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(126th General Assembly)
(Amended Substitute House Bill Number 301)
AN ACT
To amend sections 111.16, 1701.01, 1701.10, 1701.11, 1701.17, 1701.18, 1701.19, 1701.40, 1701.41, 1701.44, 1701.51, 1701.54, 1701.57, 1701.58, 1701.62, 1701.63, 1701.73, 1701.75, 1701.76, 1701.81, 1701.831, 1701.84, 1701.85, 1701.92, 1704.02, 1704.03, 1705.09, 1705.19, 1705.40, 1705.41, 1705.42, 1707.01, 1707.041, 1707.20, 1707.44, 1775.01, 1775.05, 1775.14, 1775.45 to 1775.52, 1782.435, 1782.436, and 1782.437 and to enact sections 1701.782, 1701.792, 1701.802, 1701.811, 1701.821, 1701.921, 1705.361, 1705.371, 1705.381, 1705.391, 1705.61, 1707.142, 1775.53 to 1775.56, 1782.438, 1782.439, 1782.4310, 1782.4311, and 1782.65 of the Revised Code to authorize and specify applicable provisions to conversions of business entities by corporations, limited liability companies, and general, limited liability, and limited partnerships; to expand the limited liability of registered limited liability partnerships; to limit liability to limited partnerships; to modify the Corporation Law relating to regulations or articles, shareholder rights, delegation authority, acceptable payments for shares, director meetings, executive committees, actions authorized after bankruptcy, distributions to shareholders when the issuing corporation "spins off" a subsidiary corporation, reorganization and restructuring of holding company corporations, and control share acquisitions; to modify the Limited Liability Company Law to specify acceptable forms of contributions; and to modify the Securities Law relating to dealer recordkeeping and filing requirements, tender offers, and incorporation in Ohio law of future amendments to federal securities laws.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 111.16, 1701.01, 1701.10, 1701.11, 1701.17, 1701.18, 1701.19, 1701.40, 1701.41, 1701.44, 1701.51, 1701.54, 1701.57, 1701.58, 1701.62, 1701.63, 1701.73, 1701.75, 1701.76, 1701.81, 1701.831, 1701.84, 1701.85, 1701.92, 1704.02, 1704.03, 1705.09, 1705.19, 1705.40, 1705.41, 1705.42, 1707.01, 1707.041, 1707.20, 1707.44, 1775.01, 1775.05, 1775.14, 1775.45, 1775.46, 1775.47, 1775.48, 1775.49, 1775.50, 1775.51, 1775.52, 1782.435, 1782.436, and 1782.437 be amended and sections 1701.782, 1701.792, 1701.802, 1701.811, 1701.821, 1701.921, 1705.361, 1705.371, 1705.381, 1705.391, 1705.61, 1707.142, 1775.53, 1775.54, 1775.55, 1775.56, 1782.438, 1782.439, 1782.4310, 1782.4311, and 1782.65 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 conversion, including a designation of agent, a certificate of merger, or
a certificate of 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)
A biennial report
or
biennial 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 1701.811, division (E) of section 1705.38, division (E) of section 1705.381, division
(D) of section 1702.43, division (E) of section 1775.47, or division (E) of section 1775.55, division (E) of section 1782.433, or division (E) of section 1782.4310 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. (V) For filing a service of process with the secretary of state, five dollars, except as otherwise provided in any section of the Revised Code. Fees specified in this section may be paid by
cash, check, or
money order, by credit
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. 1701.01. As used in sections 1701.01 to 1701.98 of
the
Revised Code, unless the context otherwise requires: (A) "Corporation" or "domestic corporation" means a
corporation for profit formed under the laws of this state. (B) "Foreign corporation" means a corporation for profit
formed under the laws of another state, and "foreign entity" means
an entity
formed under the laws of another state. (C) "State" means the United States; any state, territory,
insular possession, or other political subdivision of the United
States, including the District of Columbia; any foreign country
or
nation; and any province, territory, or other political
subdivision of such foreign country or nation. (D) "Articles" includes original articles of
incorporation,
certificates of reorganization, amended articles, and amendments
to any of these, and, in the case of a corporation created before
September 1, 1851, the special charter and any amendments to it
made by special act of the general assembly or pursuant to
general
law. (E) "Incorporator" means a person who signed the original
articles of incorporation. (F) "Shareholder" means a person whose name appears on the
books of the corporation as the owner of shares of such
the corporation. Unless the articles, the regulations adopted by the shareholders, the regulations adopted by the directors pursuant to division (A)(1) of section 1701.10 of the Revised Code, or the
contract of subscription otherwise provides, "shareholder"
includes a subscriber to shares, whether the subscription is
received by the incorporators or pursuant to authorization by the
directors, and such shares shall be deemed to be outstanding
shares. (G) "Person" includes, without limitation, a natural person,
a
corporation, whether nonprofit or for profit, a partnership, a
limited
liability company, an unincorporated society or
association, and two or more
persons having a joint or
common
interest. (H) The location of the "principal office" of a
corporation
is the place named as the principal office in its articles. (I) The "express terms" of shares of a class are the
statements expressed in the articles with respect to such shares. (J) Shares of a class are "junior" to shares of another
class when any of their dividend or distribution rights are
subordinate to, or dependent or contingent upon, any right of, or
dividend on, or distribution to, shares of such other class. (K) "Treasury shares" means shares belonging to the
corporation and not retired that have been either issued and
thereafter acquired by the corporation or paid as a dividend or
distribution in shares of the corporation on treasury shares of
the same class; such shares shall be deemed to be issued, but
they
shall not be considered as an asset or a liability of the
corporation, or as outstanding for dividend or distribution,
quorum, voting, or other purposes, except, when authorized by the
directors, for dividends or distributions in authorized but
unissued shares of the corporation of the same class. (L) To "retire" a share means to restore it to the status
of
an authorized but unissued share. (M) "Redemption price of shares" means the amount required
by the articles to be paid on redemption of shares. (N) "Liquidation price" means the amount or portion of
assets required by the articles to be distributed to the holders
of shares of any class upon dissolution, liquidation, merger, or
consolidation of the corporation, or upon sale of all or
substantially all of its assets. (O) "Insolvent" means that the corporation is unable to
pay
its obligations as they become due in the usual course of its
affairs. (P) "Parent corporation" or "parent" means a domestic or
foreign corporation that owns and holds of record shares
of
another corporation, domestic or foreign, entitling the holder of
the shares at the time to exercise a majority of the voting power
in the election of the directors of the other corporation without
regard to voting power that may thereafter exist upon a
default,
failure, or other contingency; "subsidiary corporation" or
"subsidiary" means a domestic or foreign corporation of which
another corporation, domestic or foreign, is the parent. (Q) "Combination" means a transaction, other than a merger
or consolidation, wherein either of the following applies: (1) Voting shares of a domestic corporation are issued or
transferred in consideration in whole or in part for the transfer
to itself or to one or more of its subsidiaries, domestic or
foreign, of all or substantially all the assets of one or more
corporations, domestic or foreign, with or without good will or
the assumption of liabilities; (2) Voting shares of a foreign parent corporation are
issued
or transferred in consideration in whole or in part for
the
transfer of such assets to one or more of its domestic
subsidiaries. "Transferee corporation" in a combination means the
corporation, domestic or foreign, to which the assets are
transferred, and "transferor corporation" in a combination means
the corporation, domestic or foreign, transferring such assets
and
to which, or to the shareholders of which, the voting shares
of
the domestic or foreign corporation are issued or transferred. (R) "Majority share acquisition" means the acquisition of
shares of a corporation, domestic or foreign, entitling the
holder
of the shares to exercise a majority of the voting power
in the
election of directors of such corporation without regard
to voting
power that may thereafter exist upon a default,
failure, or other
contingency, by either of the following: (1) A domestic corporation in consideration in whole or in
part, for the issuance or transfer of its voting shares; (2) A domestic or foreign subsidiary in consideration in
whole or in part for the issuance or transfer of voting shares of
its domestic parent. (S) "Acquiring corporation" in a combination means the
domestic corporation whose voting shares are issued or
transferred
by it or its subsidiary or subsidiaries to the
transferor
corporation or corporations or the shareholders of the
transferor
corporation or corporations; and "acquiring
corporation" in a
majority share acquisition means the domestic
corporation whose
voting shares are issued or transferred by it
or its subsidiary in
consideration for shares of a domestic or
foreign corporation
entitling the holder of the shares to
exercise a majority of the
voting power in the election of
directors of such corporation. (T) When used in connection with a combination or a
majority
share acquisition, "voting shares" means shares of a
corporation,
domestic or foreign, entitling the holder of the
shares to vote at
the time in the election of directors of such
corporation without
regard to voting power which may thereafter
exist upon a default,
failure, or other contingency. (U) "An emergency" exists when the governor, or any other
person lawfully exercising the power and discharging the duties
of
the office of governor, proclaims that an attack on the United
States or any nuclear, atomic, or other disaster has caused an
emergency for corporations, and such an emergency shall continue
until terminated by proclamation of the governor or any other
person lawfully exercising the powers and discharging the duties
of the office of governor. (V) "Constituent corporation" means an existing
corporation
merging into or into which is being merged one or
more other
entities in a merger or an existing corporation
being consolidated
with one or more other entities into a new
entity in a
consolidation, whether any of the entities is
domestic or foreign,
and "constituent entity" means any entity merging into or
into
which is being merged one or more other entities in a merger, or
an
existing entity being consolidated with one or more other
entities into a new
entity in a consolidation, whether any of the
entities is
domestic or foreign. (W) "Surviving corporation" means the constituent
domestic
or foreign corporation that is specified as the
corporation into
which one or more other constituent entities
are to be or have
been merged, and "surviving entity" means the constituent
domestic
or foreign entity that is specified as the entity into which one
or
more other constituent entities are to be or have been merged. (X) "Close corporation agreement" means an agreement that
satisfies the three requirements of division (A) of section
1701.591 of the Revised Code. (Y) "Issuing public corporation" means a domestic
corporation with fifty or more shareholders that has its
principal
place of business, its principal executive offices,
assets having
substantial value, or a substantial percentage of
its assets
within this state, and as to which no valid close
corporation
agreement exists under division (H) of section
1701.591 of the
Revised Code. (Z)(1) "Control share acquisition" means the acquisition,
directly or indirectly, by any person of shares of an issuing
public corporation that, when added to all other shares of the
issuing public corporation in respect of which such the person may
exercise or direct the exercise of voting power as provided in
this division, would entitle such the person, immediately after such
the acquisition, directly or indirectly, alone or with others, to
exercise or direct the exercise of the voting power of the
issuing
public corporation in the election of directors within
any of the
following ranges of such voting power: (a) One-fifth or more but less than one-third of such
voting
power; (b) One-third or more but less than a majority of such
voting power; (c) A majority or more of such voting power. A bank, broker, nominee, trustee, or other person who
that acquires shares in the ordinary course of business for the
benefit
of others in good faith and not for the purpose of
circumventing
section 1701.831 of the Revised Code shall,
however, be deemed to
have voting power only of shares in respect
of which such person
would be able, without further instructions
from others, to
exercise or direct the exercise of votes on a
proposed control
share acquisition at a meeting of shareholders
called under
section 1701.831 of the Revised Code. (2) The acquisition by any person of any shares of an
issuing public corporation does not constitute a control share
acquisition for the purpose of section 1701.831 of the Revised
Code if the acquisition was or is consummated in, results from,
or
is the consequence of any of the following circumstances: (a) Prior to November 19, 1982; (b) Pursuant to a contract existing prior to November 19,
1982; (c) By bequest or inheritance, by operation of law upon
the
death of an individual, or by any other transfer without
valuable
consideration, including a gift, that is made in good
faith and
not for the purpose of circumventing section 1701.831
of the
Revised Code; (d) Pursuant to the satisfaction of a pledge or other
security interest created in good faith and not for the purpose
of
circumventing section 1701.831 of the Revised Code; (e) Pursuant to a merger or consolidation adopted, or a
combination or majority share acquisition authorized, by
vote of the shareholders of the issuing public corporation in compliance with section
1701.78, 1701.781, 1701.79, 1701.791, or
1701.83 of the Revised Code, or pursuant to a merger adopted in compliance with section 1701.802 of the Revised Code; (f) The person's being entitled, immediately thereafter,
to
exercise or direct the exercise of voting power of the issuing
public corporation in the election of directors within the same
range theretofore attained by that person either in compliance
with the provisions of section 1701.831 of the Revised Code or as
a result solely of the issuing public corporation's purchase of
shares issued by it. The acquisition by any person of shares of an issuing
public
corporation in a manner described under division (Z)(2) of
this
section shall be deemed a control share acquisition
authorized
pursuant to section 1701.831 of the Revised Code
within the range
of voting power under division (Z)(1)(a), (b),
or (c) of this
section that such person is entitled to exercise
after such
the acquisition, provided, in the case of an acquisition in
a manner
described under division (Z)(2)(c) or (d) of this
section, the
transferor of shares to such person had previously
obtained any
authorization of shareholders required under section
1701.831 of
the Revised Code in connection with such the transferor's
acquisition
of shares of the issuing public corporation. (3) The acquisition of shares of an issuing public
corporation in good faith and not for the purpose of
circumventing
section 1701.831 of the Revised Code from any
person whose control
share acquisition previously had been
authorized by shareholders
in compliance with section 1701.831 of
the Revised Code, or from
any person whose previous acquisition
of shares of an issuing
public corporation would have constituted
a control share
acquisition but for division (Z)(2) or (3) of
this section, does
not constitute a control share acquisition for
the purpose of
section 1701.831 of the Revised Code unless such
acquisition
entitles the person making the acquisition, directly
or
indirectly, alone or with others, to exercise or direct the
exercise of voting power of the corporation in the election of
directors in excess of the range of such voting power authorized
pursuant to section 1701.831 of the Revised Code, or deemed to be
so authorized under division (Z)(2) of this section. (AA) "Acquiring person" means any person who has delivered
an acquiring person statement to an issuing public corporation
pursuant to section 1701.831 of the Revised Code. (BB) "Acquiring person statement" means a written
statement
that complies with division (B) of section 1701.831 of
the Revised
Code. (CC)(1) "Interested shares" means the shares of an issuing
public corporation in respect of which any of the following
persons may exercise or direct the exercise of the voting power
of
the corporation in the election of directors: (a) An acquiring person; (b) Any officer of the issuing public corporation elected
or
appointed by the directors of the issuing public corporation; (c) Any employee of the issuing public corporation who is
also a director of such corporation; (d) Any person that acquires such shares for valuable
consideration
during the period beginning with the date of the
first public disclosure of a proposal for, or expression of interest in, a control share acquisition
of
the issuing public corporation; a transaction pursuant to section 1701.76, 1701.78, 1701.781, 1701.79, 1701.791, 1701.83, or 1701.86 of the Revised Code that involves the issuing public corporation or its assets; or any action that would directly or indirectly result in a change in control of the issuing public corporation or its assets, and ending on the record date
established by the directors
pursuant to section 1701.45 and division
(D) of section 1701.831
of the Revised Code, if either of the following
applies: (i) The aggregate consideration paid or given by the
person
who acquired the shares, and any other persons acting in
concert
with the person, for all such shares exceeds two
hundred fifty
thousand dollars; (ii) The number of shares acquired by the person who
acquired the shares, and any other persons acting in concert with
the person, exceeds one-half of one per cent of the
outstanding
shares
of the corporation entitled to vote in the election of
directors. (e) Any person that transfers such shares for valuable
consideration after the record date described in division
(CC)(1)(d) of this section as to shares so
transferred, if
accompanied by the voting power in the form of a blank proxy,
an
agreement to vote as instructed by the transferee, or otherwise. (2) If any part of this division is held to be illegal or
invalid in application, the illegality or invalidity does not
affect any legal and valid application thereof or any other
provision or application of this division or section 1701.831 of
the Revised Code that can be given effect without the
invalid or
illegal provision, and the parts and applications of this
division
are severable. (DD) "Certificated security" and "uncertificated security"
have the same meanings as in section 1308.01 of the Revised Code. (EE) "Entity" means any of the following: (1) A for profit corporation existing under the laws of this
state or any
other state; (2) Any of the following organizations existing under the
laws of this state,
the United States, or any other state: (a) A business trust or association; (b) A real estate investment trust; (c) A common law trust; (d) An unincorporated business or for profit organization,
including a
general or limited partnership; (e) A limited liability company; (f) A nonprofit corporation.
Sec. 1701.10. (A) After incorporation, all of the following
apply: (1) If the initial directors are named in the articles,
the initial directors shall hold an organizational meeting, at
the call of a majority of the directors, to complete the
organization of the corporation by receiving subscriptions,
appointing officers, adopting regulations, and carrying on any
other business brought before the meeting. (2) If the initial directors are not named in the articles,
the incorporator or incorporators either shall receive
subscriptions as provided in division
(A) of section 1701.09 of the Revised
Code or shall hold an organizational
meeting at the call of a majority of the incorporators to elect
directors who shall complete the organization of the corporation
as provided in division (A)(1)
of this section. If subscriptions for shares are received by
the incorporators, the incorporators, or a majority of them,
shall give not less than seven days' written notice to the
shareholders, unless written notice is waived by the
shareholders, to meet at a specified time and place for the
purposes of adopting regulations, electing directors, and
transacting any other business. The shareholders shall meet for
those purposes at the time and place specified. (3) Notwithstanding divisions (A)(1) and (2) of this section,
if regulations have not been adopted within ninety days after
the formation of the corporation, regulations may be adopted
only by the shareholders in either of the following ways: (a) At a meeting of shareholders
called for that purpose by the directors or, if no directors
have been named in the articles or elected, at a meeting of
shareholders called for that purpose by at least a majority of
the incorporators. The directors or incorporators shall give
not less than seven days' written notice to the shareholders,
unless written notice is waived by the shareholders, to meet at
a specified time and place for the purposes of adopting
regulations and transacting any other business;
(b) Without a meeting, by the
written consent of the holders of shares entitling them to
exercise two-thirds of the voting power on the proposal.
(4) In no event may the directors take any action to
adopt or amend regulations after the shareholders have adopted
regulations as provided in section 1701.11 of the Revised Code.
(B) Action required or
permitted by this chapter to be taken by the incorporators at an
organizational meeting may be taken without a meeting if the
action taken is evidenced by one or more written consents
describing the action taken and signed by each
incorporator. (C) An organizational
meeting may be held in or out of this state.
Sec. 1701.11. (A)(1) Regulations for the government of a
corporation, the conduct of its affairs, and the management of
its
property, consistent with law and the articles, may be
adopted, amended, or repealed in
any of the following ways: (a) Within ninety days after the corporation is formed, by
the
directors in accordance with division (A)(1) of section 1701.10 of the Revised
Code; (b) By the shareholders at a meeting held for that purpose,
by the affirmative vote of the holders of shares entitling them
to
exercise a majority of the voting power of the corporation on
the
proposal, or if the articles or regulations that have been adopted so provide, by the affirmative vote of the holders entitling them to exercise a greater proportion than a majority of the voting power of the corporation on the proposal; (c) Without a meeting, by the written
consent of the holders
of shares entitling them to exercise two-thirds of the
voting
power of the corporation on the proposal. (2)
Except as otherwise provided in division (A)(4) of
this
section, the regulations may be amended, or new regulations
may be
adopted, in
either of the following ways:
(a) By the shareholders at a
meeting held for that purpose,
by the affirmative vote of the
holders of shares entitling them to
exercise a majority of the
voting power of the corporation on the
proposal;
(b) Without a meeting, by the
written consent of the holders
of shares entitling them to
exercise two-thirds of the voting
power of the corporation on the
proposal.
