidation, except
that, after the adoption of the
agreement of merger or
consolidation by the general partners of
any constituent domestic
general partnership, less than all of the
general partners shall
not be authorized
to amend the agreement of
merger or
consolidation to do any of
the following: (1) Alter or change the amount or kind of interests,
shares,
evidences of indebtedness, other securities, cash,
rights, or any
other property to be received by general partners
of the
constituent domestic general partnership in conversion of,
or in
substitution for, their interests; (2) Alter or change any term of the partnership agreement
of
the surviving or new domestic general partnership, except for
alterations or changes that could otherwise be adopted by the
general partners of the surviving or new domestic general
partnership; (3) Alter or change any other terms and conditions of the
agreement of merger or consolidation if any of the alterations or
changes, alone or in the aggregate, would materially adversely
affect the general partners or any class or group of general
partners of the constituent domestic general partnership.
Sec. 1775.46. (A) Pursuant to a written agreement of merger
or
consolidation between the constituent entities as provided in
this
section, a domestic general partnership and one or more
additional
domestic or foreign entities may be merged into a
surviving entity
other than a domestic general partnership, or a
domestic general
partnership together with one or more additional
domestic or
foreign entities may be consolidated into a new
entity
other than
a domestic general partnership to be formed by
such
consolidation.
The merger or consolidation must be
permitted by
the chapter of
the Revised Code under which each
domestic
constituent entity
exists and by the laws under which
each foreign
constituent entity
exists. (B) The written agreement of merger or consolidation shall
set
forth
all of the following: (1) The name and the form of entity of each constituent
entity and the state under the laws of which each constituent
entity exists; (2) In the case of a merger, that one or more specified
constituent domestic general partnerships and other specified
constituent entities will be merged into a specified surviving
foreign entity or surviving domestic entity other than a domestic
general partnership, or, in the case of a consolidation, that the
constituent entities will be consolidated into a new foreign
entity or a new domestic entity other than a domestic general
partnership; (3) If the surviving or new entity is a foreign general
partnership, all statements and matters that would be
required by
section 1775.45 of the Revised Code if the surviving
or new entity
were a domestic general partnership; (4) The name and the form of entity of the surviving or
new
entity, the state under the laws of which the surviving
entity
exists or the new entity is to exist, and the location of
the
principal office of the surviving or new entity; (5) All additional statements and matters required to be
set
forth in such an agreement of merger or consolidation by the
laws
under which each constituent entity exists and, in the case
of a
consolidation, the new entity is to exist; (6) The consent of the surviving or new foreign entity to be
sued
and served with process in this state and the irrevocable
appointment of the secretary of state as its agent to accept
service of process in any proceeding in this state to enforce
against the surviving or new foreign entity any obligation of any
constituent domestic general partnership or to enforce the rights
of a dissenting partner of any constituent domestic general
partnership; (7) If the surviving or new entity is a foreign
corporation
that desires to transact business in this state as a
foreign
corporation, a statement to that effect, together with a
statement
regarding the appointment of a statutory agent and
service of any
process, notice, or demand upon that statutory
agent or the
secretary of state, as required when a foreign
corporation applies
for a license to transact business in this
state; (8) If the surviving or new entity is a foreign limited
partnership that desires to transact business in this state as a
foreign limited partnership, a statement to that effect, together
with all of the information required under section 1782.49 of the
Revised Code when a foreign limited partnership registers to
transact business in this state; (9) If the surviving or new entity is a foreign limited
liability company that desires to transact business in this state
as a foreign limited liability company, a statement to that
effect, together with all of the information required under
section 1705.54 of the Revised Code when a foreign limited
liability company registers to transact business in this state. (C) The written agreement of merger or consolidation also
may set
forth any additional provision permitted by the laws of
any state
under the laws of which any constituent entity exists,
consistent
with the laws under which the surviving entity exists
or the new
entity is to exist. (D) To effect the merger or consolidation, the agreement
of
merger or consolidation shall be adopted by the general
partners
of each constituent domestic general partnership, in the
same
manner and with the same notice to and vote or action of
partners
or of a particular class or group of partners as is
required by
section 1775.45 of the Revised Code. The agreement
of merger or