(3)
Except as otherwise provided in division (A)(4) of
this
section, or if the articles or
regulations that have been
adopted so
provide or permit,
regulations may be adopted or
amended or new
regulations may be adopted
by the affirmative vote
or written
consent of the holders of shares entitling
them to
exercise a
greater or lesser proportion but not less than a
majority
of the
voting power of the corporation on the proposal;
(d) If and to the extent that the articles or regulations so provide or permit and unless a provision of the Revised Code reserves such authority to shareholders, by the directors, provided that no provision or permission in the articles or regulations may divest shareholders of the power, or limit the shareholders' power, to adopt, amend, or repeal regulations.
(4)(2) Any amendment of regulations and any amended or new
regulations adopted by shareholders of an issuing public
corporation whose directors are classified pursuant to section
1701.57 of the Revised Code that would change or eliminate the
classification of directors shall be adopted only by the shareholders
only at a meeting held for that purpose, by the affirmative vote
of holders of shares entitling them to exercise the voting power
of the corporation that is required for shareholders at a meeting
under division (A)(2)(a) or (3)(A)(1)(b) of this section, and also by the
affirmative vote of the holders of a majority of disinterested
shares voted on the proposal determined as specified in division
(C)(9) of section 1704.01 of the Revised Code.
(B) Without limiting the generality of the authority
described in division (A) of this section, the regulations may
include provisions with respect to all of the following: (1) The
place, if any, and time for holding, the
manner of
and
authority for calling, giving notice of, and
conducting, and
the
requirements of a quorum for, meetings of
shareholders; (2) The taking of a record of shareholders or the
temporary
closing of books against transfers of shares; (3) The number, classification, manner of fixing or
changing
the number, qualifications, term of office, and
compensation or
manner of fixing compensation, of directors; (4) The
place, if any, and time for holding, the
manner of
and
authority for calling, giving notice of, and
conducting, and
the
requirements of a quorum for, meetings of the
directors; (5) The appointment of an executive and other committees
of
the directors, and their authority; (6) The titles, qualifications, duties, term of office,
compensation or manner of fixing compensation, and the removal,
of
officers; (7) The terms on which new certificates for shares may be
issued in the place of lost, stolen, or destroyed certificates; (8) The manner in which and conditions upon which a
certificated security, and the conditions upon which an
uncertificated security, and the shares represented by a
certificated or uncertificated security, may be transferred,
restrictions on the right to transfer the shares, and
reservations
of liens on the shares; (9)(a) Restrictions on the transfer and the right to
transfer shares of either of the following: (i) An issuing public corporation to any person in a
control
share acquisition; (ii) A corporation with fifty or more shareholders to any
person in an acquisition that would be a control share
acquisition
if the corporation were an issuing public
corporation. (b) The restrictions on the transfer and the right to
transfer shares described in division (B)(9)(a)(i) and (ii) of
this section may include requirements and procedures for consent
to an acquisition of the shares by directors based on a
determination by
the directors of the best interests of the
corporation and its
shareholders, consent to an acquisition of the
shares by
shareholders, and
reasonable sanctions for a violation
of those requirements,
including the right of the corporation to
refuse to transfer, to
redeem, or to deny voting or other
shareholder rights appurtenant
to shares acquired in an
acquisition of the shares. (10) Defining, limiting, or regulating the exercise of the
authority of the corporation, the directors, or the officers, or all
the shareholders; (11) Defining, limiting, or regulating the exercise of the authority of the shareholders; provided, that any amendment of the regulations that would change or eliminate any such provision shall be adopted only by the shareholders. (C) The shareholders of a corporation may adopt and may
authorize the directors to adopt, either before or during an
emergency, as that term is defined in division (U) of section
1701.01 of the Revised Code, emergency regulations that
shall be
operative only during an emergency. The emergency regulations
may
include any provisions that are
authorized to be included in
regulations by divisions (A) and (B) of this section. In
addition, unless expressly prohibited by the articles or the
regulations, the emergency regulations may make any provision,
notwithstanding any different provisions in this chapter and
notwithstanding any
different
provisions in the articles or the
regulations that are not
expressly stated to be operative during
an emergency, that may be
practical or necessary with respect to
the following: (1) The
place, if any, and time for holding, the
manner of
and
authority for calling, giving notice of, and
conducting, and
the
requirements of a quorum for, meetings of the
directors; (2) The creation and appointment of an executive and other
committees of the directors and the delegation of authority to
the
committees by the board; (3) The creation, existence, and filling of vacancies,
including temporary vacancies, in the office of director; (4) The selection, by appointment, election, or otherwise,
of officers and other persons to serve as directors for a meeting
of the board in the absence from the meeting of one or more of
the
directors; (5) The creation, existence, and filling of vacancies,
including temporary vacancies, in any office; (6) The order of rank and the succession to the duties and
authority of officers. (D) If (1) Unless the corporation complies with division (D)(2) of this section, if the regulations are amended or new regulations are
adopted, without a meeting of the shareholders other than by the shareholders at a meeting held for that purpose, the secretary of
the corporation shall
send a copy of the amendment or the new
regulations
by mail, overnight delivery service, or any other
means of communication authorized by the shareholder to whom a
copy of the amendment or new regulations are is sent, to each
shareholder who would have been entitled to
vote on the adoption
of the amendment or the new regulations and
did not participate in
of record as of the date of the adoption of the amendment or the new
regulations.
(2) Any corporation that files periodic reports with the United States securities and exchange commission pursuant to section 13 of the "Securities Exchange Act of 1934," 48 Stat. 881, 15 U.S.C. 78m, as amended, or section 15(d) of the "Securities Exchange Act of 1934," 48 Stat. 881, 15 U.S.C. 78o(d), as amended, may satisfy the notice to shareholders of record requirement of division (D)(1) of this section by including a copy of the amendment or the new regulations in a report filed in accordance with those sections within twenty days after the adoption of the amendment or the new regulations. (E) No person dealing with the corporation shall be
charged
with constructive notice of the regulations. (F) Unless expressly prohibited by the articles or the
regulations or unless otherwise provided by the emergency
regulations, the following special rules shall be applicable
during an emergency notwithstanding any different provision
elsewhere in this
chapter: (1) Meetings of the directors may be called by any officer
or director. (2) Notice of the time and place of each meeting of the
directors shall be given to such of the directors as it may be
feasible to reach at the time and by the means of
communication,
written or oral, personal or mass, as may be practicable at the
time. (3) The director or directors present at any meeting of
the
directors that has been duly called and notice of which has
been
duly given shall constitute a quorum for the meeting, and,
in the
absence of one or more of the directors, the director or
directors
present may appoint one or more of the officers of the
corporation
directors for the meeting. (4) If none of the directors attends a meeting of the
directors that has been duly called and notice of which has been
duly given, the officers of the corporation who are present, not
exceeding three, in order of rank, shall be directors for the
meeting, shall constitute a quorum for the meeting, and may
appoint one or more of the other officers of the corporation
directors for the meeting. (5) If the chief executive officer dies, is missing, or
for
any other reason is temporarily or permanently incapable of
discharging the duties of the office, the next ranking
officer
who
is available shall assume the duties and authority of the
office
of the deceased, missing, or incapacitated chief executive
officer
until such time as the directors shall otherwise order. (6) The offices of secretary and treasurer shall be deemed
to be of equal rank, and, within the same office and as between
the offices of secretary and treasurer, rank shall be determined
by priority in time of the first election to the office or, if
two
or more persons have been first elected to the office
at the same
time, by seniority in age.
Sec. 1701.17. (A) A corporation by its directors, upon such terms as it may
impose, may provide and carry out plans for the issuance, offering, or sale, or for the grant
of options, to employees of the corporation or of subsidiary corporations, or
to a trustee on their behalf, during the period of their employment or other
period, of, or with respect to, any unissued shares, treasury shares, or
shares to be purchased, which plans may provide for the payment for such
shares at one time or in installments, or for the establishment of special
funds in which employees may participate. Shares otherwise subject to
pre-emptive rights may be offered or sold under such these plans only when released
from pre-emptive rights. (B)(1) The directors, or a committee of the directors, may delegate the authority described in division (A) of this section to one or more officers if the resolution authorizing the delegation specifies the total number of shares or options that the officer or officers may award and the terms on which any shares may be issued, offered, or sold or the terms of any options.
(2) The directors may not authorize any officer described in division (B)(1) of this section to designate that officer as a recipient of any shares or options with respect to shares.
Sec. 1701.18. (A) Except as provided in the case of
change of shares, share dividends or distributions,
reorganization, merger, consolidation, combination, or conversion
of shares or obligations into shares, the following apply: (1) Payment Consideration for shares shall be made with money or other
property of any description, or any interest in
property, actually
transferred to the corporation, or labor or services actually
rendered to the corporation may include cash, property, services rendered, a promissory note, or any other binding obligation to contribute cash or property or to perform services; the provision of any other benefit to the corporation; or any combination of these. (2) In the case of shares with par value, other than
treasury shares, the consideration shall be not less than
the
par value of the shares, provided that the shares may be
sold and
paid for at such a discount from the par value of the shares
that would amount to or not exceed reasonable compensation
for the
sale, underwriting, or purchase of the shares, and,
regardless of
the discount, the shares shall be
deemed to be fully paid. (3) In the case of treasury shares with par value, the
consideration may be less than the par value of the shares. (B) Promissory notes, drafts, or other obligations of a
subscriber or purchaser do not constitute payment for shares. (C) An agreement by a person to perform services as the
consideration for shares does not, of itself, constitute
the person a shareholder and does not, of itself,
constitute payment for such shares prior to the
performance of the services. (D) Except in the case of convertible shares or
obligations, shares with par value shall not be issued or
disposed of upon change of shares, share dividends or
distributions, reorganization, merger, consolidation, exchange of
shares for other shares or securities, or otherwise, if as a
result the aggregate liabilities of the corporation
plus
its stated capital would exceed its aggregate assets or any
existing excess would be increased. (E) When shares have been issued as provided in this chapter, in the
case of
change of
shares, share dividends or distributions, reorganization, merger,
consolidation, or conversion of shares or obligations into
shares, or when shares have been paid for in conformity with this
section, such shares shall be deemed fully paid and
nonassessable. (F) Every person who subscribes for or purchases shares of
a corporation is liable to the corporation to pay or deliver to
the corporation the consideration agreed upon, and, except as
provided in division (A) of this section, if the shares are
with par value, the person is obligated to pay to the
corporation
for the shares in money or other property or services
consideration not less than the full par
value of the shares. The person is not liable to the corporation or its
creditors in any other amount. (G) Every holder, whether the original or a transferee, of
shares not paid for as provided in this section, who has acquired
them with actual knowledge of that fact, is personally liable to
the corporation for the amount unpaid on the shares, and the
holder's
liability shall continue notwithstanding any transfer of
the
shares, until the shares are paid in full; but no holder
who has
acquired the shares without actual knowledge of the fact
that
the shares are not paid for is under any liability in respect of
the shares. (H) No pledgee or other holder of shares as collateral
security is personally liable as a shareholder. (I) No person who in fact, whether disclosed on the
records of the corporation or otherwise, holds shares as
executor, administrator, guardian, trustee, trustee of a voting
trust, receiver, or in any other fiduciary capacity is personally
liable as a shareholder, but the estate or property in the hands
of such fiduciary is liable or the real or beneficial owner is
liable under this section as equity may require. This section
does not relieve a fiduciary from liability for a breach of
trust. (J) Except as set forth in any provision in Title
LVII of the Revised Code, neither a shareholder of a corporation nor a
subscriber to its shares is personally liable for any debts,
obligations, or liabilities of the corporation in the absence of
a written, enforceable agreement that is signed by the shareholder or
subscriber and that specifically undertakes liability for such debts,
obligations, or liabilities.
Sec. 1701.19. (A) When a determination of the fair value
to a corporation of property other than money or of services is
made by the incorporators, directors, or shareholders with
respect to property transferred or to be transferred, or services
rendered or to be rendered, consideration, other than cash, paid or to be paid to the corporation as consideration
for shares; or made by the directors with respect to property
voluntarily contributed to the corporation; or made by the
directors with respect to physical assets of the corporation
which that are reckoned by the directors to have a fair value to the
corporation in excess of the amount at which they are carried on
its books; or provided for in a plan of reorganization confirmed
decree or order as provided in section 1701.75 of the Revised Code or set forth
in an agreement of merger or consolidation adopted as provided in
section 1701.78, 1701.79, 1701.80, or 1701.801 of the Revised
Code, then such the determination shall be conclusive in any action
or proceeding in which it is claimed that the fair value to the
corporation of such consideration or property or of such services is or was less
than the value so determined, unless the party asserting such
a claim affirmatively proves by clear and convincing evidence, and
otherwise than by proving the difference between the value of
such consideration or property, or of such services, and the fair value so
determined, that such the determination was knowingly and
intentionally made, by the persons making the determination, at a
value greater than the fair value of such consideration or property or of such
services to the corporation. (B) The making of an agreement to issue or dispose of
shares for property or consideration other than money or for services cash or the
issuance or disposition of shares in consummation of any
agreement or transaction referred to in division (A) of this
section shall be held to be a determination that the property or
the services other consideration involved have has a fair value to the corporation not
less than the value required to justify the issuance or
disposition of such shares.
Sec. 1701.40. (A) Meetings of shareholders may be called
by
any of the following: (1) The
chairperson of the board, the president,
or,
in
case
of the president's absence, death, or disability, the
vice-president authorized to exercise the authority of the
president; (2) The directors by action at a meeting, or a majority of
the directors acting without a meeting; (3) Persons who hold twenty-five per cent of all shares
outstanding and entitled to vote
at the meeting, unless
the
articles or,
the regulations adopted by the shareholders, or the regulations adopted by the directors pursuant to division (A)(1) of section 1701.10 of the Revised Code specify for
that purpose a
smaller or
larger
proportion but not in excess of fifty per cent; (4) Such other officers or persons as the articles or the
regulations authorize to call
the meetings. (B) Meetings of shareholders may be held either within or
without this state if so provided in the articles or the
regulations.
The articles or regulations may authorize the
directors to determine that the meeting shall not be held at any
physical place, but instead may be held solely by means of
communications equipment as authorized by division (C) of this
section. If the corporation is an issuing public corporation and
the articles or regulations do not require that a meeting be held
at a particular physical place and also authorize the directors to fix
the place of the meeting, the directors may determine that the
meeting shall not be held at any physical place, but instead may
be held solely by means of communications equipment as authorized
by division (C) of this section. In the absence of any such
provision, all meetings
shall be held at the principal office of
the corporation in this
state.
(C) If authorized by the directors, the shareholders and
proxyholders who are not physically present at a meeting of
shareholders may attend a meeting of shareholders by use of
communications equipment that enables the shareholder or
proxyholder an opportunity to participate in the meeting and to
vote on matters submitted to the shareholders, including an
opportunity to read or hear the proceedings of the meeting and to
speak or otherwise participate in the proceedings
contemporaneously with those physically present. Any shareholder
using communications equipment will be deemed present in person at
the meeting whether the meeting is to be held at a designated
place or solely by means of communications equipment. The
directors may adopt guidelines and procedures for the use of
communications equipment in connection with a meeting of
shareholders to permit the corporation to verify that a person is
a shareholder or proxyholder and to maintain a record of any vote
or other action.
Sec. 1701.41. (A) Written notice stating the time, place,
if any, and purposes of a
meeting of the shareholders, and the
means, if any, by which shareholders can be present and vote at
the meeting through the use of communications equipment shall be
given either by personal delivery or by
mail, overnight delivery
service, or any other means of communication authorized by the
shareholder to whom the notice is given, not less than seven nor
more than sixty days before the date of the
meeting unless the
articles or, the regulations adopted by the shareholders, or the regulations adopted by the directors pursuant to division (A)(1) of section 1701.10 of the Revised Code specify a longer period: (1)
to
every shareholder of record entitled to notice of the meeting; (2)
by or at
the direction of the president or the secretary or any
other person required
or permitted by the regulations to give
that notice. If mailed
or sent by overnight delivery service,
the notice
shall be
sent to the shareholder at
the shareholder's
address as it appears on the
records of the
corporation.
If sent
by another means of communication authorized
by the shareholder,
the notice shall be sent to the address
furnished by the
shareholder for those transmissions. Notice of
adjournment of a
meeting need not be
given if the time and place,
if any, to which
it is adjourned
and the means, if any, by which
shareholders can
be present and vote at the adjourned meeting
through the use of
communications equipment are fixed and
announced
at
the meeting. (B) Upon request in writing delivered either in person or by
registered mail
to the president or the secretary by any persons
entitled to call a meeting of
shareholders,
that officer
shall
forthwith cause to be given to the
shareholders entitled
to
notice of a meeting to be held on a date not
less than
seven nor
more than sixty days after the receipt of
the
request, as
the
officer may fix, unless the articles or,
the
regulations adopted by the shareholders, or the regulations adopted by the directors pursuant to division (A)(1) of section 1701.10 of the Revised Code specify a
longer
period for
this purpose. If
the notice is not given
within fifteen days
after the
delivery or mailing of
the request,
or
that shorter or
longer
period as the articles or, the
regulations adopted by the shareholders, or the regulations adopted by the directors pursuant to division (A)(1) of section 1701.10 of the Revised Code specify for
this purpose, the
persons calling the
meeting may fix the time of
meeting and give notice
of the time
of meeting as provided
in division (A) of this section, or cause
the notice to
be
given by any designated representative.
(C) Any authorization by a shareholder to send notices given
pursuant to this chapter by any means other than in person or by
mail or overnight delivery service is revocable by written notice
to the corporation either by personal delivery or by mail,
overnight delivery service, or any other means of communication
authorized by the corporation. If sent by another means of
communication authorized by the corporation, the notice shall be
sent to the address furnished by the corporation for those
transmissions. Any authorization by a shareholder to send notices
given pursuant to this chapter by any means other than in person
or by mail or overnight delivery service will be deemed to have
been revoked by the shareholder if (1) the corporation has
attempted to make delivery of two consecutive notices in
accordance with that authorization, and (2) the secretary or an
assistant secretary of the corporation, or other person
responsible for giving of notice, has received notice that, or
otherwise believes that, delivery has not occurred. However, an
inadvertent failure to treat the inability to deliver notice as a
revocation will not invalidate any meeting of shareholders or
other action.
Sec. 1701.44. (A) Except to the extent that the voting rights of the shares
of any class are increased, limited, or denied by the express terms of such
shares, and except as provided in scrip issued in lieu of a certificate for a
fraction of a share, each outstanding share regardless of class shall entitle
the holder thereof to one vote on each matter properly submitted to the
shareholders for their vote, consent, waiver, release, or other action,
subject to the provisions with respect to cumulative voting in section 1701.55
of the Revised Code. (B) Unless the articles, the regulations adopted by the shareholders, the regulations adopted by the directors pursuant to division (A)(1) of section 1701.10 of the Revised Code, or the contract of subscription for
shares otherwise provides, a shareholder shall be entitled to vote even though
his the shareholder's shares have not been fully paid, but
shares upon which an installment of
the consideration for such shares is overdue and unpaid shall not be voted.
Sec. 1701.51. (A) Unless the articles or, the regulations
adopted by the shareholders, or the regulations adopted by the directors pursuant to division (A)(1) of section 1701.10 of the Revised Code otherwise provide: (A) The, the shareholders present in person, by proxy, or by
the
use of communications equipment at any meeting of
shareholders
shall constitute a quorum for such meeting, but no action
required
by law, the articles, or the regulations to be authorized or taken
by
the holders of a designated proportion of the shares of any
particular class
or of each class, may be authorized or taken by a
lesser proportion.
(B) The Unless the articles or the regulations otherwise provide, the holders of a majority of the voting shares
represented at a meeting,
whether or not a quorum is present, may
adjourn such meeting from time to
time.
Sec. 1701.54. (A) Unless the articles or, the regulations
adopted by the shareholders, or the regulations adopted by the directors pursuant to division (A)(1) of section 1701.10 of the Revised Code prohibit the
authorization or taking of any action of the
shareholders or of the directors
without a meeting, any action
that may be authorized or taken at a meeting of
the
shareholders
or of the directors, as the case may be, may be
authorized or
taken without a meeting with the affirmative vote or
approval of,
and in a
writing or writings signed by all the
shareholders who
would be entitled to
notice of a meeting of the
shareholders held
for such purpose, or all the
directors,
respectively, which
writing or writings shall be filed with or
entered upon the
records of the corporation. Any certificate with
respect to
the
authorization or taking of any such action
that is required to be
filed
in the office of the secretary of
state shall recite that
the authorization or
taking of such action
was in a writing or
writings approved and signed as
specified in
this section.
(B) A telegram, cablegram, electronic mail, or an electronic
or other transmission capable of authentication that appears to
have been sent by a person described in division (A) of this
section and that contains an affirmative vote or approval of that
person is a signed writing for the purposes of this section. The
date on which that telegram, cablegram, electronic mail, or
electronic or other transmission is sent is the date on which the
writing is signed.
Sec. 1701.57. (A) Unless the articles or, the regulations adopted by the shareholders, or the regulations adopted by the directors pursuant to division (A)(1) of section 1701.10 of the Revised Code provide for a
different term (which may not exceed three years from the date of his
election
and until his a successor is elected), each director shall hold
office until the
next annual meeting of the shareholders and until his a
successor is elected,
or until his the director's earlier resignation, removal from
office, or death. (B) The articles or, the regulations adopted by the shareholders, or the regulations adopted by the directors pursuant to division (A)(1) of section 1701.10 of the Revised Code may provide: (1) For the classification of directors into either two or three classes
consisting of not less than three directors each, provided that where all
shares of a corporation entitled to elect a class of directors are owned of
record by one or two shareholders, the number of directors of each class may
be less than three, but not less than the number of shareholders entitled to
elect directors of such class; (2) That the terms of office of the several classes need not be uniform,
except that no term shall exceed the maximum period specified in division (A)
of this section.
Sec. 1701.58. (A) The office of a director becomes vacant
if
the director dies or resigns. A resignation shall take
effect
immediately or at such other time as the director may
specify. (B) The directors may remove any director and thereby
create
a vacancy in the board: (1) If by order of court
the director has been found to
be
of
unsound mind, or if
the director is adjudicated a
bankrupt; (2) If within sixty days, or within such any other period of
time as is prescribed in the articles or the regulations, from
the
date of
the director's election
the
director does not
qualify by
accepting in
writing
the director's election to
such that office or by
acting
at a meeting of
the directors, and by
acquiring the
qualifications specified in
the articles or the
regulations; or
if, for such period as is
prescribed in the
articles or the
regulations,
the director
ceases to hold
the
required
qualifications. (C)
Except as otherwise provided in this division, if the
shareholders have a right to vote cumulatively
in the election of
directors, then, unless the articles or, the
regulations adopted by the shareholders, or the regulations adopted by the directors pursuant to division (A)(1) of section 1701.10 of the Revised Code expressly
provide that no director may be removed
from office or that
removal of directors requires a greater vote
than that specified
in this division, all the directors, all the
directors of a
particular class, or any individual director may
be removed from
office, without assigning any cause, by the vote
of the holders of
a majority of the voting power entitling them
to elect directors
in place of those to be removed, except that,
unless all the
directors, or all the directors of a particular
class, are
removed, no individual director shall be removed if
the votes of a
sufficient number of shares are cast against
the
director's
removal that, if cumulatively voted at an election of all the
directors, or all the directors of a particular class, as the
case
may be, would be sufficient to elect at least one director.
In the
case of an issuing public corporation whose directors are
classified pursuant to section 1701.57 of the Revised Code, the
shareholders may effect a removal under this division only for
cause. (D) If the shareholders do not have the right to vote
cumulatively as a result of an amendment to the articles
permitted
by division (B)(10) of section 1701.69 of the Revised
Code, then,
unless the articles or, the regulations adopted by the shareholders, or the regulations adopted by the directors pursuant to division (A)(1) of section 1701.10 of the Revised Code expressly
provide that no
director may be removed from office or that
removal of directors
requires a greater vote than that specified
in this division, all
the directors, all the directors of a
particular class, or any
individual director may be removed from
office, without assigning
any cause, by the vote of the holders
of a majority of the voting
power entitling them to elect
directors in place of those to be
removed; except that in the case of an issuing public corporation
whose directors are classified pursuant to section 1701.57 of the
Revised Code, the shareholders may effect that removal only for
cause. (E) In case of any removal pursuant to division (C) or (D)
of this section, a new director may be elected at the same
meeting
for the unexpired term of each director removed. Failure
to elect
a director to fill the unexpired term of any director
removed is
deemed to create a vacancy in the board. (F) Unless the articles or the regulations otherwise
provide, the remaining directors, though less than a majority of
the whole authorized number of directors, may, by the vote of a
majority of their number, fill any vacancy in the board for the
unexpired term. Under this section, a vacancy exists if the
shareholders increase the authorized number of directors but fail
at the meeting at which such increase is authorized, or an
adjournment of that meeting, to elect the additional directors
provided for, or if the shareholders fail at any time to elect
the
whole authorized number of directors.
Sec. 1701.62. Unless the articles or, the regulations adopted by the shareholders, or the regulations adopted by the directors pursuant to division (A)(1) of section 1701.10 of the Revised Code otherwise provide, and
subject to the exceptions, applicable during an emergency, as that term is
defined in section 1701.01 of the Revised Code, for which provision is made in
division (F) of section 1701.11 of the Revised Code, a majority of the whole
authorized number of directors is necessary to constitute a quorum for a
meeting of the directors, except that a majority of the directors in office
constitutes a quorum for filling a vacancy in the board. The act of a
majority of the directors present at a meeting at which a quorum is present is
the act of the board, unless the act of a greater number is required by the
articles, the regulations adopted by the shareholders, the regulations adopted by the directors pursuant to division (A)(1) of section 1701.10 of the Revised Code, or the bylaws.
Sec. 1701.63. (A) The regulations may provide for the
creation by the directors of an executive committee or any other
committee of the directors, to consist of one or
more directors, and may authorize the delegation to any such committee
of any of the authority of the directors, however conferred,
other than the authority of filling vacancies among the directors
or in any committee of the directors and other than the authority to adopt, amend, or repeal regulations. (B) The directors may appoint one or more directors as
alternate members of any committee described in division
(A) of this section, who may take the place
of any absent member or members at any meeting of the particular
committee. (C) Each committee described in division (A) of this
section shall serve at the pleasure of the
directors, shall act only in the intervals between meetings of
the directors, and shall be subject to the control and direction
of the directors. (D) Unless otherwise provided in the regulations or
ordered by the directors, any committee described in division
(A) of this section may act by a
majority of its members at a meeting or by a writing or writings
signed by all of its members. (E) Unless participation by members of any committee
described in division (A) of this section
at a meeting by means of communications equipment is prohibited
by the articles, the regulations, or an order of the directors,
meetings of the particular committee may be held through any
communications equipment if all persons participating can hear
each other. Participation in a meeting pursuant to this division
constitutes presence at the meeting. (F) An act or authorization of an act by any
committee described in division (A) of this section within the
authority delegated to it shall be as
effective for all purposes as the act or authorization of the
directors. (G) Unless otherwise provided in the articles, the regulations, or the resolution of the directors creating a committee described in division (A) of this section, a committee described in division (A) of this section may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and may delegate to a subcommittee any or all of the powers and authority of the committee.
Sec. 1701.73. (A)(1) Upon the adoption of any amendment or
amended articles, a certificate containing a copy of the
resolution adopting the amendment or amended articles, a
statement
of the manner of its adoption, and, in the case of
adoption of the
resolution by the incorporators or directors, a
statement of the
basis for such adoption, shall be filed with the
secretary of
state, and thereupon the articles shall be amended
accordingly,
any change of shares provided for in the amendment
or amended
articles shall become effective, and the amended
articles shall
supersede the existing articles.
When (2) Except as provided in division (A)(3) of this section, when an amendment or amended
articles are adopted by the directors pursuant to section 1701.70
of the Revised Code, the corporation shall send notice of
the
amendment or amended articles, and a copy or summary thereof,
by
mail,
overnight delivery service, or any other means of
communication
authorized by the shareholder to whom the notice and
copy or
summary are sent, to each shareholder of the corporation
of record as of the date on
which the directors approved the
amendment or amended articles.
The notice shall be sent to the
shareholders within twenty days
after the filing of the
certificate required by this division (A)(1) of this section. (3) Any corporation that files periodic reports with the United States securities and exchange commission pursuant to section 13 of the "Securities Exchange Act of 1934," 48 Stat. 881, 15 U.S.C. 78m, as amended, or section 15(d) of the "Securities Exchange Act of 1934," 48 Stat. 881, 15 U.S.C. 78o(d), as amended, may satisfy the notice to shareholders of record requirement of division (A)(2) of this section by including a copy or summary of the amendment or amended articles in a report filed in accordance with those provisions within twenty days after the filing of the certificate required by division (A)(1) of this section. (B) When an amendment or amended articles are adopted by
the
incorporators, the certificate described in division (A)(1) of this section shall be signed by each of
them. (C) When an amendment or amended articles are adopted by
the
directors or by the shareholders, the certificate described in division (A)(1) of this section shall be
signed
by
any authorized officer. (D) A copy of an amendment or amended articles changing
the
name of a corporation or its principal office in this state,
certified by the secretary of state, may be filed for record in
the office of the county recorder of any county in this state,
and
for such recording, the county recorder shall charge and
collect
the same fee as provided for in division (A) of section
317.32 of
the Revised Code. Such The copy shall be recorded in the
records of
deeds.
Sec. 1701.75. (A) A corporation, If an order of relief has been entered pursuant to the federal Bankruptcy Code, 11 U.S.C. 101, as amended, or if a plan of reorganization of which shall
have has been confirmed by the decree or order of a court of competent
jurisdiction pursuant to the provisions of any other applicable statute of the
United States relating to reorganization of corporations, a corporation may put into effect
and carry out the plan and the any decrees and orders of the court relative
thereto, in the bankruptcy or reorganization proceeding and may take any proceeding and do any act corporate action provided in the plan or
directed by such decrees and orders, without further action by its directors
or shareholders. Such authority Authority may be exercised, and such proceedings and
acts corporate actions may be taken or done, as directed by such decrees or orders, by the
trustee or trustees of such the corporation appointed or elected in the bankruptcy or reorganization
proceedings (or a majority thereof), or if none shall have been appointed or elected and acting, by
designated officers of the corporation, or by a master or other representative
appointed by the court, with like effect as if exercised and taken by
unanimous action of the directors and shareholders of the corporation. (B) A corporation, If authorized in the manner provided in division (A) of this section,
but without limiting the generality thereof, a corporation may: amend its articles in any
respect; amend or repeal its regulations or adopt new regulations; name,
constitute, reconstitute, classify, or reclassify its directors and appoint
directors and officers in place of or in addition to some or all of the
directors or officers then in office; make any lawful change in its stated
capital; make a determination of the fair value to the corporation of its
assets; transfer all or a part of its assets; merge; consolidate; remove or
appoint a statutory agent; authorize the granting of option rights in respect
of shares and other securities; authorize the issuing of notes, bonds, and
other evidences of indebtedness, whether or not convertible into shares or
other securities; lease its property to any corporation; dissolve; or effect
any other change authorized by this chapter. (C) If a plan of reorganization provides for or effects an amendment to the
articles is adopted or the merger, consolidation, or dissolution of a corporation is authorized in the manner provided in division (A)(1) of this section, or if
a plan decree or order having such a result is modified in respect of such an amendment, merger,
consolidation, or dissolution, then a certificate of reorganization or an amended
certificate of
reorganization, as the case may be, setting forth such portions of the plan
of reorganization decree or order or modification thereof as would otherwise be required to be
set forth in a certificate of amendment, an agreement of merger or
consolidation, or a certificate of dissolution (and, if desired, any other
portions thereof) shall be filed in the office of the secretary of state and
shall operate to effect such the amendment, merger, consolidation, or dissolution.
Such The certificate shall be made, subscribed, and filed as may be directed by
such the decrees or orders, or, in the absence of such direction, by the
president or a vice-president and the secretary or an assistant secretary.
The certificate shall contain a statement that the plan of reorganization provision for making the certificate has
been confirmed authorized by the decree or order of the court designated in the
certificate or that the plan so confirmed decree or order has been modified by order of such
the court, as the case may be. (D) If a decree or order by the court in a bankruptcy or reorganization proceeding provides for or effects an amendment to the articles or the merger, consolidation, or dissolution of a corporation, or if after the filing in the office of the secretary of state of a
certificate of reorganization, or an amended certificate, a decree or order of
court is entered which that has the effect of vacating said the plan, a certified copy
of said the decree or order shall be filed by the corporation in the office of the
secretary of state. (E) Nonassenting or dissenting shareholders shall have only such rights as are
provided for in the plan of reorganization decree or order.
Sec. 1701.76. (A)(1) Provided the provisions of Chapter
1704. of the Revised Code do not prevent the transaction from
being effected, a lease, sale, exchange, transfer, or other
disposition of all, or substantially all, of the assets, with or
without the good will, of a corporation, if not made in the usual
and regular course of its business, may be made upon the terms
and conditions and for the consideration, that may consist, in
whole or in part, of money or other property of any description,
including shares or other securities or promissory obligations of
any other corporation, domestic or foreign, that may be authorized
as follows: (a) By the directors, either before or after authorization
by the shareholders as required in this section; and (b) At a meeting of the shareholders held for that
purpose, by the affirmative vote of the holders of shares
entitling them to exercise two-thirds of the voting power of the
corporation on the proposal, or, if the articles so provide or
permit, by the affirmative vote of a greater or lesser
proportion, but not less than a majority, of the voting power,
and by the affirmative vote of the holders of shares of any
particular class that is required by the articles. (2) At the shareholder meeting described in division
(A)(1)(b) of this section or at any subsequent shareholder
meeting, shareholders, by the same vote that is required to
authorize the lease, sale, exchange, transfer, or other
disposition of all, or substantially all, of the assets, with or
without the good will, of the corporation, may grant authority to
the directors to establish or amend any of the terms and
conditions of the transaction, except that the shareholders shall not
authorize the directors to do any of the following: (a) Alter or change the amount or kind of shares,
securities, money, property, or rights to be received in exchange
for the assets; (b) Alter or change to any material extent the amount or
kind of liabilities to be assumed in exchange for the assets; (c) Alter or change any other terms and conditions of the
transaction if any of the alterations or changes, alone or in the
aggregate, would materially adversely affect the shareholders or
the corporation. (3) Notice of the meeting of the shareholders described in
division (A)(1)(b) of this section shall be given to all
shareholders whether or not entitled to vote at the meeting and
shall be accompanied by a copy or summary of the terms of the
transaction. (B) The corporation by its directors may abandon the
transaction under this section, subject to the contract rights of other persons, if
the power of abandonment is conferred upon the directors either
by the terms of the transaction or by the same vote of
shareholders and at the same meeting of shareholders as that
referred to in division (A)(1)(b) of this section or at any
subsequent meeting. (C) Dissenting holders of shares of any class, whether or
not entitled to vote, shall be entitled to relief under section
1701.85 of the Revised Code. (D) An action to set aside a conveyance by a corporation,
on the ground that any section of the Revised Code applicable to
the lease, sale, exchange, transfer, or other disposition of all,
or substantially all, of the assets of that corporation has not
been complied with, shall be brought within ninety days after
that transaction, or the action shall be forever barred. (E) If a resolution of dissolution is adopted pursuant to
section 1701.86 of the Revised Code, the directors may dispose of
all, or substantially all, of the corporation's assets without
the necessity of a shareholders' authorization under this
section.
(F) The terms and conditions of any transaction under this section shall be subject to the limitations specified in section 2307.97 of the Revised Code. (G) This section does not apply to the distribution, pursuant to section 1701.33 of the Revised Code, to the shareholders of an issuing public corporation of shares owned by the issuing public corporation in one or more of its domestic or foreign subsidiary corporations, unless either of the following applies:
(1) The former subsidiary is a party to one or more agreements pursuant to which it is obligated to engage in an additional transaction that, if the transaction were authorized after the time at which the distribution becomes effective, would require the approval of its shareholders.
(2) Immediately prior to the time at which the distribution becomes effective, the issuing public corporation has more than one class of shares outstanding.
Sec. 1701.782. (A) Subject to division (B)(2) of this section, pursuant to a written declaration of conversion as provided in this section, a domestic or foreign entity that is not a domestic corporation and is not a nonprofit corporation may be converted into a domestic corporation.
(B)(1) The written declaration of conversion shall set forth all of the following:
(a) The name and form of entity that is being converted, the name of the entity into which the entity will be converted, and the jurisdiction of formation of the converting entity;
(b) The articles of the converted corporation;
(c) All statements and matters required to be set forth in an instrument of conversion by the laws under which the converting entity exists;
(d) The terms of the conversion; the mode of carrying them into effect; and the manner and basis of converting the interests or shares of the converting entity into, or substituting the interests or shares in the converting entity for, interests, evidences of indebtedness, other securities, cash, rights, or any other property or any combination of interests, evidences of indebtedness, other securities, cash, rights, or any other property of the converted corporation.
(2) No conversion or substitution described in this section shall be effected if there are reasonable grounds to believe that the conversion or substitution would render the converted corporation unable to pay its obligations as they become due in the usual course of its affairs.
(C) The written declaration of conversion may set forth any of the following:
(1) The effective date of the conversion, which date may be on or after the date of the filing of the certificate of conversion pursuant to section 1701.811 of the Revised Code;
(2) A provision authorizing the converting entity to abandon the proposed conversion by action of authorized representatives of the converting entity taken prior to the filing of the certificate of conversion pursuant to section 1701.811 of the Revised Code;
(3) A statement of, or a statement of the method to be used to determine, the fair value of the assets owned by the converting entity at the time of the conversion;
(4) The regulations of the converted corporation;
(5) The identity of the directors of the converted corporation;
(6) The parties to the declaration of conversion in addition to the converting entity;
(7) The stated capital, if any, of each class of shares of the converted corporation to be outstanding at the time that the conversion becomes effective;
(8) Any additional provision necessary or desirable with respect to the proposed conversion or the converted entity.