consolidation also shall be approved or otherwise
authorized by or
on behalf of each constituent entity in
accordance with the laws
under which it exists. Each person who
will continue to be or who
will become a general partner of a
partnership that is the
surviving or new entity in a merger or
consolidation shall
specifically agree in writing to continue or to become,
as the
case may be, a general partner of the surviving or new
entity. (E) At any time before the filing of the certificate of
merger or consolidation pursuant to section 1775.47 of the
Revised
Code, the merger or consolidation may be abandoned by the
general
partners of any constituent partnership, the directors of
any
constituent corporation, or the comparable representatives of
any
other constituent entity if the general partners, directors,
or
comparable representatives are authorized to do so by the
agreement of merger or consolidation. The agreement of merger or
consolidation may contain a provision authorizing less than all of
the general
partners of any constituent partnership, the directors
of any
constituent corporation, or the comparable representatives
of any
other constituent entity to amend the agreement of merger
or
consolidation at any time before the filing of the certificate
of
merger or consolidation, except that after the adoption of the
agreement of merger or consolidation by the general partners of
any constituent domestic general partnership, less than all of the
general
partners shall not be authorized to amend the agreement of
merger
or consolidation to do any of the following: (1) Alter or change the amount or kind of interests,
shares,
evidences of indebtedness, other securities, cash,
rights, or any
other property to be received by general partners
of the
constituent domestic general partnership in conversion of
or in
substitution for their interests; (2) If the surviving or new entity is a partnership, alter
or change any term of the partnership agreement of the surviving
or new partnership, except for alterations or changes that
otherwise could be adopted by the general partners of the
surviving or new partnership; (3) If the surviving or new entity is a corporation or any
other entity other than a partnership, alter or change any term
of
the articles or comparable instrument of the surviving or new
corporation or entity, except for alterations or changes that
otherwise could be adopted by the directors or comparable
representatives of the surviving or new corporation or entity; (4) Alter or change any other terms and conditions of the
agreement of merger or consolidation if any of the alterations or
changes, alone or in the aggregate, would materially adversely
affect the general partners or any class or group of general
partners of the constituent domestic general partnership.
Sec. 1775.47. (A) Upon the adoption by each constituent
entity of an agreement of merger or consolidation pursuant to
section 1775.45 or 1775.46 of the Revised Code, a certificate
of
merger or consolidation shall be filed with the secretary of
state
that is signed by an authorized representative of each
constituent
entity. The certificate shall be on a form
prescribed by the
secretary of state and shall set forth only the
information
required by this section. (B)(1) The certificate of merger or consolidation shall
set
forth all of the following: (a) The name and the form of entity of each constituent
entity and the state under the laws of which each constituent
entity exists; (b) A statement that each constituent entity has complied
with all of the laws under which it exists and that the laws
permit the merger or consolidation; (c) The name and mailing address of the person or entity
that is to provide, in response to any written request made by a
shareholder, partner, or other equity holder of a constituent
entity, a copy of the agreement of merger or consolidation; (d) The effective date of the merger or consolidation,
which
date may be on or after the date of the filing of the
certificate; (e) The signature of the representative or representatives
authorized to sign the certificate on behalf of each constituent
entity and the office held or the capacity in which the
representative is acting; (f) A statement that the agreement of merger or
consolidation is authorized on behalf of each constituent entity
and that the persons who signed the certificate on behalf of each
entity are authorized to do so; (g) In the case of a merger, a statement that one or more
specified constituent entities will be merged into a specified
surviving entity or, in the case of a consolidation, a statement
that the constituent entities will be consolidated into a new
entity; (h) The name and form of the
surviving entity in the case
of a merger or the name and form of
the new entity in
the case of
a consolidation; (i) In the case of a merger, if the surviving entity is a
foreign entity not licensed to transact business in this state,
the name and address of the statutory agent upon whom any
process,
notice, or demand may be served; (j) In the case of a consolidation, the name and address
of
the statutory agent upon whom any process, notice, or demand
against any constituent entity or the new entity may be served. (2) In the case of a consolidation into a new domestic
corporation, limited liability company, or limited partnership,
the articles of incorporation, the articles of
organization, or
the certificate of limited partnership of the
new domestic entity