(D) At any time before the filing of the certificate of conversion pursuant to section 1701.811 of the Revised Code, the conversion may be abandoned by any representatives authorized to do so by the declaration of conversion, or by the same vote as was required to adopt the declaration of conversion. Sec. 1701.792. (A) Subject to division (B)(2) of this section, pursuant to a written declaration of conversion as provided in this section, a domestic corporation may be converted into a domestic or foreign entity other than a nonprofit corporation or a domestic corporation.
(B)(1) The written declaration of conversion shall set forth all of the following:
(a) The name and form of entity that is being converted, the name of the entity into which the entity will be converted, the form of the converted entity, and the jurisdiction of formation of the converted entity;
(b) If the converted entity is a domestic entity, the complete terms of all documents required under the applicable chapter of the Revised Code to form the converted entity;
(c) If the converted entity is a foreign entity, all of the following:
(i) The complete terms of all documents required under the law of its formation to form the converted entity;
(ii) The consent of the converted entity to be sued and served with process in this state, and the irrevocable appointment of the secretary of state as the agent of the converted entity to accept service of process in this state to enforce against the converted entity any obligation of the converting corporation or to enforce the rights of a dissenting shareholder of the converting corporation;
(iii) If the converted entity desires to transact business in this state, the information required to qualify or to be licensed under the applicable chapter of the Revised Code.
(d) All other statements and matters required to be set forth in the declaration of conversion by the applicable chapter of the Revised Code, if the converted entity is a domestic entity, or by the laws under which the converted entity will be formed, if the converted entity is a foreign entity;
(e) The terms of the conversion; the mode of carrying them into effect; and the manner and basis of converting the interests or shares of the converting corporation into, or substituting the interests or shares in the converting corporation for, interests, evidences of indebtedness, other securities, cash, rights, or any other property or any combination of interests, evidences of indebtedness, other securities, cash, rights, or any other property of the converted entity.
(2) No conversion or substitution described in this section shall be effected if there are reasonable grounds to believe that the conversion or substitution would render the converted entity unable to pay its obligations as they become due in the usual course of its affairs.
(C) The written declaration of conversion may set forth any of the following:
(1) The effective date of the conversion, which date may be on or after the date of the filing of the certificate of conversion;
(2) A provision authorizing, prior to the filing of the certificate of conversion pursuant to section 1701.811 of the Revised Code, the converting corporation to abandon the proposed conversion by action of the directors of the converting corporation or by the same vote as was required to adopt the declaration of conversion;
(3) A statement of, or a statement of the method to be used to determine, the fair value of the assets owned by the converting corporation at the time of the conversion;
(4) The parties to the declaration of conversion in addition to the converting entity;
(5) Any additional provision necessary or desirable with respect to the proposed conversion or the converted entity.
(D) The directors of the domestic converting corporation must approve the declaration of conversion to effect the conversion, and the declaration of conversion must be adopted by the shareholders of the domestic converting corporation, at a meeting held for the purpose.
(E) Notice of each meeting of shareholders of a domestic converting corporation at which a declaration of conversion is to be submitted shall be given to all shareholders of that corporation, whether or not they are entitled to vote, and shall be accompanied by a copy or a summary of the material provisions of the declaration of conversion.
(F) The vote required to adopt a declaration of conversion at a meeting of the shareholders of a domestic converting corporation is the affirmative vote of the holders of shares of that corporation entitling them to exercise at least two-thirds of the voting power of the corporation on the proposal or a different proportion as provided in the articles, but not less than a majority, or, if the conversion is to a foreign corporation, a different proportion as the articles provide for a merger or consolidation, and the affirmative vote of the holders of shares of any particular class as required by the articles of the converting corporation.
If the declaration of conversion would have an effect that, if accomplished through an amendment to the articles, would entitle the holders of shares of any particular class of a domestic converting corporation to vote as a class on the adoption of an amendment as provided in division (B) of section 1701.71 of the Revised Code, the declaration of conversion also must be adopted by the affirmative vote of the holders of at least two-thirds of the shares of such class, or a different proportion as the articles provide, but not less than a majority. However, if the declaration of conversion would have an effect that, if accomplished through an amendment to the articles, would entitle the holders of shares of any particular class of a domestic converting corporation to vote as a class on the adoption of an amendment pursuant to division (B)(2) or (4) of section 1701.71 of the Revised Code solely because those shares are to be converted into or substituted for the same number of shares of a class of a different corporation having express terms identical in all material respects to those of the class of shares so converted or substituted, the declaration of conversion does not need to be adopted by the affirmative vote of the holders of shares of that particular class voting as a class.
If the declaration of conversion would authorize any particular corporate action that under any applicable provision of law or the articles could be authorized only by or pursuant to a specified vote of shareholders, the declaration of conversion also must be adopted by the same affirmative vote as required for such action.
(G)(1) At any time before the filing of the certificate of conversion pursuant to section 1701.811 of the Revised Code, the conversion may be abandoned by the directors of the converting corporation, if the directors are authorized to do so by the declaration of conversion, or by the same vote of the shareholders as was required to adopt the declaration of conversion.
(2) The declaration of conversion may contain a provision authorizing the directors of the converting corporation to amend the declaration of conversion at any time before the filing of the certificate of conversion pursuant to section 1701.811 of the Revised Code, except that, after the adoption of the declaration of conversion by the stockholders of the converting corporation, the directors may not amend the declaration of conversion to do any of the following:
(a) 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 the shareholders of the converting corporation in conversion of, or substitution for, their shares;
(b) Alter or change any term of the organizational documents of the converted entity except for alterations or changes that are adopted with the vote or action of the persons, the vote or action of which would be required for the alteration or change after the conversion;
(c) Alter or change any other terms and conditions of the declaration of conversion if any of the alterations or changes, alone or in the aggregate, materially and adversely would affect the holders of any class or series of shares of the converting corporation.
Sec. 1701.802. (A) For purposes of this section, a holding company is a domestic corporation that, from its formation until consummation of a merger governed by this section, was at all times a direct or indirect wholly owned subsidiary of the parent corporation and whose shares are issued in that merger solely to the shareholders of the parent corporation.
(B) Pursuant to an agreement of merger between the constituent corporations as provided in this section and provided that the provisions of Chapter 1704. of the Revised Code do not prevent the merger from being effected, a direct or indirect wholly owned domestic subsidiary may be merged with or into a domestic parent corporation if all of the following apply:
(1) The parent company and the direct or indirect wholly owned subsidiary are the only constituent entities to the merger.
(2) Each share or fraction of a share of the outstanding shares of the parent corporation outstanding immediately prior to the time at which the merger becomes effective is converted in the merger into a share or fraction of a share of a holding company having express terms identical in all material respects to those that were converted in the merger.
(3) The articles and regulations of the holding company immediately following the time at which the merger becomes effective contain provisions identical in all material respects to those contained in the articles and regulations of the parent corporation immediately prior to the time at which the merger becomes effective.
(4) As a result of the merger, the parent corporation becomes a direct or indirect wholly owned subsidiary of the holding company.
(5) The directors of the parent corporation become or remain the directors of the holding company immediately following the time at which the merger becomes effective.
(C) A parent corporation, by action of its board of directors, may adopt a merger described in division (B) of this section without any vote of its shareholders. From and after the effective time of a merger adopted in this manner, all of the following apply:
(1) To the extent the restrictions of Chapter 1704. of the Revised Code applied to the parent corporation and its shareholders at the effective time of the merger, such restrictions apply to the holding company and its shareholders immediately after the effective time of the merger as though it were the parent corporation. All shares of stock of the holding company acquired in the merger, for purposes of Chapter 1704. of the Revised Code, are deemed to have been acquired at the time that the shares of stock of the parent corporation converted in the merger were acquired, and any shareholder that immediately prior to the effective time of the merger was not an interested shareholder of the parent corporation within the meaning of Chapter 1704. of the Revised Code does not solely by reason of the merger become an interested shareholder of the holding company.
(2) If the corporate name of the holding company immediately following the effective time of the merger is the same as the corporate name of the parent corporation immediately prior to the effective time of the merger, the shares of capital stock of the holding company into which the shares of capital stock of the parent corporation are converted in the merger shall be represented by the stock certificates that previously represented shares of capital stock of the parent corporation.
(3) To the extent a shareholder of the parent corporation immediately prior to the time at which the merger became effective had standing to institute or maintain litigation by or in the right of the parent corporation, nothing in this section shall be deemed to limit or extinguish such standing.
(D) If the agreement of merger is adopted pursuant to division (C) of this section, the secretary or assistant secretary of the parent corporation shall certify on the agreement that the agreement has been adopted pursuant to this section and that the conditions specified in division (B) of this section have been satisfied.
(E) The agreement of merger shall set forth the designation and the number of the outstanding shares of each class of the subsidiary constituent corporation and the number of shares of each such class owned by the surviving corporation. It also shall set forth any statements and matters that are required, and may set forth any provision that is permitted, in a merger under section 1701.78 of the Revised Code.
(F)(1) Except as otherwise provided in division (F)(2) of this section, within twenty days after the approval of the agreement of merger by the directors of each domestic constituent corporation, the surviving corporation shall deliver or send notice of such approval and a copy or summary of the agreement to each shareholder of each domestic constituent corporation, other than the surviving corporation, of record as of the date on which the directors of the surviving corporation approved the agreement. The notice and copy or summary shall be delivered or sent by mail, overnight delivery service, or any other means of communication authorized by the shareholder to whom the notice and copy or summary are sent. (2) Any corporation that files periodic reports with the United States securities and exchange commission pursuant to section 13 of the "Securities Exchange Act of 1934," 116 Stat. 787, 15 U.S.C. 78m, as amended, or section 15(d) of the "Securities Exchange Act of 1934," 48 Stat. 881, 15 U.S.C. 78o(d), as amended, may satisfy the notice requirement of division (F)(1) of this section by including a copy of the agreement of merger in a report filed in accordance with those provisions within twenty days after the approval of the agreement of merger by the directors of the corporation.
(G) The approval of the agreement of merger by the directors of a domestic constituent corporation under this section constitutes adoption by that corporation.
Sec. 1701.81. (A) Upon adoption by each constituent
entity
of an agreement of merger or consolidation pursuant to
section
1701.78, 1701.781, 1701.79, 1701.791, 1701.80, or
1701.801, or 1701.802 of the
Revised Code, a certificate of merger or
consolidation shall be
filed with the secretary of state that is
signed by any authorized
representative of each
constituent corporation, partnership, or
other
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 each representative 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 each person who signed the certificate on
behalf of each
entity is 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 against any constituent entity 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)(8), (9), or (10) of
section 1701.791 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 such later date as 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) of
section 111.16 of
the Revised Code, the secretary of state's
certificate setting
forth
the name and the 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. 1701.811. (A) Upon the adoption of a declaration of conversion pursuant to section 1701.782 or 1701.792 of the Revised Code, or at a later time as authorized by the declaration of conversion, a certificate of conversion that is signed by an authorized representative of the converting entity shall be filed with the secretary of state. 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 conversion shall set forth all of the following:
(a) The name and the form of entity of the converting entity and the state under the laws of which the converting entity exists;
(b) A statement that the converting entity has complied with all of the laws under which it exists and that the laws permit the conversion;
(c) The name and mailing address of the person or entity that is to provide a copy of the declaration of conversion in response to any written request made by a shareholder, partner, or member of the converting entity;
(d) The effective date of the conversion, which date may be on or after the date of the filing of the certificate pursuant to this section;
(e) The signature of the representative or representatives authorized to sign the certificate on behalf of the converting entity and the office held or the capacity in which the representative is acting;
(f) A statement that the declaration of conversion is authorized on behalf of the converting entity and that each person signing the certificate on behalf of the converting entity is authorized to do so;
(g) The name and the form of the converted entity and the state under the laws of which the converted entity will exist;
(h) If the converted entity is a foreign entity that will not be licensed in this state, the name and address of the statutory agent upon whom any process, notice, or demand may be served.
(2) In the case of a conversion into a new domestic corporation, limited liability company, limited partnership, or other partnership, any organizational document, including a designation of agent, that would be filed upon the creation of the new entity shall be filed with the certificate of conversion.
(3) If the converted entity is a foreign entity that desires to transact business in this state, the certificate of conversion shall be accompanied by the information required by division (B)(8), (9), or (10) of section 1701.791 of the Revised Code.
(4) If a foreign or domestic corporation licensed to transact business in this state is the converting entity, the certificate of conversion 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 a converting domestic corporation, or 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 a foreign corporation.
(C) If the converting entity or the converted entity 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, all documents required to be filed in connection with the conversion by the laws of that state or that chapter shall be filed in the proper office.
(D) Upon the filing of a certificate of conversion and other filings required by division (C) of this section or at any later date that the certificate of conversion specifies, the conversion is effective, subject to the limitation that no conversion will be effective if there are reasonable grounds to believe that the conversion would render the converted entity unable to pay its obligations as they become due in the usual course of its affairs.
(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 all of the following:
(1) The name and form of entity of the converting entity and the state under the laws of which it existed prior to the conversion;
(2) The name and the form of entity of the converted entity and the state under the laws of which it will exist;
(3) The date of filing of the certificate of conversion with the secretary of state and the effective date of the conversion.
(F) The certificate of the secretary of state, or a copy of the certificate of conversion 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 the recording, the county recorder shall charge and collect the same fee as in the case of deeds. Sec. 1701.821. (A) Upon a conversion becoming effective, all of the following apply:
(1) The converting entity is continued in the converted entity.
(2) The converted entity exists, and the converting entity ceases to exist.
(3) The converted entity possesses both of the following, and both of the following continue in the converted entity without any further act or deed:
(a) Except to the extent limited by the requirements of applicable law, both of the following:
(i) All assets and property of every description of the converting entity and every interest in the assets and property of the converted entity, wherever the assets, property, and interests are located. Title to any real estate or any interest in real estate that was vested in the converting entity does not revert or in any way is impaired by reason of the conversion.
(ii) The rights, privileges, immunities, powers, franchises, and authority, whether of a public or a private nature, of the converting entity.
(b) All obligations belonging or due to the converting entity.
(4) All the rights of creditors of the converting entity are preserved unimpaired, and all liens upon the property of the converting entity are preserved unimpaired. If a general partner of a converting partnership is not a general partner of the entity resulting from the conversion, then the former general partner has no liability for any obligation incurred after the conversion except to the extent that a former creditor of the converting partnership in which the former general partner was a general partner extends credit to the converted entity reasonably believing that the former general partner continues as a general partner of the converted entity.
(B) In the case of a conversion into a foreign corporation, limited liability company, or partnership that is not licensed or registered to transact business in this state, if the converted entity intends to transact business in this state, and the certificate of conversion is accompanied by the information described in division (B)(4) of section 1701.81 of the Revised Code, then on the effective date of the conversion, the converted entity is 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, limited partnership, or limited liability partnership as the case may be. In such a case, a copy of the certificate of conversion 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, foreign limited partnership, or foreign limited liability partnership.
(C) Any action to set aside a conversion on the ground that any section of the Revised Code applicable to the conversion has not been complied with shall be brought within ninety days after the effective date of the conversion or is forever barred.
(D) In the case of a converting or converted 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 which that entity exists or in which it has property.
Sec. 1701.831. (A) Unless the articles or, the regulations
adopted by the shareholders, or the regulations adopted by the directors pursuant to division (A)(1) of section 1701.10 of the Revised Code of the issuing public corporation provide that this section does
not apply to control share acquisitions of shares of such
corporation, any control share acquisition of an issuing public
corporation shall be made only with the prior authorization of
the shareholders of such corporation in accordance with this
section. (B) Any person who proposes to make a control share
acquisition shall deliver an acquiring person statement to the
issuing public corporation at the issuing public corporation's
principal executive offices. Such acquiring person statement
shall set forth all of the following: (1) The identity of the acquiring person; (2) A statement that the acquiring person statement is
given pursuant to this section; (3) The number of shares of the issuing public corporation
owned, directly or indirectly, by the acquiring person; (4) The range of voting power, described in division
(Z)(1)(a), (b), or (c) of section 1701.01 of the Revised Code,
under which the proposed control share acquisition would, if
consummated, fall; (5) A description in reasonable detail of the terms of the
proposed control share acquisition; (6) Representations of the acquiring person, together with
a statement in reasonable detail of the facts upon which they are
based, that the proposed control share acquisition, if
consummated, will not be contrary to law, and that the acquiring
person has the financial capacity to make the proposed control
share acquisition. (C)(1) Within ten days after receipt of an acquiring person
statement that complies with division (B) of this section, the
directors of the issuing public corporation shall call a special
meeting of shareholders of the issuing public corporation for the
purpose of voting on the proposed control share acquisition.
Subject to division (C)(2) of this section, unless the acquiring person and the issuing public corporation agree in writing to another date,
such special meeting of shareholders shall be held within fifty
days after receipt by the issuing public corporation of the
acquiring person statement. If the acquiring person so requests
in writing at the time of delivery of the acquiring person
statement, such special meetings shall be held no sooner than
thirty days after receipt by the issuing public corporation of
the acquiring person statement. Subject to division (C)(2) of this section, such special meeting of
shareholders shall be held no later than any other special
meeting of shareholders that is called, after receipt by the
issuing public corporation of the acquiring person statement, in
compliance with this section or section 1701.76, 1701.78, 1701.781, 1701.79, 1701.791, 1701.801, or 1701.83 of the Revised Code.
(2) If, in connection with a proposed control share acquisition, the acquiring person changes the percentage of the class of shares being sought, the consideration offered, or the security dealer's soliciting fee; extends the expiration date of a tender offer for the shares being sought; or otherwise changes the terms of the proposed control share acquisition, then the directors of the issuing public corporation may reschedule the special meeting of shareholders required by division (C)(1) of this section. If the proposed control share acquisition is to be made pursuant to a tender offer, then the meeting may be rescheduled to a date that is not later than the expiration date of the offer. If the proposed control share acquisition is to be made other than pursuant to a tender offer, the meeting may be rescheduled to a date that is not later than ten business days after notice of the change is first given to the shareholders. (D) Notice of the special meeting of shareholders shall be
given as promptly as reasonably practicable by the issuing public
corporation to all shareholders of record as of the record date
set for such meeting, whether or not entitled to vote at the meeting.
The notice shall include or be accompanied by both of the
following: (1) A copy of the acquiring person statement delivered to
the issuing public corporation pursuant to this section; (2) A statement by the issuing public corporation,
authorized by its directors, of its position or recommendation,
or that it is taking no position or making no recommendation,
with respect to the proposed control share acquisition. (E) The acquiring person may make the proposed control
share acquisition if both of the following occur: (1) The shareholders of the issuing public corporation who
hold shares as of the record date of such corporation entitling them to
vote in the
election of directors authorize the acquisition at the
special
meeting held for that purpose at which a quorum is present by an
affirmative vote of a majority of the voting power of such
corporation in the election of directors represented at the
meeting in person or by proxy, and a majority of the portion of
the voting power excluding the voting power of interested
shares represented at the meeting in person or by proxy. A quorum
shall be deemed to be present at the special
meeting if at least a majority of the voting power of the issuing
public corporation in the election of directors is represented at
the
meeting in person or by proxy. (2) The acquisition is consummated, in accordance with
the terms so authorized, no later than three hundred sixty days
following shareholder authorization of the control share
acquisition. (F) Except as expressly provided in this section, nothing
in this section shall be construed to affect or impair any right,
remedy, obligation, duty, power, or authority of any acquiring
person, any issuing public corporation, the directors of any
acquiring person or issuing public corporation, or any other
person under the laws of this or any other state or of the United
States. (G) If any application of any provision of this section is
for any reason held to be illegal or invalid, the illegality or
invalidity shall not affect any legal and valid provision or
application of this section, and the parts and applications of
this section are severable.
Sec. 1701.84. The following are entitled to relief as
dissenting shareholders under section 1701.85 of the Revised
Code: (A) Shareholders of a domestic corporation that is being
merged or consolidated into a surviving or new entity,
domestic or foreign, pursuant to section 1701.78, 1701.781, 1701.79, 1701.791,
or 1701.801 of the Revised Code; (B) In the case of a merger into a domestic corporation,
shareholders of the surviving corporation who under section
1701.78 or 1701.781 of the Revised Code are entitled to vote
on the adoption of an agreement of merger, but only as to the shares so
entitling them to vote; (C) Shareholders, other than the parent corporation, of a
domestic subsidiary corporation that is being merged into the
domestic or foreign parent corporation pursuant to section
1701.80 of the Revised Code; (D) In the case of a combination or a majority share
acquisition, shareholders of the acquiring corporation who under
section 1701.83 of the Revised Code are entitled to vote on such
transaction, but only as to the shares so entitling them to vote; (E) Shareholders of a domestic subsidiary corporation into
which one or more domestic or foreign
corporations are being merged pursuant to section 1701.801 of the
Revised Code;
(F) Shareholders of a domestic corporation that is being converted pursuant to section 1701.792 of the Revised Code.
Sec. 1701.85. (A)(1) A shareholder of a domestic
corporation is entitled to relief as a dissenting shareholder in
respect of the proposals described in sections 1701.74, 1701.76, and
1701.84 of the Revised Code, only in compliance with this
section. (2) If the proposal must be submitted to the shareholders
of the corporation involved, the dissenting shareholder shall be
a record holder of the shares of the corporation as to which he the
dissenting shareholder
seeks relief as of the date fixed for the determination of
shareholders entitled to notice of a meeting of the shareholders
at which the proposal is to be submitted, and such shares 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 shareholders, the dissenting shareholder shall deliver
to the corporation a written demand for payment to him the
dissenting shareholder of the
fair cash value of the shares as to which he the dissenting
shareholder seeks relief,
which demand shall state his the dissenting shareholder's
address, the number and class of such shares, and
the
amount claimed by him the dissenting shareholder as the fair
cash value of the shares. (3) The dissenting shareholder entitled to relief under
division (C) of section 1701.84 of the Revised Code in the case
of a merger pursuant to section 1701.80 of the Revised Code and a
dissenting shareholder entitled to relief under division (E) of
section 1701.84 of the Revised Code in the case of a merger
pursuant to section 1701.801 of the Revised Code shall be a
record holder of the shares of the corporation as to which he the
dissenting shareholder
seeks relief as of the date on which the agreement of merger was
adopted by the directors of that corporation. Within twenty days
after he the dissenting shareholder has been sent the notice
provided in section 1701.80 or
1701.801 of the Revised Code, the dissenting shareholder shall deliver to
the corporation a written demand for payment with the same
information as that provided for in division (A)(2) of this
section. (4) In the case of a merger or consolidation, a demand
served on the constituent corporation involved constitutes
service on the surviving or the new entity, whether the demand is served
before, on, or after the effective date of the merger or
consolidation. In the case of a conversion, a demand served on the converting corporation constitutes service on the converted entity, whether the demand is served before, on, or after the effective date of the conversion. (5) If the corporation sends to the dissenting
shareholder, at the address specified in his the dissenting
shareholder's demand, a request
for the certificates representing the shares as to which he the
dissenting shareholder seeks
relief, the dissenting shareholder, within fifteen days from the date of the
sending of
such request, shall deliver to the corporation the certificates
requested so that the corporation may forthwith endorse on
them a legend to the effect that demand for the fair cash value
of such shares has been made. The corporation promptly shall
return such the endorsed certificates to the dissenting shareholder. A dissenting
shareholder's failure to deliver such the certificates
terminates his the dissenting shareholder's rights as a dissenting
shareholder, at the option
of the corporation, exercised by written notice sent to the dissenting
shareholder
within twenty days after the lapse of the fifteen-day period,
unless a court for good cause shown otherwise directs. If shares
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 the shares. Upon receiving a
demand for payment from a dissenting shareholder who is the
record holder of uncertificated securities, the corporation shall
make an appropriate notation of the demand for payment in its
shareholder records. If uncertificated shares for which payment
has been demanded are to be transferred, any new certificate
issued for the shares shall bear the legend required for
certificated securities as provided in this paragraph. A
transferee of the shares so endorsed, or of uncertificated
securities where such notation has been made, acquires only such the
rights in the corporation as the original dissenting holder of
such shares had immediately after the service of a demand for
payment of the fair cash value of the shares. A request under this paragraph
by
the corporation is not an admission by the corporation that the
shareholder is entitled to relief under this section. (B) Unless the corporation and the dissenting shareholder
have come to an agreement on the fair cash value per share
of the shares as to which the dissenting shareholder seeks relief, the
dissenting shareholder or the
corporation, which in case of a merger or consolidation may be
the surviving or new entity, or in the case of a conversion may be the converted entity, within three months after
the service of the demand by the dissenting shareholder, may file a
complaint in the court of common pleas of the county in which the
principal office of the corporation that issued the shares is
located or was located when the proposal was adopted
by the shareholders of the corporation, or, if the proposal was
not required to be submitted to the shareholders, was approved by
the directors. Other dissenting shareholders, within that three-month 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. The complaint shall contain a
brief statement of the facts, including the vote and the facts
entitling the dissenting shareholder 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 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 day 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 shareholder
is entitled to be paid the fair cash value of any shares and, if
so, the number and class of such shares. If the court finds that
the dissenting shareholder is so entitled, the court 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 a share and shall render judgment
against the corporation for the payment of it, with interest at
such a rate and from such a 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 instituted 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
shareholder has dissented, the proceeding instituted under this
section shall be stayed until the final determination of the
other suit or proceeding. Unless any provision in division (D)
of this section is applicable, the fair cash value of the shares
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, the effective
date of the amendment to the articles, or the consummation of the
other action involved, whichever occurs last. Upon the
occurrence of the last such event, payment shall be made
immediately to a holder of uncertificated securities entitled to
such payment. In the case of holders of shares represented by
certificates, payment shall be made only upon and simultaneously
with the surrender to the corporation of the certificates
representing the shares for which the payment is made. (C) If the proposal was required to be submitted to the
shareholders of the corporation, fair cash value as to those
shareholders shall be determined as of the day prior to the day on
which the vote by the shareholders was taken and, in the case of
a merger pursuant to section 1701.80 or 1701.801 of the Revised
Code, fair cash value as to shareholders of a constituent
subsidiary corporation shall be determined as of the day before
the adoption of the agreement of merger by the directors of the
particular subsidiary corporation. The fair cash value of a
share for the 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 in no event shall the fair
cash value of a share exceed the amount specified in the demand of the
particular shareholder. In computing such fair cash value, any
appreciation or depreciation in market value resulting from the
proposal submitted to the directors or to the shareholders shall
be excluded. (D)(1) The right and obligation of a dissenting shareholder
to receive such fair cash value and to sell such shares as to
which he the dissenting shareholder seeks relief, and the right
and obligation of the
corporation to purchase such shares and to pay the fair cash
value of them terminates if any of the following applies: (a) The dissenting shareholder has not complied with this section,
unless the corporation by its directors waives such failure; (b) The corporation abandons the action involved or is finally enjoined or
prevented from carrying it out, or the shareholders rescind their
adoption of the action involved; (c) The dissenting shareholder withdraws his the dissenting
shareholder's demand, with the consent
of the corporation by its directors; (d) The corporation and the dissenting shareholder
have not come to an agreement as to the fair cash value per
share, and neither the shareholder nor the corporation has
filed or joined in a complaint under division (B) of this section
within the period provided in that division. (2) For purposes of division (D)(1) of this section, if the merger or,
consolidation, or conversion
has become effective and the surviving or, new, or converted entity is not a corporation,
action required to be taken by the directors of the corporation shall be taken
by the general partners of a surviving or, new, or converted partnership or the comparable
representatives of any other surviving or, new, or converted entity. (E) From the time of the dissenting shareholder's giving of the demand until
either the
termination of the rights and obligations arising from it or the
purchase of the shares by the corporation, all other rights
accruing from such shares, including voting and dividend or
distribution rights, are suspended. If during the suspension,
any dividend or distribution is paid in money upon shares 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 shares, an amount equal to the dividend,
distribution, or interest which, except for the suspension, would
have been payable upon such shares or securities, shall be paid
to the holder of record as a credit upon the fair cash value of
the shares. If the right to receive fair cash value is
terminated other than by the purchase of the shares by the
corporation, all rights of the holder shall be restored and all
distributions which, except for the suspension, would have been
made shall be made to the holder of record of the shares at the
time of termination.
Sec. 1701.92. (A) A copy of the articles or amended articles filed in the
office of the secretary of state, certified by the secretary of state, shall
be conclusive evidence, except as against the state, that the corporation has
been incorporated under the laws of this state; and a. A copy duly certified by
the secretary of state of any certificate of amendment or other certificate
filed in his the secretary of state's office shall be
prima-facie evidence of such the amendment or of the
facts stated in any such certificate, and of the observance and performance of
all antecedent conditions necessary to the action which such certificate
purports to evidence. (B) A copy of amended articles filed in the office of the secretary of state,
certified by the secretary of state, shall be accepted in this state and other
jurisdictions in lieu of the original articles, amendments thereto, and prior
amended articles. (C) The original or a copy of the record of minutes of the proceedings of the
incorporators of a corporation, or of the proceedings or meetings of the
shareholders or any class of shareholders, or of the directors, or of any
committee thereof, including any written consent, waiver, release, or
agreement entered in such the record or of minutes, or the original or a copy of a
statement that no specified proceeding was had or that no specified consent,
waiver, release, or agreement exists, shall, when certified to be true by the
secretary or an assistant secretary of a corporation, be received in the
courts
as prima-facie evidence of the facts stated therein. Every meeting referred
to in such the certified original or copy shall be deemed duly called and held,
and all motions and resolutions adopted and proceedings had at such meeting
shall be deemed duly adopted and had, and all elections of directors and all
elections or appointments of officers chosen at such meeting shall be deemed
valid, until the contrary is proved; and whenever. Whenever a person who is not a
shareholder of a corporation has acted in good faith in reliance upon any such
certified original or copy, it is conclusive in his the person's
favor.
(D) A certificate issued by the secretary of state confirming that a corporation is in good standing, as defined in division (E) of this section, is, for seven days after the date on the certificate, conclusive evidence of both of the following: (1) The authority of a domestic corporation has not been limited as described in section 1701.88 or 1701.91 of the Revised Code, provided that both of the following apply: (a) The person relying on the certificate had no knowledge that the corporation's articles had been canceled. (b) The certificate is not presented as evidence against the state. (2) The license authorizing a foreign corporation to transact business in this state has not expired, been cancelled, or been surrendered. (E) For purposes of division (D) of this section, "good standing" means that the authority of the corporation to carry on business is not limited by section 1701.88 of the Revised Code.
Sec. 1701.921. (A) Absent an express agreement to the contrary, a person providing goods to or performing services for a domestic or foreign corporation owes no duty to, incurs no liability or obligation to, and is not in privity with the shareholders or creditors of the corporation by reason of providing goods to or performing services for the corporation.
(B) Absent an express agreement to the contrary, a person providing goods to or performing services for a shareholder or group of shareholders of a domestic or foreign corporation owes no duty to, incurs no liability or obligation to, and is not in privity with the corporation, any other shareholders of the corporation, or the creditors of the corporation by reason of providing goods to or performing services for the shareholder or group of shareholders.
Sec. 1704.02. An issuing public corporation shall not
engage in a Chapter 1704. transaction for three years after an
interested shareholder's share acquisition date unless either of
the following applies: (A) Prior to the interested shareholder's share
acquisition date, the directors of the issuing public corporation
have approved, for the purposes of this chapter, the Chapter
1704. transaction or the purchase of shares by the interested
shareholder on the interested shareholder's share acquisition
date; (B) Any of the provisions of section 1704.05 of the
Revised Code makes this chapter inapplicable, except that if the
Chapter 1704. transaction is of a type described in section
1701.76, 1701.78, 1701.79, 1701.80, 1701.801, 1701.802, or 1701.86 of the
Revised Code, there also must be compliance with the provisions
of that section.
Sec. 1704.03. (A) At any time after the three-year period
described in section 1704.02 of the Revised Code, the issuing
public corporation may engage in a Chapter 1704. transaction,
provided that if the Chapter 1704. transaction is of a type
described in section 1701.76, 1701.78, 1701.79, 1701.80,
1701.801, 1701.802, or 1701.86 of the Revised Code, there is compliance
with the provisions of that section, and provided that at least
one of the following is satisfied: (1) Any of the provisions of section 1704.05 of the
Revised Code makes this chapter inapplicable; (2) Prior to the interested shareholder's share
acquisition date, the directors of the issuing public corporation
had approved the purchase of shares by the interested shareholder
on the interested shareholder's share acquisition date; (3) The Chapter 1704. transaction is approved, at a
meeting held for that purpose, by the affirmative vote of the
holders of shares of the issuing public corporation entitling
them to exercise at least two-thirds of the voting power of the
issuing public corporation in the election of directors, or of
such different proportion as the articles may provide, provided
the Chapter 1704. transaction also is also approved by the affirmative
vote of the holders of at least a majority of the disinterested
shares; (4) The Chapter 1704. transaction meets both of the
following conditions: (a) It results in the receipt per share by the holders of
all outstanding shares of the issuing public corporation not
beneficially owned by the interested shareholder of an amount of
cash that, when added to the fair market value, as of the
consummation date of the Chapter 1704. transaction, of noncash
consideration, aggregates at least the higher of the following: (i) The figure determined under division (B)(1) of this
section; (ii) The preferential amount per share, if any, to which
holders of shares of that class or series of shares are entitled
upon voluntary or involuntary dissolution of the issuing public
corporation, plus the aggregate amount per share of dividends
declared or due that those holders are entitled to receive before
payment of dividends on another class or series of shares, unless
the aggregate amount per share of those dividends is included in
the preferential amount. (b) The form of consideration to be received by holders of
each particular class or series of outstanding shares of the
issuing public corporation in the Chapter 1704. transaction,
apart from any portion that is interest, is in cash or, if the
interested shareholder previously purchased shares of that class
or series, is in the same form the interested shareholder
previously paid to acquire the largest number of shares of that
class or series, but in no event shall the fair market value of
the consideration received by a holder of a share of a particular
class or series of outstanding shares in the Chapter 1704.
transaction be less than the current fair market value of a share
of the issuing public corporation of the same class or series. (B)(1) For purposes of making a determination under
division (A)(4)(a) of this section, the figure to be used in
division (A)(4)(a)(i) of this section shall be the highest, after
taking into account interest to the extent provided in division
(B)(2) of this section, of the following: (a) The fair market value per share on the announcement
date of the Chapter 1704. transaction; (b) The fair market value per share on the interested
shareholder's share acquisition date; (c) The highest price per share paid, including brokerage
commissions, transfer taxes, and soliciting dealers' fees, by the
interested shareholder, or by an affiliate or associate of the
interested shareholder, for shares of the same class or series
within the three years immediately before and including the
announcement date of the Chapter 1704. transaction; (d) The highest price per share paid, including brokerage
commissions, transfer taxes, and soliciting dealers' fees, by the
interested shareholder, or by an affiliate or associate of the
interested shareholder, for shares of the same class or series
within the three years immediately before and including the
interested shareholder's share acquisition date. (2) Each determination under division (B)(1)(a), (b), (c),
or (d) of this section shall include interest compounded annually
from the earliest date as of which the per share fair market
value was determined or on which that highest per share purchase
price was paid through the consummation date of the Chapter 1704.
transaction, at the rate of interest paid on one-year United
States treasury obligations from time to time in effect, less the
aggregate amount of any cash and the fair market value, as of the
payment date, of any noncash dividends or other distributions
paid per share since that date, up to the amount of the interest.
Sec. 1705.09. (A) The contributions of a member may be made in
cash, property, services rendered, a promissory note, or any
other binding obligation to contribute cash or property or to
perform services; by providing any other benefit to the limited liability company; or by any combination of these. (B) A promise by a member to contribute to the limited
liability company is not enforceable unless it is set forth in a
writing signed by the member. (C) Except as otherwise provided in the operating
agreement, a member is obligated to the limited liability company
to perform any enforceable promise to contribute cash or other
property or to perform services, even if he the member is unable to perform
the promise because of death, disability, or another reason. If
a member fails to make a required contribution of property or
services, then, at the option of the limited liability company,
the member is obligated to contribute cash equal to the portion
of the value as stated in the records required to be kept under
section 1705.28 of the Revised Code of the stated contribution
that he the member has failed to make. This right of the company is in
addition to and not in lieu of any other rights, including, but
not limited to, the right to specific performance, that the
company may have against the member under the operating agreement
or applicable law. (D) Unless otherwise provided in the operating agreement,
the obligation of a member to make a contribution or to return
money or other property paid or distributed in violation of this
chapter may be compromised only by the consent of all of the
members.
Sec. 1705.19. If any judgment creditor of a member of a limited liability
company applies to a court of common pleas to charge the membership interest
of the member with payment of the unsatisfied amount of the judgment with
interest, the court may so charge the membership interest. To the extent the
membership interest is so charged, the judgment creditor has only the rights of an
assignee of the membership interest. Nothing in this chapter deprives a
member of his the member's statutory exemption.
Sec. 1705.361. (A) Subject to division (B)(2) of this section, pursuant to a written declaration of conversion as provided in this section, a domestic or foreign entity other than a domestic limited liability company may be converted into a domestic limited liability company. The conversion also must be permitted by the chapter of the Revised Code or by the laws under which the converting entity exists.
(B)(1) The written declaration of conversion shall set forth all of the following:
(a) The name and form of entity that is being converted, the name of the entity into which the entity will be converted, and the jurisdiction of formation of the converting entity;
(b) The articles of organization of the converted domestic limited liability company;
(c) The operating agreement of the converted domestic limited liability company or a provision that a written agreement of the converting entity, a copy of which is attached to the declaration of conversion, with any amendments set forth in the declaration of conversion, will be the operating agreement of the converted entity;
(d) If management of the converted entity is not reserved to its members, the names of the managers of the converted entity;
(e) All statements and matters required to be set forth in an instrument of conversion by the laws under which the converting entity exists;
(f) The terms of the conversion; the mode of carrying them into effect; and the manner and basis of converting the interests or shares of the converting entity into, or substituting the interests or shares in the converting entity for, interests, evidences of indebtedness, other securities, cash, rights, or any other property or any combination of interests, evidences of indebtedness, other securities, cash, rights, or any other property of the converted company.