shall be filed with the certificate of
consolidation. (3) In the case of a merger into a domestic corporation,
limited liability company, or limited partnership, any amendments
to the
articles of incorporation, articles
of organization, or
certificate of limited partnership of the
surviving domestic
entity shall be filed with the certificate of merger. (4) If the surviving or new entity is a foreign entity
that
desires to transact business in this state as a foreign
corporation, limited liability company, or limited partnership,
the certificate of merger or consolidation shall be accompanied
by
the information required by division (B)(7), (8), or (9) of
section 1775.46 of the Revised Code. (5) If a foreign or domestic corporation licensed to
transact business in this state is a constituent entity and the
surviving or new entity resulting from the merger or
consolidation
is not a foreign or domestic corporation that is to
be licensed to
transact business in this state, the certificate
of merger or
consolidation shall be accompanied by the
affidavits, receipts,
certificates, or other evidence required by
division (H) of
section 1701.86 of the Revised Code, with respect
to each domestic
constituent corporation, and by the affidavits,
receipts,
certificates, or other evidence required by division
(C) or (D) of
section 1703.17 of the Revised Code, with respect
to each foreign
constituent corporation licensed to transact
business in this
state. (C) If any constituent entity in a merger or consolidation
is organized or formed under the laws of a state other than this
state or under any chapter of the Revised Code other than this
chapter, there also shall be filed in the proper office all
documents that are required to be filed in connection with the
merger or consolidation by the laws of that state or by that
chapter. (D) Upon the filing of a certificate of merger or
consolidation and other filings as described in division (C) of
this section or at any later date that the certificate of merger
or consolidation specifies, the merger or consolidation is
effective, subject to the
limitation specified in division (B)(7)
of section 1775.45 of the
Revised Code. (E) The secretary of state shall furnish, upon request and
payment of
the fee specified in division (K)(2) of section 111.16
of the Revised Code, the secretary of state's
certificate setting
forth: the name and form of entity of each
constituent
entity and
the
states under the laws of which each
constituent entity existed
prior to the merger or consolidation;
the name and the form of
entity of the surviving or new entity and
the state under the
laws
of which the surviving entity exists or
the new entity is to
exist; the date of filing of the certificate
of merger or
consolidation with the secretary of state; and the
effective date
of the merger or consolidation. The certificate of
the secretary
of state, or a copy of the certificate of merger or
consolidation
certified by the secretary of state, may be filed
for record in
the office of the recorder of any county in this
state and, if
filed, shall be recorded in the records of deeds for
that county.
For that recording, the county recorder shall charge
and collect
the same fee as in the case of deeds.
Sec. 1775.48. (A) When a merger or consolidation becomes
effective, all of the following apply: (1) The separate existence of each constituent entity
other
than the surviving entity in a merger shall cease, except
that
whenever a conveyance, assignment, transfer, deed, or other
instrument or act is necessary to vest property or rights in the
surviving or new entity, the general partners, officers, or other
authorized representatives of the respective constituent entities
shall execute, acknowledge, and deliver such instruments and do
such acts. For these purposes, the existence of the constituent
entities and the authority of their respective general partners,
officers, directors, or other representatives are continued
notwithstanding the merger or consolidation. (2) In the case of a consolidation, the new entity exists
when the consolidation becomes effective and, if the new entity
is
a domestic general partnership, the written partnership
agreement
contained in or provided for in the agreement of
consolidation
shall be its original partnership agreement.
(3) In
the case of a merger in which the surviving entity
is a general
partnership, the written partnership agreement of the
surviving
general partnership in effect immediately prior to the
time the
merger becomes effective shall be its partnership
agreement after
the merger except as otherwise provided in the
agreement of
merger. (4) The surviving or new entity possesses all of the
following, and all of the following are vested in the surviving or
new entity without further act or deed: (a) Except to the extent limited by the mandatory provisions
of applicable law, the following: (i) All
assets and
property of every description of each
constituent entity, and every interest in the assets
and property
of each constituent entity, wherever the assets, property, and
interests are located. Title to any real estate
or any interest
in real estate that was vested in any constituent
entity shall
not revert or in any way be impaired by reason of
the merger or
consolidation. (ii) The rights, privileges, immunities, powers, franchises,
and authority, whether of a public or private nature, of each
constituent entity.
(b) All obligations belonging to or due to each constituent
entity.