(2) No conversion or substitution described in this section shall be effected if there are reasonable grounds to believe that the conversion or substitution would render the converted company unable to pay its obligations as they become due in the usual course of its affairs.
(C) The written declaration of conversion may set forth any of the following:
(1) The effective date of the conversion, which date may be on or after the date of the filing of the certificate of conversion pursuant to section 1705.381 of the Revised Code;
(2) A provision authorizing the converting entity to abandon the proposed conversion by action of authorized representatives of the converting entity taken prior to the filing of the certificate of conversion pursuant to section 1705.381 of the Revised Code;
(3) A statement of, or a statement of the method to be used to determine, the fair value of the assets owned by the converting entity at the time of the conversion;
(4) The parties to the declaration of conversion in addition to the converting entity;
(5) Any additional provision necessary or desirable with respect to the proposed conversion or the converted entity.
(D) At any time before the filing of the certificate of conversion pursuant to section 1705.381 of the Revised Code, the conversion may be abandoned by any representatives authorized to do so by the declaration of conversion, or by the same vote as was required to adopt the declaration of conversion. Sec. 1705.371. (A) Subject to division (B)(2) of this section, pursuant to a written declaration of conversion as provided in this section, a domestic limited liability company may be converted into a domestic or foreign entity other than a domestic limited liability company. The conversion also must be permitted by the chapter of the Revised Code or by the laws under which the converted entity will exist.
(B)(1) The written declaration of conversion shall set forth all of the following:
(a) The name of the domestic limited liability company that is being converted, the name of the entity into which the entity will be converted, the form of the converted entity, and the jurisdiction of formation of the converted entity;
(b) If the converted entity is a domestic entity, the complete terms of all documents required under the applicable chapter of the Revised Code to form the converted entity;
(c) If the converted entity is a foreign entity, all of the following:
(i) The complete terms of all documents required under the law of its formation to form the converted entity;
(ii) The consent of the converted entity to be sued and served with process in this state, and the irrevocable appointment of the secretary of state as the agent of the converted entity to accept service of process in this state to enforce against the converted entity any obligation of the converting company or to enforce the rights of a dissenting member of the converting company;
(iii) If the converted entity desires to transact business in this state, the information required to qualify or be licensed under the applicable chapter of the Revised Code.
(d) All other statements and matters required to be set forth in the declaration of conversion by the applicable chapter of the Revised Code if the converted entity is a domestic entity, or by the laws under which the converted entity will be formed, if the converted entity is a foreign entity;
(e) The terms of the conversion; the mode of carrying them into effect; and the manner and basis of converting the interests or shares of the converting company into, or substituting the interests in the converting company for, interests, evidences of indebtedness, other securities, cash, rights, or any other property or any combination of interests, evidences of indebtedness, other securities, cash, rights, or any other property of the converted entity.
(2) No conversion or substitution described in this section shall be effected if there are reasonable grounds to believe that the conversion or substitution would render the converted entity unable to pay its obligations as they become due in the usual course of its affairs.
(C) The written declaration of conversion may set forth any of the following:
(1) The effective date of the conversion, which date may be on or after the date of the filing of the certificate of conversion pursuant to section 1705.381 of the Revised Code;
(2) A provision authorizing the converting company to abandon the proposed conversion by action of the members or managers of the converting company taken prior to the filing of the certificate of conversion pursuant to section 1705.381 of the Revised Code;
(3) A statement of, or a statement of the method to be used to determine, the fair value of the assets owned by the converting company at the time of the conversion;
(4) The parties to the declaration of conversion in addition to the converting company;
(5) Any additional provision necessary or desirable with respect to the proposed conversion or the converted entity.
(D) The members of the converting domestic limited liability company and, if management is not reserved to its members, the managers of the converting entity must adopt the declaration of conversion in order to effect the conversion.
(E)(1) All members, whether or not they are entitled to vote or act, shall be given written notice of any meeting of members or of any proposed action by members, which meeting or action is to adopt a declaration of conversion. The notice shall be given to the members either as provided in writing in the operating agreement or by mail at the members' addresses as they appear on the records of the company, or in person. Unless the operating agreement provides a shorter or longer period, notice described in division (E)(1) of this section shall be given not less than seven and not more than sixty days before the meeting or the effective date of the action.
(2) The notice described in division (E)(1) of this section shall be accompanied by a copy or a summary of the material provisions of the declaration of conversion.
(F) The unanimous vote or action by the members of a converting company, or a different number or proportion as provided in writing in the operating agreement, is required to adopt a declaration of conversion.
If the declaration of conversion would have an effect or authorize any action that under any applicable provision of law or the operating agreement could be effected or authorized only by or pursuant to a specified vote or action of the members, or of any class or group of members, the declaration of conversion also must be adopted or approved by the same vote or action as would be required to effect that change or to authorize that action.
(G)(1) At any time before the filing of the certificate of conversion pursuant to section 1705.381 of the Revised Code, the conversion may be abandoned by all of the members of the converting company or by any representatives authorized to do so by the declaration of conversion, or by the same vote as was required to adopt the declaration of conversion.
(2) The declaration of conversion may contain a provision authorizing less than all of the members to amend the declaration of conversion at any time before the filing of the certificate of conversion pursuant to section 1705.381 of the Revised Code, except that, after the adoption of the declaration of conversion by the members, less than all of the members are not authorized to amend the declaration of conversion to do any of the following:
(a) 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 the members of the converting company in conversion of, or substitution for, their interests;
(b) Alter or change any term of the organizational documents of the converted entity except for alterations or changes that are adopted with the vote or action of the persons the vote or action of which would be required for the alteration or change after the conversion;
(c) Alter or change any other terms and conditions of the declaration of conversion if any of the alterations or changes, alone or in the aggregate, materially and adversely would affect the members or any class or group of members of the converting company. Sec. 1705.381. (A) Upon the adoption of a declaration of conversion pursuant to section 1705.361 or 1705.371 of the Revised Code, or at a later time as authorized by the declaration of conversion, a certificate of conversion that is signed by an authorized representative of the converting entity shall be filed with the secretary of state. 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 conversion shall set forth all of the following:
(a) The name and the form of entity of the converting entity and the state under the laws of which the converting entity exists;
(b) A statement that the converting entity has complied with all of the laws under which it exists and that those laws permit the conversion;
(c) The name and mailing address of the person or entity that is to provide a copy of the declaration of conversion in response to any written request made by a shareholder, partner, or member of the converting entity;
(d) The effective date of the conversion, which date may be on or after the date of the filing of the certificate pursuant to this section;
(e) The signature and title of the representative or representatives authorized to sign the certificate on behalf of the converting entity;
(f) A statement that the declaration of conversion is authorized on behalf of the converting entity and that each person signing the certificate on behalf of the converting entity is authorized to do so;
(g) The name and the form of the converted entity and the state under the laws of which the converted entity will exist;
(h) If the converted entity is a foreign entity that will not be licensed in this state, the name and address of the statutory agent upon whom any process, notice or demand may be served.
(2) In the case of a conversion into a new domestic corporation, limited liability company, limited partnership, or other partnership, any organizational document that would be filed upon the creation of the converted entity shall be filed with the certificate of conversion.
(3) If the converted entity is a foreign entity that desires to transact business in this state, the certificate of conversion shall be accompanied by the information required by division (B)(8), (9), or (10) of section 1705.37 of the Revised Code.
(4) If a foreign or domestic corporation licensed to transact business in this state is the converting entity, the certificate of conversion 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 a converting domestic corporation or 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 a foreign corporation.
(C) If the converting entity or the converted entity 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, all documents required to be filed in connection with the conversion by the laws of that state or that chapter shall be filed in the proper office.
(D) Upon the filing of a certificate of conversion and other filings required by division (C) of this section or at any later date that the certificate of conversion specifies, the conversion is effective, subject to the limitation that no conversion will be effective if there are reasonable grounds to believe that the conversion would render the converted entity unable to pay its obligations as they become due in the usual course of its affairs.
(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 all of the following:
(1) The name and form of entity of the converting entity and the state under the laws of which it existed prior to the conversion;
(2) The name and the form of entity of the converted entity and the state under the law of which it will exist;
(3) The date of filing of the certificate of conversion with the secretary of state and the effective date of the conversion.
(F) The certificate of the secretary of state, or a copy of the certificate of conversion 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 the recording, the county recorder shall charge and collect the same fee as in the case of deeds. Sec. 1705.391. (A) Upon a conversion becoming effective, all of the following apply:
(1) The converting entity is continued in the converted entity.
(2) The converted entity exists, and the converting entity ceases to exist.
(3) The converted entity possesses both of the following, and both of the following continue in the converted entity without any further act or deed:
(a) Except to the extent limited by the requirements of applicable law, both of the following:
(i) All assets and property of every description of the converting entity and every interest in the assets and property of the converting entity, wherever the assets, property, and interests are located. Title to any real estate or any interest in real estate that was vested in the converting entity does not revert or in any way is impaired by reason of the conversion.
(ii) The rights, privileges, immunities, powers, franchises, and authority, whether of a public or a private nature, of the converting entity.
(b) All obligations belonging or due to the converting entity.
(4) All the rights of creditors of the converting entity are preserved unimpaired, and all liens upon the property of the converting entity are preserved unimpaired. If a general partner of a converting partnership is not a general partner of the entity resulting from the conversion, then the former general partner has no liability for any obligation incurred after the conversion except to the extent that a former creditor of the converting partnership in which the former general partner was a general partner extends credit to the converted entity reasonably believing that the former general partner continues as a general partner of the converted entity.
(B) In the case of a conversion into a foreign corporation, limited liability company, or partnership that is not licensed or registered to transact business in this state, if the converted entity intends to transact business in this state, and the certificate of conversion is accompanied by the information described in division (B)(4) of section 1705.38 of the Revised Code, then on the effective date of the conversion, the converted entity is 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, limited partnership, or limited liability partnership as the case may be. In such a case, a copy of the certificate of conversion 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, foreign limited partnership, or foreign limited liability partnership.
(C) Any action to set aside any conversion on the ground that any section of the Revised Code applicable to the conversion has not been complied with shall be brought within ninety days after the effective date of the conversion or is forever barred.
(D) In the case of a converting or converted 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 which that entity exists or in which it has property.
Sec. 1705.40. Unless otherwise provided in writing in the
operating agreement of a constituent domestic limited liability
company, the following are entitled to relief as dissenting
members as provided in section 1705.41 of the Revised Code: (A) Members of a domestic limited liability company that
is being merged or consolidated into a surviving or new domestic
or foreign entity pursuant to section 1705.36 or 1705.37 of the
Revised Code; (B) In the case of a merger into a domestic limited
liability company, members of the surviving domestic limited
liability company who, under section 1705.36 of the Revised Code,
are entitled to vote or act on the adoption or approval of the
agreement of merger, but only as to the membership interests
entitling them to so vote or act;
(C) Members of a domestic limited liability company that is being converted pursuant to section 1705.371 of the Revised Code.
Sec. 1705.41. (A) A member of a domestic limited
liability company is entitled to relief as a dissenting member as
described in section 1705.40 of the Revised Code only in
compliance with this section. (B) If a proposal of merger or, consolidation proposal, or conversion is to be
submitted to the members of a domestic limited liability company
at a meeting, a dissenting member must be a member and a record
holder of the membership interests as to which he the dissenting
member seeks relief as
of the date fixed for the determination of members entitled to
notice of the meeting, and those membership interests must 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 members, the dissenting member shall
deliver to the company a written demand for payment to him the
dissenting member of the
fair cash value of the membership interests as to which he the
dissenting member seeks
relief. The demand shall state the address of the dissenting
member, the number and class of the membership interests, and the
amount claimed by the dissenting member as the fair cash value of
the membership interests. (C) If the proposal of merger or, consolidation proposal, or conversion is to be
submitted to the members of a domestic limited liability company
for their written approval or other action without a meeting, a
dissenting member must be a member and a record holder of the
membership interests as to which he the dissenting member seeks
relief as of the date
that the written request for approval or other action is sent to
the members entitled to act or otherwise approve the proposal,
and the dissenting member must not have indicated his the dissenting
member's approval of
the proposal in his the dissenting member's capacity as record
holder of the membership
interests. Not later than fifteen days after the date on which
the request for approval or other action was mailed to the
members, the dissenting member shall deliver to the company a
written demand for payment to him the dissenting member of the
fair cash value of the
membership interests as to which he the dissenting member seeks
relief. The demand
shall state the address of the dissenting member, the number and
class of the membership interests, and the amount claimed by the
dissenting member as the fair cash value of the membership
interests. (D) A written demand for payment of the fair cash value of
membership interests that is served on a domestic limited
liability company under this section constitutes service on the
surviving or new entity resulting from the merger or
consolidation or on the entity resulting from a conversion, whether the demand is served before, on, or after
the effective date of the merger or, consolidation, or conversion. (E)(1) If the membership interests as to which a
dissenting member seeks relief are represented by certificates
and if the domestic limited liability company sends to the
dissenting member at the address specified in his the dissenting
member's demand for
payment of the fair cash value of those interests a request for
the certificates representing those interests, the dissenting
member shall deliver the requested certificates to the company
within fifteen days from the date on which the request is sent to
him the dissenting member so that the company may endorse a
legend on the certificates
to the effect that a demand for the fair cash value of those
membership interests has been made. The company promptly shall
return the endorsed certificates to the dissenting member. At the option of the company, the failure of the dissenting
member to deliver the certificates as described in this division
shall terminate his the dissenting member's rights as a
dissenting member. If exercised,
the option shall be exercised by a written notice sent to the
dissenting member within twenty days after the lapse of the
fifteen-day period described in this division, unless a court for
good cause shown otherwise directs. If membership interests represented by a certificate on
which a legend has been endorsed under this division are
transferred, each new certificate issued for the membership
interests shall bear a similar legend and the name of the
original dissenting holder of the membership interests. (2) Upon receiving from a dissenting member a demand for
payment of the fair cash value of membership interests that are
not represented by a certificate, a domestic limited liability
company shall make an appropriate notation of the demand in its
records. If uncertificated membership 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 membership interests as described in division (E)(1)
of this section. (3) A transferee of membership interests who receives a
certificate endorsed with a legend as described in division
(E)(1) of this section and a transferee of uncertificated
membership interests with respect to which a notation has been
made as described in division (E)(2) of this section acquires
only the rights in the domestic limited liability company that
the original dissenting member had immediately after the serving
of the demand for payment of the fair cash value of the
membership interests. (4) A request for certificates under division (E)(1) of
this section by a domestic limited liability company is not an
admission by it that the member is entitled to relief under this
section. (F) Unless the operating agreement of the domestic limited
liability company in which the dissenting member was a member
provides a reasonable basis for determining and paying the fair
cash value of the membership interests as to which the dissenting
member seeks relief or unless that company and the dissenting
member have come to an agreement on the fair cash value of those
interests, within three months after the service of the demand
for payment of the fair cash value of those interests, the
dissenting member, that company, or the surviving or new entity
may file a complaint under section 1705.42 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 limited
liability company that issued the membership interest is located
or was located when the proposal for merger or, consolidation, or conversion was
adopted or approved by the members of that company. Within three
months after the service of the demand for payment of the fair
cash value of the membership interests of the dissenting member,
other dissenting members may join as plaintiffs or may be joined
as defendants in the proceeding described in section 1705.42 of
the Revised Code, and any two or more proceedings commenced by
dissenting members may be consolidated. (G) The right of a dissenting member to receive the fair
cash value for the membership interests as to which he the
dissenting member seeks
relief, the obligation of the dissenting member to sell those
interests, the right of the domestic limited liability company to
purchase those interests, and the obligation of the company to
pay the fair cash value for those interests terminate if any of
the following applies: (1) Unless the company waives the failure, the dissenting
member fails to comply with this section. (2) The company abandons the merger or, consolidation, or conversion or is
finally enjoined or prevented from carrying it out, or the
members rescind their adoption or approval of the merger or,
consolidation, or conversion. (3) The dissenting member withdraws his the dissenting member's
demand for payment
of the fair cash value of the membership interests with the
consent of the company. (4) All of the following apply: (a) The operating agreement of the domestic limited
liability company in which the dissenting member was a member
does not provide a reasonable basis for determining and paying
the dissenting member the fair cash value of his the dissenting
member's membership
interests. (b) The company and the dissenting member have not agreed
upon the fair cash value of the membership interests. (c) Neither the dissenting member nor the company has
filed, joined, or been joined in a complaint under division (F)
of this section within the three-month period provided in that
division. (H) Unless otherwise provided in the operating agreement
of the domestic limited liability company in which the dissenting
member was a member, from the time that the dissenting member
delivers the demand for payment of the fair cash value of the
membership interests as to which he the dissenting member seeks
relief until the
termination of the rights and obligations arising from that
demand or the purchase of those interests by the company, all
other rights accruing from those interests, including voting or
distribution rights, are suspended. If, during the suspension,
any distribution is paid in money upon membership interests of
the class of those interests or any dividend, distribution, or
interest is paid in money upon any securities issued in
extinguishment of or in substitution for those interests, an
amount equal to the dividend, distribution, or interest that,
except for the suspension, would have been payable upon those
interests or those securities shall be paid to the record holder
of those interests or securities as a credit upon the fair cash
value of those interests. If the right to receive the fair cash
value of those interests is terminated other than by the purchase
of those interests by the company, all rights of the dissenting
member shall be restored and all distributions that, except for
the suspension, would have been made shall be made to the record
holder of those interests at the time of termination.
Sec. 1705.42. (A)(1) When authorized by division (F) of
section 1705.41 of the Revised Code, a dissenting member of a
domestic limited liability company may file a complaint for the
relief described in this section. The complaint shall contain a
brief statement of the relevant facts, including the vote or
action by the members of that company pertaining to the merger or,
consolidation, or conversion and the facts entitling the dissenting member to
the relief described in this section, and a demand for that
relief. When authorized by division (F) of section 1705.41 of
the Revised Code, the company, or a surviving or new entity or converted entity, also
may file a complaint under this section. Notwithstanding the
Rules of Civil Procedure, no answer to a complaint filed under
this section is required. (2) Upon the filing of the complaint and upon motion of
the complainant, the court shall enter an order that fixes a date
for a hearing on the complaint and that requires the service of a
copy of the complaint and a notice of its filing and the date for
the hearing on the defendants in the manner prescribed in the
Rules of Civil Procedure for the service of process. On the date
fixed for the hearing or any adjournment of the hearing, the
court shall determine from the complaint and from all evidence
submitted at the hearing by the parties whether the dissenting
member is entitled to be paid the fair cash value of any
membership interests and, if he the dissenting member is to be
so paid, the number and
class of those interests. If the court finds that the dissenting
member is to be so paid, it may appoint one or more persons as
appraisers to receive evidence as to the fair cash value and to
make recommendations to the court relative to the amount of the
fair cash value. The appraisers shall have the power and
authority that the court specifies in the order of appointment,
and the court shall fix reasonable compensation for their
services. After receiving the recommendations of any appointed
appraisers or if appraisers are not appointed, the court shall
make findings as to the fair cash value of the membership
interests and render judgment against the limited liability
company for the payment of that fair cash value and interest at
the rate and from the date that the court considers equitable.
The costs of the proceeding, including reasonable compensation to
any appraisers as fixed by the court, shall be assessed or
apportioned as the court considers equitable. (3) The proceeding described in this section 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 described in this section, an action or proceeding is
commenced to enjoin or otherwise prevent the carrying out of the
merger or consolidation or other action as to which the member
has dissented, the proceeding commenced under this section shall
be stayed until the final determination of the other action or
proceeding. (4) Unless division (G) of section 1705.41 of the Revised
Code is applicable, the fair cash value of the membership
interests that is agreed upon by the dissenting member and the
limited liability company or fixed by a court in a proceeding
under this section shall be paid within thirty days after the
later of the final determination of the fair cash value in a
proceeding under this section or the date of the consummation of
the merger or, consolidation, or conversion. Upon the occurrence of the later
event, payment of the fair cash value shall be made to those
entitled to the payment as follows: (a) Immediately to the holders of uncertificated
membership interests; (b) Upon and simultaneously with the surrender to the
limited liability company of certificates representing the
membership interests to the holders of certificated membership
interests. (B) If the proposal of merger or, consolidation proposal, or conversion was submitted
to the members of a domestic limited liability company at a
meeting, the fair cash value of the membership interests as to
any of those members that seek relief shall be determined as of
the day before the day on which the vote on the proposal was
taken. If the proposal of merger or, consolidation proposal, or conversion was submitted to
the members of a domestic limited liability company for written
approval or other action without a meeting, the fair cash value
of the membership interests as to which those members seek relief
shall be determined as of the day before the day on which the
request for approval or other action was sent. The fair cash value of a membership 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 member shall
not exceed the amount specified in the demand for payment of that
member. In computing the fair cash value of a membership
interest, any appreciation or depreciation in market value
resulting from the merger or, consolidation, or conversion shall be excluded.
Sec. 1705.61. (A) Absent an express agreement to the contrary, a person providing goods to or performing services for a limited liability company owes no duty to, incurs no liability or obligation to, and is not in privity with the members or creditors of the limited liability company by reason of providing goods to or performing services for the limited liability company. (B) Absent an express agreement to the contrary, a person providing goods to or performing services for a member or group of members of a limited liability company owes no duty to, incurs no liability or obligation to, and is not in privity with the limited liability company, any other members of the limited liability company, or the creditors of the limited liability company by reason of providing goods to or performing services for the limited liability company. Sec. 1707.01. As used in this chapter: (A) Whenever the context requires it, "division" or
"division of securities" may be read as "director of commerce" or
as "commissioner of securities." (B) "Security" means any certificate or instrument, or any oral, written, or electronic agreement, understanding, or opportunity, that
represents title to or interest in, or is secured by any lien or
charge upon, the capital, assets, profits, property, or credit of
any person or of any public or governmental body, subdivision, or
agency. It includes shares of stock, certificates for shares of
stock, an uncertificated security, membership interests in limited liability companies,
voting-trust certificates, warrants and options to purchase
securities, subscription rights, interim receipts, interim
certificates, promissory notes, all forms of commercial paper,
evidences of indebtedness, bonds, debentures, land trust
certificates, fee certificates, leasehold certificates, syndicate
certificates, endowment certificates, interests in or under profit-sharing or participation
agreements, interests in or under oil, gas, or mining leases, preorganization or reorganization
subscriptions,
preorganization certificates, reorganization
certificates,
interests in any trust or
pretended
trust, any investment contract, any life settlement
interest, any
instrument evidencing a promise or an agreement to
pay money,
warehouse receipts for intoxicating liquor, and the currency of
any
government other than those of the United States and Canada,
but
sections 1707.01 to 1707.45 of the Revised Code do not apply
to
the sale of real estate. (C)(1) "Sale" has the full meaning of "sale" as applied by
or accepted in courts of law or equity, and includes every
disposition, or attempt to dispose, of a security or of an
interest in a security. "Sale" also includes a contract to sell,
an exchange, an attempt to sell, an option of sale, a
solicitation
of a sale, a solicitation of an offer to buy, a
subscription, or
an offer to sell, directly or indirectly, by
agent, circular,
pamphlet, advertisement, or otherwise. (2) "Sell" means any act by which a sale is made. (3) The use of advertisements, circulars, or pamphlets in
connection with the sale of securities in this state exclusively
to the purchasers specified in division (D) of section 1707.03 of
the Revised Code is not a sale when the advertisements,
circulars,
and pamphlets describing and offering those securities
bear a
readily legible legend in substance as follows: "This
offer is
made on behalf of dealers licensed under sections
1707.01 to
1707.45 of the Revised Code, and is confined in this
state
exclusively to institutional investors and licensed
dealers." (4) The offering of securities by any person in
conjunction
with a licensed dealer by use of advertisement,
circular, or
pamphlet is not a sale if that person does not
otherwise attempt
to sell securities in this state. (5) Any security given with, or as a bonus on account of,
any purchase of securities is conclusively presumed to constitute
a part of the subject of that purchase and has been "sold." (6) "Sale" by an owner, pledgee, or mortgagee, or by a
person acting in a representative capacity, includes sale on
behalf of such party by an agent, including a licensed dealer or
salesperson. (D) "Person," except as otherwise provided in this
chapter,
means a natural person, firm, partnership,
limited partnership,
partnership association, syndicate,
joint-stock company,
unincorporated association, trust or trustee
except where the
trust was created or the trustee designated by
law or judicial
authority or by a will, and a corporation or
limited liability
company organized under the laws of any state,
any foreign
government, or any political subdivision of a state
or foreign
government. (E)(1) "Dealer," except as otherwise provided in this
chapter, means every person, other than a salesperson,
who engages
or professes to engage, in this state, for either all or part of
the person's time, directly or indirectly, either in the business
of the sale of securities for the person's own account, or in the
business
of the purchase or sale of securities for the account of
others in the
reasonable expectation of receiving a commission,
fee, or other
remuneration as a result of engaging in the purchase
and sale of
securities. "Dealer" does not mean any of the
following: (a) Any issuer, including any officer, director, employee,
or trustee of, or member or manager of, or partner in, or any
general partner of, any
issuer, that sells, offers for sale, or
does any act in
furtherance of the sale of a security that
represents an economic
interest in that issuer, provided no
commission, fee, or other
similar remuneration is paid to or
received by the issuer for the
sale; (b) Any licensed attorney, public accountant, or firm of
such attorneys or accountants, whose activities are incidental to
the practice of the attorney's, accountant's, or firm's
profession; (c) Any person that, for the account of others, engages in
the purchase or sale of securities that are issued and
outstanding
before such purchase and sale, if a majority or more
of the equity
interest of an issuer is sold in that transaction,
and if, in the
case of a corporation, the securities sold in that
transaction
represent a majority or more of the voting power of
the
corporation in the election of directors; (d) Any person that brings an issuer together with a
potential investor and whose compensation is not directly or
indirectly based on the sale of any securities by the issuer to
the investor; (e) Any bank; (f) Any person that the division of securities by rule
exempts from the definition of "dealer" under division (E)(1) of
this section. (2) "Licensed dealer" means a dealer licensed under
this
chapter. (F)(1) "Salesman" or "salesperson" means every natural
person,
other than a dealer, who is employed, authorized, or
appointed by a dealer to
sell securities within this state. (2) The general partners of a partnership, and the
executive
officers of a corporation or unincorporated
association, licensed
as a dealer are not salespersons
within the meaning of this
definition, nor are such clerical or other
employees of an issuer
or dealer as that are employed for work to
which the sale of securities
is secondary and incidental; but the
division of securities may
require a license from any such
partner, executive officer, or
employee if it determines that
protection of the public
necessitates the licensing. (3) "Licensed salesperson" means a
salesperson licensed
under this chapter. (G) "Issuer" means every person who has issued, proposes
to
issue, or issues any security. (H) "Director" means each director or trustee of a
corporation, each trustee of a trust, each general partner of a
partnership, except a partnership association, each manager of a
partnership association, and any person vested with managerial or
directory power over an issuer not having a board of directors or
trustees. (I) "Incorporator" means any incorporator of a corporation
and any organizer of, or any person participating, other than in
a
representative or professional capacity, in the organization of
an
unincorporated issuer. (J) "Fraud," "fraudulent," "fraudulent acts," "fraudulent
practices," or
"fraudulent transactions" means anything recognized
on or after
July 22, 1929, as such in courts of law or equity; any
device,
scheme, or artifice to defraud or to obtain money or
property by
means of any false pretense, representation, or
promise; any
fictitious or pretended purchase or sale of
securities; and any
act, practice, transaction, or course of
business relating to the
purchase or sale of securities that is
fraudulent or that has operated
or
would operate as a fraud upon
the seller or purchaser. (K) Except as otherwise specifically provided, whenever
any
classification or computation is based upon "par value," as
applied to securities without par value, the average of the
aggregate consideration received or to be received by the issuer
for each class of those securities shall be used as the basis for
that classification or computation. (L)(1) "Intangible property" means patents, copyrights,
secret processes, formulas, services, good will, promotion and
organization fees and expenses, trademarks, trade brands, trade
names, licenses, franchises, any other assets treated as
intangible according to generally accepted accounting principles,
and securities, accounts receivable, or contract rights having no
readily determinable value. (2) "Tangible property" means all property other than
intangible property and includes securities, accounts receivable,
and contract rights, when the securities, accounts receivable, or
contract rights have a readily determinable value. (M) "Public utilities" means those utilities defined in
sections 4905.02, 4905.03, 4907.02, and 4907.03 of the Revised
Code; in the case of a foreign corporation, it means those
utilities defined as public utilities by the laws of its
domicile;
and in the case of any other foreign issuer, it means
those
utilities defined as public utilities by the laws of the
situs of
its principal place of business. The term always
includes
railroads whether or not they are so defined as public
utilities. (N) "State" means any state of the United States, any
territory or possession of the United States, the District of
Columbia, and any province of Canada. (O) "Bank" means any bank, trust company, savings and loan
association, savings bank, or credit union that is
incorporated or
organized
under the laws of the United States, any state of the
United
States, Canada, or any province of Canada and that is
subject to
regulation or supervision by that country, state, or
province. (P) "Include," when used in a definition, does not exclude
other things or persons otherwise within the meaning of the term
defined. (Q)(1) "Registration by description" means that the
requirements of section 1707.08 of the Revised Code have been
complied with. (2) "Registration by qualification" means that the
requirements of sections 1707.09 and 1707.11 of the Revised Code
have been complied with. (3) "Registration by coordination" means that there has
been
compliance with section 1707.091 of the Revised Code.
Reference in
this chapter to registration by qualification also
shall be deemed
to include includes registration by coordination unless
the context
otherwise indicates. (R) "Intoxicating liquor" includes all liquids and
compounds
that contain more than three and two-tenths per cent of
alcohol by
weight and are fit for use for beverage purposes. (S) "Institutional investor" means any corporation, bank,
insurance company, pension fund or pension fund trust, employees'
profit-sharing fund or employees' profit-sharing trust, any
association engaged, as a substantial part of its business or
operations, in purchasing or holding securities, or any trust in
respect of which a bank is trustee or cotrustee. "Institutional
investor" does not include any business entity formed for the
primary purpose of evading sections 1707.01 to 1707.45 of the
Revised Code. (T) "Securities Act of 1933," 48 Stat. 74, 15 U.S.C.
77a,
"Securities Exchange Act of 1934," 48 Stat. 881,
15 U.S.C. 78a,
"Internal Revenue Code of
1986," 100 Stat. 2085, 26 U.S.C. 1,
"Investment Advisers
Act of 1940," 54 Stat. 847, 15 U.S.C. 80b,
and
"Investment Company Act of 1940," 54 Stat.
789, 15 U.S.C. 80a
mean the federal
statutes of those names as amended before or
after March 18, 1999 A reference to a statute of the United States or to a rule, regulation, or form promulgated by the securities and exchange commission or by another federal agency means the statute, rule, regulation, or form as it exists at the time of the act, omission, event, or transaction to which it is applied under this chapter. (U) "Securities and exchange commission" means the
securities and exchange commission established by the Securities
Exchange Act of 1934. (V)(1) "Control bid" means the purchase of or offer to
purchase any equity security of a subject company from a resident
of this state if either of the following applies: (a) After the purchase of that security, the offeror would
be directly or indirectly the beneficial owner of more than ten
per cent of any class of the issued and outstanding equity
securities of the issuer. (b) The offeror is the subject company, there is a pending
control bid by a person other than the issuer, and the number of
the issued and outstanding shares of the subject company would be
reduced by more than ten per cent. (2) For purposes of division (V)(1) of this section,
"control bid" does not include any of the following: (a) A bid made by a dealer for the dealer's own account in
the
ordinary course of business of buying and selling securities; (b) An offer to acquire any equity security solely in
exchange for any other security, or the acquisition of any equity
security pursuant to an offer, for the sole account of the
offeror, in good faith and not for the purpose of avoiding the
provisions of this chapter, and not involving any public offering
of the other security within the meaning of Section 4 of Title I
of the "Securities Act of 1933," 48 Stat. 77, 15 U.S.C.A. 77d(2),
as amended; (c) Any other offer to acquire any equity security, or the
acquisition of any equity security pursuant to an offer, for the
sole account of the offeror, from not more than fifty persons, in
good faith and not for the purpose of avoiding the provisions of
this chapter. (W) "Offeror" means a person who makes, or in any way
participates or aids in making, a control bid and includes
persons
acting jointly or in concert, or who intend to exercise
jointly or
in concert any voting rights attached to the
securities for which
the control bid is made and also includes
any subject company
making a control bid for its own securities. (X)(1) "Investment adviser" means any person
who, for
compensation, engages in the business of advising
others, either
directly or through publications or writings, as
to the value of
securities or as to the advisability of investing
in, purchasing,
or selling securities, or who, for compensation
and as a part of
regular business, issues or promulgates analyses
or reports
concerning securities. (2) "Investment adviser" does not mean any of the following: (a) Any attorney, accountant, engineer, or teacher, whose
performance of
investment advisory services described in division
(X)(1) of this
section is solely incidental to the practice of the
attorney's,
accountant's, engineer's, or teacher's profession; (b) A publisher of any bona fide
newspaper, news magazine,
or business or financial publication of
general and regular
circulation; (c) A person who acts solely as an investment adviser
representative; (d) A bank holding company, as defined in the "Bank
Holding
Company Act of 1956," 70 Stat.
133, 12 U.S.C. 1841, that is not an
investment
company; (e) A bank, or any receiver, conservator, or other
liquidating
agent of a bank; (f) Any licensed dealer or licensed salesperson whose
performance
of investment advisory services described in division
(X)(1) of this
section is solely incidental to the conduct of the
dealer's or salesperson's
business as a licensed dealer or
licensed salesperson and who receives no
special compensation for
the services; (g) Any person, the advice, analyses, or reports of which do
not
relate to securities other than securities that are direct
obligations of, or
obligations guaranteed as to principal or
interest by, the United
States, or securities issued or guaranteed
by corporations in which
the United States has a direct or
indirect interest, and
that have been designated by the secretary
of the treasury as exempt
securities as defined in the "Securities
Exchange
Act of 1934," 48 Stat. 881, 15 U.S.C. 78c; (h) Any person that is excluded from the definition of
investment adviser pursuant to section
202(a)(11)(A) to (E) of the
"Investment Advisers Act of 1940," 15 U.S.C.
80b-2(a)(11), or that
has received an
order from the securities and exchange commission
under section
202(a)(11)(F) of the "Investment Advisers Act of
1940," 15 U.S.C.
80b-2(a)(11)(F), declaring that the person is not
within the intent of section
202(a)(11) of the Investment Advisers
Act of 1940. (i) A person who acts solely as a state retirement system investment officer or as a bureau of workers' compensation chief investment officer; (j) Any other person that the division designates by rule,
if the
division finds that the designation is necessary or
appropriate in the public
interest or for the protection of
investors or clients and consistent with the
purposes fairly
intended by the policy and provisions of this chapter. (Y)(1) "Subject company" means an issuer that satisfies
both
of the following: (a) Its principal place of business or its principal
executive office is located in this state, or it owns or controls
assets located within this state that have a fair market value of
at least one million dollars. (b) More than ten per cent of its beneficial or record
equity security holders are resident in this state, more than ten
per cent of its equity securities are owned beneficially or of
record by residents in this state, or more than one thousand of
its beneficial or record equity security holders are resident in
this state. (2) The division of securities may adopt rules to
establish
more specific application of the provisions set forth
in division
(Y)(1) of this section. Notwithstanding the
provisions set forth
in division (Y)(1) of this section and any
rules adopted under
this division, the division, by rule or in an
adjudicatory
proceeding, may make a determination that an issuer
does not
constitute a "subject company" under division (Y)(1) of
this
section if appropriate review of control bids involving the
issuer
is to be made by any regulatory authority of another
jurisdiction. (Z) "Beneficial owner" includes any person who directly or
indirectly through any contract, arrangement, understanding, or
relationship has or shares, or otherwise has or shares, the power
to vote or direct the voting of a security or the power to
dispose
of, or direct the disposition of, the security.