(5)
The surviving or new entity is liable for all the
obligations of each constituent entity, including liability to
dissenting partners, dissenting shareholders, or other dissenting
equity holders. Any claim existing or any action or proceeding
pending by or against any constituent entity may be prosecuted to
judgment with right of appeal, as if the merger or consolidation
had not taken place, or the surviving or new entity may be
substituted in place of any constituent entity. (6) All the rights of creditors of each constituent entity
are preserved unimpaired, and all liens upon the property of any
constituent entity are preserved unimpaired, on only the property
affected by such liens immediately before the effective date of
the merger or consolidation. If a general partner of a
constituent partnership is not a general partner of the entity
surviving or the new entity resulting from the merger or
consolidation, then the former general partner shall have no
liability for any obligation incurred after the merger or
consolidation except to the extent that a former creditor of the
constituent partnership in which the former general partner was a
general partner extends credit to the surviving or new entity
reasonably believing that the former general partner continued as
a general partner of the surviving or new entity. (B) If a general partner of a constituent partnership is
not
a general partner of the entity surviving or the new entity
resulting from the merger or consolidation, then unless that
general partner agrees otherwise in writing, the general
partner
shall be
indemnified by the surviving or new entity against all
present or
future liabilities of the constituent partnership of
which the
general partner was
a general partner. Any amount
payable pursuant to section
1775.50 of the Revised Code to a
partner of the constituent
partnership in which that general
partner was a partner shall be
a present liability of that
constituent partnership. (C) In the case of a merger of a constituent domestic
general partnership into a foreign surviving corporation, limited
liability company, or
general partnership that is not licensed or
registered to
transact business in this state or in the case of a
consolidation
of a constituent domestic limited partnership into a
new foreign
corporation, limited liability company, or limited
partnership, if the surviving or new
entity intends to transact
business in this state and the
certificate of merger or
consolidation is accompanied by the
information described in
division (B)(4) of section 1775.47 of
the Revised Code, then on
the effective date of the merger or
consolidation the surviving or
new entity shall be considered to
have complied with the
requirements for procuring a license or
for registration to
transact business in this state as a foreign
corporation, limited
liability company, or limited partnership,
as the case may be. In
such a case, a copy of the certificate of
merger or consolidation
certified by the secretary of state
constitutes the license
certificate prescribed for a foreign
corporation or the
application for registration prescribed for a
foreign limited
liability company or foreign limited partnership. (D) Any action to set aside any merger or consolidation on
the ground that any section of the Revised Code applicable to the
merger or consolidation has not been complied with shall be
brought within ninety days after the effective date of the merger
or consolidation or forever be barred. (E) In the case of an entity organized or existing under
the
laws of any state other than this state, this section is
subject
to the laws of the state under the laws of which the
entity exists
or in which it has property.
Sec. 1775.49. (A) Unless otherwise provided in writing
in
the partnership agreement of a constituent domestic general
partnership, the following are entitled to relief as dissenting
partners as provided in section 1775.50 of the Revised Code: (1) Partners of a domestic general partnership that is
being
merged or consolidated into a surviving or new entity,
domestic or
foreign, pursuant to section 1775.45 or 1775.46 of
the Revised
Code; (2) In the case of a merger into a domestic general
partnership, partners of the surviving domestic general
partnership who under section 1775.45 of the Revised Code are
entitled to vote or act on the adoption of an agreement of
merger,
but only as to the interests so entitling them to vote or
act. (B) Unless otherwise expressly agreed to in writing, a
general partner of any constituent partnership shall be liable to
the partners of the constituent partnership for any amount
payable
to them pursuant to section 1775.50 of the Revised Code
as if the
amount so payable were an existing liability of the
constituent
partnership at the time of the merger or
consolidation.
Sec. 1775.50. (A) A partner of a domestic general
partnership is entitled to relief as a dissenting partner in
respect of the proposals described in section 1775.49 of the
Revised Code only in compliance with this section. (B) If the proposal of merger or consolidation is to be
submitted to the partners at a meeting, the dissenting partner
shall be a partner and a record holder of the partnership
interests as to which the dissenting partner seeks relief as
of
the date fixed for
the determination of partners entitled to
notice of the meeting,
and such interests shall not have been
voted in favor of the
proposal. Not later than ten days after the
date on which the
vote on the proposal was taken at the meeting of
the partners,
the dissenting partner shall deliver to the general
partnership a
written demand for payment to the dissenting partner
of the
fair cash value of the
interests as to which the dissenting
partner seeks relief
that states the dissenting partner's address,
the number and class of those interests, and the amount claimed
by
the dissenting partner as the fair cash value of the
interests. (C) If the proposal of merger or consolidation is to be
submitted to the partners for their written approval or other
action without a meeting, the dissenting partner shall be a
partner
and a record holder of the interests of the partnership as
to
which the dissenting partner seeks relief as of the date the
request for approval or action was sent to the
partners entitled
to act or otherwise
approve the proposal, and
the dissenting
partner shall not have
indicated approval of
the proposal in the
dissenting partner's
capacity as a
holder of such interests. Not
later than fifteen
days after the date on which the request for
approval of or action on the proposal
was mailed to the partners,
the
dissenting partner shall deliver
to the partnership a written
demand for payment to the dissenting
partner of the fair
cash
value of the interests
as to which the
dissenting partner seeks
relief, which demand
shall state the
dissenting partner's
address,
the number and class of such
interests, and the amount
claimed by
the dissenting partner as the
fair cash value of
those interests. (D) In the case of a merger or consolidation, a demand
served on the constituent domestic general partnership involved
constitutes service on the surviving entity or the new entity,
whether the demand is served before, on, or after the effective
date of the merger or consolidation. (E) If the interests as to which a dissenting partner
seeks
relief are represented by certificates and if the domestic
general
partnership sends to the dissenting partner, at the
address
specified in the dissenting partner's demand, a
request for
certificates
representing the interests as to which the dissenting
partner
seeks relief, the
dissenting partner, within fifteen days
from the date on which
the request was sent, shall deliver to the
general partnership
the certificates requested so that the general
partnership may
endorse on them a legend to the effect that a
demand for the fair
cash value of such interests has been made.
The general
partnership promptly shall return the endorsed
certificates to
the dissenting partner. The failure of a
dissenting partner to
deliver such certificates terminates rights
as a dissenting
partner, at the option of the general partnership,
exercised by
written notice sent to the dissenting partner within
twenty days
after the lapse of the fifteen-day period, unless a
court for
good cause shown otherwise directs. If interests
represented by
a certificate on which such a legend has been
endorsed are
transferred, each new certificate issued for them
shall bear a
similar legend, together with the name of the
original dissenting
holder of such interests. Upon receiving a
demand for payment
from a dissenting partner who is a record
holder of
uncertificated interests, the general partnership shall
make an
appropriate notation of the demand for payment in its
records.
If uncertificated interests for which payment has been
demanded
are to be transferred, any writing sent to evidence the
transfer
shall bear the legend required for certificated
interests
as
provided in this division. A transferee of the
interests
receiving a certificate so endorsed, or of
uncertificated
interests where such a notation has been made,
acquires only
such
rights in the general partnership as the
original partner
holding
such interests had immediately after the
service of a
demand for
payment of the fair cash value of the
interests. A
request under
this division by the general
partnership is not an
admission by it
that the holder of the
interest is entitled to
relief under this
section. (F) Unless the partnership agreement of the constituent
domestic general partnership in which the dissenting partner was
a
partner provides a reasonable basis for determining and paying
the
fair cash value of the interests as to which the dissenting
partner seeks relief or unless that partnership and the
dissenting
partner have come to an agreement on the fair cash
value of the
interests as to which the dissenting partner seeks
relief, the
dissenting partner or the general partnership, which
in the case
of a merger or consolidation may be the surviving or
new entity,
within ninety days after the service of the demand
by the
dissenting partner, may file a complaint under section
1775.51 of
the Revised Code. The complaint shall be filed in
the court of
common pleas of the county in which the principal
office of the
general partnership that issued the interests is
located or was
located when the proposal of merger or consolidation was adopted
by the
partners of the
general partnership. Other dissenting
partners,
within that
ninety-day period, may join as plaintiffs or
may be
joined as
defendants in any such proceeding, and any two or
more
such
proceedings may be consolidated. (G) The right and obligation of a dissenting partner to
receive such fair cash value and to sell such interests as to
which the dissenting partner seeks relief and the right and
obligation of the
domestic general partnership to purchase such
interests and to
pay the fair cash value of them terminate if any
of the following
applies: (1) The dissenting partner has not complied with this
section, unless the general partnership waives such failure. (2) The general partnership abandons the merger or
consolidation or is finally enjoined or prevented from carrying
it
out, or the partners rescind their adoption or approval of the
merger or consolidation. (3) The dissenting partner withdraws the dissenting
partner's demand, with the
consent of the general partnership. (4) All of the following apply: (a) The partnership agreement of the constituent domestic
general partnership in which the dissenting partner was a partner
does not provide a reasonable basis for determining and paying
the
dissenting partner the fair cash value of the dissenting
partner's
interest. (b) The general partnership and the dissenting partner
have
not agreed upon the fair cash value of the interest. (c) Neither the dissenting partner nor the general
partnership has filed or joined in a complaint under division (F)
of this section within the period provided in that division. (H) Unless otherwise provided in the partnership agreement
of the constituent domestic general partnership in which the
dissenting partner was a partner, from the time the dissenting
partner gives the demand until either the termination of the
rights and obligations arising from it or the purchase of the
interests by the general partnership, all other rights accruing
from such interests, including voting or distribution rights, are
suspended. If, during the suspension, any distribution is paid
in
money upon interests of such class or any dividend,
distribution,
or interest is paid in money upon any securities
issued in
extinguishment of, or in substitution for, such
interest, an
amount equal to the dividend, distribution, or
interest that,
except for the suspension, would have been payable
upon such
interests or securities shall be paid to the holder of
record as a
credit upon the fair cash value of the interests. If
the right to
receive fair cash value is terminated other than by
the purchase
of the interests by the general partnership, all
rights of the
dissenting partner shall be restored and all
distributions that,
except for the suspension, would have been
made shall be made to
the holder of record of the interests at
the time of termination.
Sec. 1775.51. (A) When authorized by division (F) of
section 1775.50 of the Revised Code, a dissenting partner or
general partnership may file a complaint under this section
demanding the relief described in this section. A complaint
filed
under this section shall contain a brief statement of the
facts,
including the vote or action by the partners and the facts
entitling the dissenting partner to the relief demanded. No
answer to such a complaint is required. Upon the filing of such
a
complaint, the court, on motion of the petitioner, shall enter
an
order fixing a date for a hearing on the complaint and
requiring
that a copy of the complaint and a notice of the filing
and of the
date for the hearing be given to the respondent or
defendant in
the manner in which summons is required to be served
or
substituted service is required to be made in other cases. On
the
date fixed for the hearing on the complaint or any
adjournment of
it, the court shall determine from the complaint
and from such
evidence as is submitted by either party whether
the dissenting
partner is entitled to be paid the fair cash value
of any
interests and, if so, the number and class of such
interests. If
the court finds that the dissenting partner is so
entitled, it may
appoint one or more persons as appraisers to
receive evidence and
to recommend a decision on the amount of the
fair cash value. The
appraisers have such power and authority as
is specified in the
order of their appointment. The court
thereupon shall make a
finding as to the fair cash value of the
interests and shall
render judgment against the general
partnership for the payment of
it, with interest at such rate and
from such date as the court
considers equitable. The costs of
the proceeding, including
reasonable compensation to the
appraisers to be fixed by the
court, shall be assessed or
apportioned as the court considers
equitable. The proceeding is
a special proceeding and final
orders in it may be vacated,
modified, or reversed on appeal
pursuant to the Rules of
Appellate Procedure and, to the extent
not in conflict with those
rules, Chapter 2505. of the Revised
Code. If, during the
pendency of any proceeding under this
section, a suit or
proceeding is or has been instituted to enjoin
or otherwise to
prevent the carrying out of the action as to which
the partner
has dissented, the proceeding instituted under this
section shall
be stayed until the final determination of the other
suit or
proceeding. Unless any provision of division (G) of
section
1775.50 of the Revised Code is applicable, the fair cash
value
of the interests that is agreed upon by the parties or fixed
under this section shall be paid within thirty days after the
date
of final determination of such value under this division or
the
consummation of the merger or consolidation, whichever occurs
last. Upon the occurrence of the last such event, payment shall
be made immediately to a holder of uncertificated interests
entitled to such payment. In the case of holders of interests
represented by certificates, payment shall be made only upon and
simultaneously with the surrender to the domestic general
partnership of the certificates representing the interests for
which the payment is made. (B) If the proposal of merger or consolidation was submitted
to the partners of the
general partnership for a vote at a
meeting, fair cash value as
to
those partners shall be determined
as of the day before the
day on
which the vote by the partners was
taken. If the proposal
was
submitted to the partners for written
approval or other
action,
fair cash value as to those partners
shall be determined
as of the
day before the day on which the
request for the
approval or action
was sent. The fair cash value
of an interest
for purposes of this
section is the amount that a
willing seller
who is under no
compulsion to sell would be willing
to accept and
that a willing
buyer who is under no compulsion to
purchase would
be willing to
pay, but the fair cash value paid to
any partner
shall not exceed
the amount specified in the demand of
that
partner. In computing
such fair cash value, any appreciation
or
depreciation in market
value resulting from the merger or
consolidation shall be
excluded.
Sec. 1775.52. If a domestic general partnership is a
constituent entity to a merger or consolidation that has become
effective, and the domestic general partnership is not the
surviving or resulting entity of the merger or consolidation, a
judgment creditor of a partner of that domestic general
partnership shall not levy execution against the assets of the
partner to satisfy a judgment based on a claim against the
surviving or resulting entity of the merger or consolidation
unless any of the following applies:
(A) The claim is for an obligation of the domestic general
partnership for which the partner is liable as provided in this
chapter and one of the following applies: (1) A judgment based on the same claim has been obtained
against the surviving or resulting entity of the merger or
consolidation and a writ of execution on the judgment has been
returned unsatisfied in whole or in part. (2) The surviving or resulting entity of the merger or
consolidation is a debtor in bankruptcy.
(3) The partner has agreed that the creditor need not
exhaust the assets of the domestic general partnership that was
not the surviving or resulting entity of the merger or
consolidation.
(4) The partner has agreed that the creditor need not
exhaust the assets of the surviving or resulting entity of the
merger or consolidation. (B) A court grants permission to the judgment creditor to
levy execution against the assets of the partner based on a
finding that the assets of the surviving or resulting entity of
the merger or consolidation that are subject to execution are
clearly insufficient to satisfy the judgment, that exhaustion of
the assets of the surviving or resulting entity of the merger or
consolidation is excessively burdensome, or that the grant of
permission is an appropriate exercise of the court's equitable
powers.
(C) Liability is imposed on the partner by law or contract
independent of the existence of the surviving or resulting entity
of the merger or consolidation.
Sec. 1782.241. (A) A general partner shall perform the
duties of a general partner in good faith, in a manner the general
partner reasonably believes to be in or not opposed to the best
interests of the limited partnership, and with the care that an
ordinarily prudent person in a like position would use under
similar circumstances. In performing a general partner's duties,
a general partner is entitled to rely on information, opinions,
reports, or statements, including financial statements and other
financial data, that are prepared or presented by either of the
following:
(1) One or more general partners, employees of the limited
partnership, or employees of a general partner, who the general
partner reasonably believes are reliable and competent in the
matters prepared or presented;
(2) Legal counsel, public accountants, or other persons as
to matters that the general partner reasonably believes are within
the person's professional or expert competence.
(B) For purposes of division (A) of this section, the
following apply:
(1) A general partner shall not be found to have violated
the duties of a general partner under division (A) of this
section, unless it is proved by clear and convincing evidence that
the general partner has not acted in good faith, in a manner the
general partner reasonably believes to be in or not opposed to the
best interests of the limited partnership, or with the care that
an ordinarily prudent person in a like position would use under
similar circumstances, in any action brought against the general
partner, including actions involving or affecting the general
partner's service in any other position or relationship with the
limited partnership.
(2) A general partner shall not be considered to be acting
in good faith if the general partner has knowledge concerning the
matter in question that would cause reliance on information,
opinions, reports, or statements that are prepared or presented by
the persons described in divisions (A)(1) and (2) of this section
to be unwarranted.
Sec. 1782.242. No contract, action, or transaction shall be
void or voidable with respect to a limited partnership for the
reason that the contract, action, or transaction is among or
affects the limited partnership and one or more of its partners,
or that the contract, action, or transaction is among or affects
the limited partnership and any other person in which one or more
of the partners are directors, trustees, officers, or partners, or
have a financial or personal interest, if any of the following
applies:
(A) The material facts as to the partner or partners and
their relationship or interest and as to the contract, action, or
transaction are disclosed in writing to every partner before that
partner is admitted to the partnership.
(B) The material facts as to the partner or partners and
their relationship or interest and as to the contract, action, or
transaction are disclosed in writing to all partners; the
contract, action, or transaction is fair as to the limited
partnership; and the disinterested general partners acting in good
faith reasonably justified by the facts, authorize the contract,
action, or transaction by a majority vote, even though the
disinterested general partners constitute less than a majority of
the general partners.
(C) The contract, action, or transaction is fair as to the
limited partnership as of the time the contract, action, or
transaction is authorized and approved by a majority in interest
of the disinterested limited partners.
Sec. 1782.433. (A) Upon the adoption by each constituent
entity of an agreement of merger or consolidation pursuant to
section 1782.431 or 1782.432 of the Revised Code, a certificate
of
merger or consolidation shall be filed with the secretary of
state
that is signed by an authorized representative of each
constituent
entity. The certificate shall be on a form
prescribed by the
secretary of state and shall set forth only the
information
required by this section. (B)(1) The certificate of merger or consolidation shall
set
forth all of the following: (a) The name and the form of entity of each constituent
entity and the state under the laws of which each constituent
entity exists; (b) A statement that each constituent entity has complied
with all of the laws under which it exists and that the laws
permit the merger or consolidation; (c) The name and mailing address of the person or entity
that is to provide, in response to any written request made by a
shareholder, partner, or other equity holder of a constituent
entity, a copy of the agreement of merger or consolidation; (d) The effective date of the merger or consolidation,
which
date may be on or after the date of the filing of the
certificate; (e) The signature of the representative or representatives
authorized to sign the certificate on behalf of each constituent
entity and the office held or the capacity in which the
representative is acting; (f) A statement that the agreement of merger or
consolidation is authorized on behalf of each constituent entity
and that the persons who signed the certificate on behalf of each
entity are authorized to do so; (g) In the case of a merger, a statement that one or more
specified constituent entities will be merged into a specified
surviving entity or, in the case of a consolidation, a statement
that the constituent entities will be consolidated into a new
entity; (h) In the case of a merger, if the surviving entity is a
foreign entity not licensed to transact business in this state,
the name and address of the statutory agent upon whom any
process,
notice, or demand may be served; (i) In the case of a consolidation, the name and address
of
the statutory agent upon whom any process, notice, or demand
against any constituent entity or the new entity may be served. (2) In the case of a consolidation into a new domestic
corporation, limited liability company, or limited partnership,
the articles of incorporation, the articles of
organization, or
the certificate of limited partnership of the
new domestic entity
shall be filed with the certificate of merger or
consolidation. (3) In the case of a merger into a domestic corporation,
limited liability company, or limited partnership, any amendments
to the
articles of incorporation, articles
of organization, or
certificate of limited partnership of the
surviving domestic
entity shall be filed with the certificate of merger or
consolidation. (4) If the surviving or new entity is a foreign entity
that
desires to transact business in this state as a foreign
corporation, limited liability company, or limited partnership,
the certificate of merger or consolidation shall be accompanied
by
the information required by division (B)(7), (8), or (9) of
section 1782.432 of the Revised Code. (5) If a foreign or domestic corporation licensed to
transact business in this state is a constituent entity and the
surviving or new entity resulting from the merger or
consolidation
is not a foreign or domestic corporation that is to
be licensed to
transact business in this state, the certificate
of merger or
consolidation shall be accompanied by the
affidavits, receipts,
certificates, or other evidence required by
division (H) of
section 1701.86 of the Revised Code, with respect
to each domestic
constituent corporation, and by the affidavits,
receipts,
certificates, or other evidence required by division
(C) or (D) of
section 1703.17 of the Revised Code, with respect
to each foreign
constituent corporation licensed to transact
business in this
state. (C) If any constituent entity in a merger or consolidation
is organized or formed under the laws of a state other than this
state or under any chapter of the Revised Code other than this
chapter, there also shall be filed in the proper office all
documents that are required to be filed in connection with the
merger or consolidation by the laws of that state or by that
chapter. (D) Upon the filing of a certificate of merger or
consolidation and other filings as described in division (C) of
this section or at any later date that the certificate of merger
or consolidation specifies, the merger or consolidation is
effective. (E) The secretary of state shall furnish, upon request and
payment of
the fee
specified in division
(D)(K)(2) of
section
111.16
of the Revised Code, the secretary of state's
certificate
setting
forth: the name and form of entity of each
constituent
entity and
the
states under the laws of which each
constituent
entity existed
prior to the merger or consolidation;
the name and
the form of
entity of the surviving or new entity and
the state
under the
laws
of which the surviving entity exists or
the new
entity is to
exist; the date of filing of the certificate
of
merger or
consolidation with the secretary of state; and the
effective date
of the merger or consolidation. The certificate of
the secretary
of state, or a copy of the certificate of merger or
consolidation
certified by the secretary of state, may be filed
for record in
the office of the recorder of any county in this
state and, if
filed, shall be recorded in the records of deeds for
that county.
For that recording, the county recorder shall charge
and collect
the same fee as in the case of deeds.
SECTION 2. That existing sections 111.16, 1775.20, and
1782.433 of the Revised Code
are hereby repealed.
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