"Beneficial
ownership" includes the right, exercisable within
sixty days, to
acquire any security through the exercise of any
option, warrant,
or right, the conversion of any convertible
security, or
otherwise. Any security subject to any such option,
warrant,
right, or conversion privilege held by any person shall
be deemed
to be outstanding for the purpose of computing the
percentage of
outstanding securities of the class owned by that
person, but
shall not be deemed to be outstanding for the purpose
of computing
the percentage of the class owned by any other
person. A person
shall be deemed the beneficial owner of any
security beneficially
owned by any relative or spouse or relative
of the spouse residing
in the home of that person, any trust or
estate in which that
person owns ten per cent or more of the
total beneficial interest
or serves as trustee or executor, any
corporation or entity in
which that person owns ten per cent or
more of the equity, and any
affiliate or associate of that
person. (AA) "Offeree" means the beneficial or record owner of any
security that an offeror acquires or offers to acquire in
connection with a control bid. (BB) "Equity security" means any share or similar
security,
or any security convertible into any such security, or
carrying
any warrant or right to subscribe to or purchase any
such
security, or any such warrant or right, or any other
security
that, for the protection of security holders, is treated
as an
equity security pursuant to rules of the division of
securities. (CC)(1) "Investment adviser representative" means a
supervised
person of an investment adviser, provided that
the
supervised
person has more than five clients who are
natural
persons other
than excepted persons defined in division
(EE)
of
this section,
and that more than ten per cent of the
supervised
person's clients
are natural persons other than excepted persons
defined in
division
(EE) of this section. "Investment adviser
representative" does not mean any of the following: (a) A supervised person that does not on a regular basis
solicit,
meet with, or otherwise communicate with clients of the
investment adviser; (b) A supervised person that provides only investment
advisory
services described in division (X)(1) of this section by
means of
written materials or oral statements that do not purport
to meet the
objectives or needs of specific individuals or
accounts; (c) Any other person that the division designates
by rule,
if the division finds that the designation is necessary
or
appropriate in the public interest or for the protection of
investors or clients and is consistent with the provisions
fairly
intended by the policy and provisions of this
chapter. (2) For the purpose of the calculation of clients in
division
(CC)(1) of this section, a
natural person and the
following persons are deemed a single
client: Any minor child of
the natural person; any relative,
spouse, or relative of the
spouse of the natural person who has
the same principal residence
as the natural person; all accounts
of which the natural person or
the persons referred to in
division
(CC)(2) of this
section
are
the only primary beneficiaries; and all trusts of
which the
natural person or persons referred to in division
(CC)(2) of
this
section are the
only primary beneficiaries. Persons who are
not
residents of the
United States
need not be included in the
calculation of clients
under division
(CC)(1) of this section. (3) If subsequent to March 18, 1999, amendments are enacted
or adopted defining "investment adviser representative" for
purposes of the
Investment
Advisers Act of 1940 or additional
rules
or regulations are promulgated by the securities and
exchange
commission regarding the definition of "investment
adviser
representative" for purposes of the
Investment Advisers
Act of 1940, the division of
securities shall, by rule, adopt the
substance of the
amendments, rules, or regulations, unless the
division finds
that the amendments, rules, or regulations are not
necessary for
the protection of investors or in the public
interest. (DD) "Supervised person" means a natural person who is
any
of the
following: (1) A partner, officer, or director of an investment
adviser, or other
person occupying a similar status or performing
similar functions with respect
to an investment adviser; (2) An employee of an investment adviser; (3) A person who provides investment advisory services
described in
division (X)(1) of this section on behalf of the
investment adviser
and is subject to the supervision and control
of the investment adviser. (EE) "Excepted person" means a natural person to whom
any of
the following applies: (1) Immediately after entering into the investment advisory
contract with
the investment adviser, the person has at least
seven hundred fifty thousand
dollars
under the management of the
investment adviser. (2) The investment adviser reasonably believes either of the
following at
the time the investment advisory contract is entered
into with the person: (a) The person has a net
worth, together with assets held
jointly with a spouse, of more than one
million five hundred
thousand dollars. (b) The person is a qualified purchaser as
defined in
division (FF)
of this section. (3) Immediately prior to entering into an investment
advisory contract with the investment adviser, the person is
either of the following: (a) An executive officer, director,
trustee, general
partner, or person serving in a similar
capacity, of the
investment adviser; (b) An employee of the investment
adviser, other than an
employee performing solely clerical,
secretarial, or
administrative functions or duties for the
investment adviser,
which employee, in connection with the
employee's regular
functions or duties, participates in the
investment activities of
the investment adviser, provided that,
for at least twelve months,
the employee has been performing
such nonclerical, nonsecretarial,
or nonadministrative functions
or duties for or on behalf of the
investment adviser or
performing substantially similar functions
or duties for or on
behalf of another company. If subsequent to March 18, 1999,
amendments are enacted or
adopted defining "excepted person" for
purposes of the Investment
Advisers Act of 1940 or additional rules
or regulations are
promulgated by the securities and exchange
commission regarding
the definition of "excepted person" for
purposes of the Investment
Advisers
Act of 1940, the division of
securities shall, by rule,
adopt the substance of the
amendments, rules, or regulations,
unless the division finds
that the amendments, rules, or
regulations are not necessary for
the protection of investors or
in the public interest. (FF)(1) "Qualified purchaser" means either of the
following: (a) A natural person who owns
not less than five million
dollars in investments as defined by
rule by the division of
securities; (b) A natural person, acting for
the person's own account or
accounts of other qualified
purchasers, who in the aggregate owns
and invests on a
discretionary basis, not less than twenty-five
million dollars
in investments as defined by rule by the division
of
securities. (2) If subsequent to March 18, 1999, amendments are
enacted
or adopted defining "qualified purchaser" for purposes of the
Investment Advisers Act of 1940 or additional rules
or regulations
are promulgated by the securities and exchange
commission
regarding the definition of "qualified purchaser" for
purposes of
the Investment Advisers Act of 1940, the division of
securities
shall, by rule, adopt the amendments, rules, or
regulations,
unless the division finds that the amendments,
rules, or
regulations are not necessary for the protection of
investors or
in the public interest. (GG)(1) "Purchase" has the full meaning of "purchase" as
applied
by or accepted in courts of law or equity and includes
every acquisition of,
or attempt to acquire, a security or an
interest in a security. "Purchase"
also includes a contract to
purchase, an exchange, an attempt to purchase, an
option to
purchase, a solicitation of a purchase, a
solicitation of an offer
to sell, a subscription, or an offer to purchase,
directly or
indirectly, by agent, circular, pamphlet, advertisement, or
otherwise. (2) "Purchase" means any act by which a purchase is made. (3) Any security given with, or as a bonus on account of,
any purchase of
securities is conclusively presumed to constitute
a part of the subject of
that purchase. (HH) "Life settlement interest" means the entire
interest or
any fractional interest in an insurance policy or
certificate of
insurance, or in an insurance benefit under such a
policy or
certificate,
that is the subject of a life settlement
contract. For purposes of this division, "life settlement contract"
means an
agreement for the purchase, sale, assignment, transfer,
devise, or
bequest of any portion of the death benefit or
ownership of any life
insurance policy or contract, in return for
consideration or any other
thing of value that is less than the
expected death benefit of the
life insurance policy or contract.
"Life settlement contract"
includes a viatical settlement contract
as defined in section
3916.01 of the Revised Code, but does not
include any of the
following: (1) A loan by an insurer under the terms of a life insurance
policy, including, but not limited to, a loan secured by the cash
value of
the policy; (2) An agreement with a bank that takes an assignment of a
life
insurance policy as collateral for a loan; (3) The provision of accelerated benefits as defined in
section
3915.21 of the Revised Code; (4) Any agreement between an insurer and a reinsurer; (5) An agreement by an individual to purchase an existing
life
insurance policy or contract from the original owner of the
policy
or contract, if the individual does not enter into more
than one
life settlement contract per calendar year; (6) The initial purchase of an insurance policy or
certificate of
insurance from its owner by a viatical settlement
provider, as defined
in section 3916.01 of the Revised Code, that
is
licensed under
Chapter 3916. of the Revised
Code. (II) "State retirement system" means the public employees retirement system, Ohio police and fire pension fund, state teachers retirement system, school employees retirement system, and state highway patrol retirement system.
(JJ) "State retirement system investment officer" means an individual employed by a state retirement system as a chief investment officer, assistant investment officer, or the person in charge of a class of assets or in a position that is substantially equivalent to chief investment officer, assistant investment officer, or person in charge of a class of assets. (KK) "Bureau of workers' compensation chief investment officer" means an individual employed by the bureau of workers' compensation as a chief investment officer in a position that is substantially equivalent to a chief investment officer.
Sec. 1707.041. (A)(1) No control bid for any securities
of
a subject company shall be made pursuant to a tender offer or
request or invitation for tenders until the offeror files with
the
division of securities the information prescribed in division
(A)(2) of this section. The offeror shall deliver a copy of the
information specified in division (A)(2) of this section, by
personal service, to the subject company at its principal office
not later than the time of the filing with the division. The
offeror shall send or deliver to all offerees in
this state, as
soon as practicable after the filing, the material
terms of the
proposed offer and the information specified in
division (A)(2) of
this section. (2) The information to be filed with the division, with the
subject company, and with any other offeror,
pursuant to
division
(A)(1) of this section, shall
include: (a) Copies of all prospectuses, brochures, advertisements,
circulars, letters, or other matter by means of which the offeror
proposes to disclose to offerees all information material to a
decision to accept or reject the offer; (b) The identity and background of all persons on whose
behalf the acquisition of any equity security of the
subject
company has been or is to be effected; (c) The source and amount of funds or other consideration
used or to be used in acquiring any equity security, including a
statement describing any securities, other than the existing
capital stock or long term debt of the offeror, which are being
offered in exchange for the equity securities of the subject
company; (d) A statement of any plans or proposals that the
offeror,
upon gaining control, may have to liquidate the subject
company,
sell its assets, effect a merger or consolidation of it,
establish, terminate, convert, or amend employee benefit plans,
close any plant or facility of the subject company or of any of
its subsidiaries or affiliates, change or reduce the work force
of
the subject company or any of its subsidiaries or affiliates,
or
make any other major change in its business, corporate
structure,
management personnel, or policies of employment; (e) The number of shares of any equity security of the
subject company of which each offeror is beneficial or record
owner or has a right to acquire, directly or indirectly, together
with the name and address of each person defined in this section
as an offeror; (f) Particulars as to any contracts, arrangements, or
understandings to which an offeror is party with respect to any
equity security of the subject company, including transfers of
any
equity security, joint ventures, loan or option arrangements,
puts
and calls, guarantees of loan, guarantees against loss,
guarantees
of profits, division of losses or profits, or the
giving or
withholding of proxies, naming the persons with whom
such
contracts, arrangements, or understandings have been entered
into; (g) Complete information on the organization and
operations
of
the offeror, including the year of organization; the
form of
organization; the jurisdiction in which it is organized;
a
description of each class of the offeror's capital stock and of
its long term debt; financial statements for the current period
and for the three most recent annual accounting periods,
unless
the division by rule determines that the financial statements are
not material or permits the filing of financial statements for
less than the three most recent annual accounting periods; a brief
description of the location and general character of the
principal
physical properties of the offeror and its
subsidiaries; a
description of pending legal proceedings other
than routine
litigation to which the offeror or any of its
subsidiaries is a
party or of which any of their property is the
subject; a brief
description of the business done and projected
by the offeror and
its subsidiaries and the general development
of such business over
the past three years; the names of all
directors and executive
officers together with biographical
summaries of each for the
preceding three years to date; and the
approximate amount of any
material interest, direct or indirect,
of any of the directors or
officers in any material transaction
during the past three years,
or in any proposed material
transactions, to which the offeror or
any of its subsidiaries was
or is to be a party; (h) Such other and further documents, exhibits, data, and
information as may be required by regulations of the division, or
as may be necessary to make fair, full, and
effective disclosure
to offerees of all information material to a
decision to accept or
reject the offer. (3) Within five calendar days of the date of filing by an
offeror of information specified in division (A)(2) of this
section, the division
may by order summarily
suspend
the
continuation of the control bid if the division
determines
that
all of the information specified has not been
provided by the
offeror or that the control bid materials
provided to offerees do
not provide full disclosure to offerees
of all material
information concerning the control bid. Such a
suspension shall
remain in effect only until the determination
following a hearing
held pursuant to division (A)(4) of this
section. (4) A hearing shall be scheduled and held by the division
with respect to each suspension imposed under
division
(A)(3) of
this section. The hearing shall be held
within ten
calendar days
of the date on which the suspension is
imposed.
Chapter 119. of
the Revised Code does not apply to a
hearing held
under this
division (A)(4) of this section. The division
may
allow any
interested party to appear
at and participate in the
hearing in a
manner considered
appropriate by the division. The
determination
of the division
made following the
hearing shall be
made within three calendar
days after the
hearing has been
completed, and no later than
fourteen
calendar
days after the date
on which the suspension is
imposed. The
division,
by rule or order, may prescribe time
limits for conducting the
hearing and for the making of the
determination that are shorter
than those specified in this
division. If, based upon the
hearing, the division
determines
that all of the
information required to be provided by
division
(A)(2) of this
section has not been provided by the
offeror, that
the control bid
materials provided to offerees do
not provide full
disclosure to
offerees of all material
information concerning the
control bid,
or that the control bid
is in material violation of
any provision
of this chapter, the
division shall maintain the
suspension of the
continuation of the
control bid, subject to the
right of the
offeror to correct
disclosure and other deficiencies
identified by
the division and
to reinstitute the control bid by
filing new or
amended
information pursuant to this section. (5)(a) If an offeror increases or decreases the percentage of the class of securities being sought, the consideration offered, or the dealer's soliciting fee in connection with a control bid for any securities of a subject company pursuant to a tender offer or request or invitation for tenders, or makes any other change in the terms or conditions of the tender offer or request or invitation for tenders that requires the offeror to hold the tender offer or request or invitation for tenders open for at least ten business days from the date that notice of the change is first published or sent to security holders in this state, the offeror shall file with the division both of the following: (i) All material information, including all information sent or otherwise provided to offerees in this state, pertaining to the increase, decrease, or other change;
(ii) All material information required to update the information filed with the division pursuant to division (A)(2) of this section.
(b) The offeror shall file the information described in division (A)(5)(a) with the division not later than the date on which the information regarding the increase, decrease, or other change first is published or sent to offerees in this state. The offeror shall deliver a copy of the information, by personal services, to the subject company at its principal office not later than the time of the filing with the division.
(6) Within three calendar days of the date of filing by an offeror of the information specified in division (A)(5) of this section, the division, by order, may summarily suspend the continuation of the control bid if the division determines that all of the information specified has not been provided by the offeror or that the information provided to offerees does not provide full disclosure to offerees of all material information concerning the increase, decrease, or other change. The suspension shall remain in effect only until the determination following a hearing held pursuant to division (A)(7) of this section.
(7) The division shall schedule and hold, within three calendar days of the date on which the suspension is imposed, a hearing with respect to each suspension imposed under division (A)(6) of this section. Chapter 119. of the Revised Code does not apply to a hearing held under division (A)(7) of this section. The division may allow any interested party to appear at and participate in the hearing in a manner considered appropriate by the division. The division shall make a determination following the hearing within three calendar days after the hearing has been completed, and not later than nine calendar days after the date on which the information regarding the increase, decrease, or other change first is published or sent to offerees in this state. The division, by rule or order, may prescribe time limits for conducting the hearing and for the making of the determination that are shorter than those specified in this division. If, based upon the hearing, the division determines that all of the information required to be provided by division (A)(5) of this section has not been provided by the offeror; that the information provided to offerees does not provide full disclosure to offerees of all material information concerning the increase, decrease, or other change; or that the control bid is in material violation of any provision of this chapter, the division shall maintain the suspension of the continuation of the control bid, subject to the right of the offeror to correct disclosure and other deficiencies identified by the division and to reinstate the control bid by filing new or amended information pursuant to this section. (B)(1) No control bid shall be made pursuant to a tender
offer or request or invitation for tenders unless division (A) of
section 1707.14 of the Revised Code has been complied with, and
no
offeror shall make a control bid that is not made to all
holders
residing in this state of the equity security that is the
subject
of the control bid, or that is not made to such holders
on the
same terms as the control bid is made to holders of such
equity
security not residing in this state. (2) No offeror may make a control bid pursuant to a tender
offer or request or invitation for tenders or acquire any equity
security in this state pursuant to a control bid at any time
during which any proceeding by the division alleging a violation
of any provision of this chapter is pending against the offeror. (3) No offeror may acquire from any resident of this state,
in any manner, any equity security of any class of a subject
company at any time within two years following the last
acquisition of any security of the same class pursuant to a
control bid pursuant to a tender offer or request or invitation
for tenders by that offeror, whether the acquisition was made by
purchase, exchange, merger, consolidation, partial or complete
liquidation, redemption, reverse stock split, recapitalization,
reorganization, or any other similar transaction, unless the
resident is afforded, at the time of the later acquisition, a
reasonable opportunity to dispose of the security to the offeror
upon substantially the same terms as those provided in the
earlier
control bid. (4) If an offeror makes a tender offer or request or
invitation for tenders not subject to Rule 14D-1 or Rule 14D-4 of
the securities and exchange commission under the
"Securities
Exchange Act of 1934," for less than all the outstanding equity
securities of a class, and if a greater number of securities is
deposited pursuant thereto within ten days after copies of the
offer or request or invitation for tenders are first published or
sent or given to security holders than the offeror is bound or
willing to take up and pay for, the securities shall be taken up
as nearly as may be pro rata, disregarding fractions, according
to
the number of securities deposited by each offeree. The
preceding
sentence applies to securities deposited within ten
days after
notice of an increase in the consideration offered to
security
holders, as described in the next sentence, is first
published or
sent or given to security holders. If the terms of
a control bid
are changed before its expiration by increasing the
consideration
offered to offerees, the offeror shall pay the
increased
consideration for all equity securities taken up,
whether the same
are deposited or taken up before or after the
change in the terms
of the control bid. (C) If the offeror or the subject company is a banking
corporation
or
savings and loan association subject to regulation
by the
division
of
financial institutions, or is a
public utility
corporation subject to regulation by the public
utilities
commission, the division of securities shall
immediately, upon
receipt of the filing required under division
(A) of this
section,
furnish a copy of the filing to the
regulatory body
having
jurisdiction over the offeror or subject
company. (D) An offeror is subject to the liabilities and penalties
applicable to a seller, and an offeree is entitled to the
remedies
applicable to a purchaser, as set forth in sections
1707.041 to
1707.44 of the Revised Code. (E) The division of securities may, pursuant to
Chapter 119.
of the Revised Code, prescribe reasonable rules: (1) Defining fraudulent, evasive, deceptive, or grossly
unfair practices in connection with control bids, and defining the terms
used in this section; (2) Exempting from this section control bids not made for
the purpose of, and not having the effect of, changing or
influencing the control of a subject company; (3) Covering such other matters as are necessary to give
effect to this section. (F) If the offeror or a subject company is an insurance
company subject to regulation under Title XXXIX of the Revised
Code, the superintendent of insurance shall for all purposes of
this section be substituted for the division of securities. This
section shall not be construed to limit or modify in any way any
responsibility, authority, power, or jurisdiction of the division
of securities or the superintendent of insurance pursuant to any
other section of the Revised Code. (G) This section does not apply when: (1) The offeror or the subject company is a public utility
or a public utility holding company as defined in section 2 of
the
"Public Utility Holding Company Act of 1935," 49 Stat. 803,
15
U.S.C. 79, as amended, and the control bid is subject to
approval
by the appropriate federal agency as provided in such
act; (2) The offeror or the subject company is a bank or a bank
holding company as subject to the
"Bank Holding Company Act of
1956," 70 Stat. 133, 12 U.S.C. 1841, and subsequent amendments
thereto, and the control bid is subject to approval by the
appropriate federal agency as provided in such act; (3) The offeror or the subject company is a savings and
loan
holding company as defined in section 2 of the
"Savings and
Loan
Holding Company Amendments of 1967," 82 Stat. 5, 12 U.S.C.
1730a,
as amended, and the control bid is subject to approval by
the
appropriate federal agency as provided in such act; (4) The offeror and the subject company are banks and the
offer is part of a merger transaction subject to approval by
appropriate federal supervisory authorities. (H) If any application of any provision of this section is
for any reason held to be illegal or invalid, the illegality or
invalidity shall not affect any legal and valid provision or
application of this section, and the parts and application of
this
section are severable.
Sec. 1707.142. (A) Every dealer required to be licensed under section 1707.14 of the Revised Code shall comply with all broker and dealer capital, custody, margin, financial responsibility, record-making, record-keeping, bonding, financial reporting, and operational reporting requirements contained in Section 15 of the "Securities Exchange Act of 1934," 48 Stat. 881, 15 U.S.C. 78o, as amended, and section 17 of the "Securities Exchange Act of 1934," 48 Stat. 881, 15 U.S.C. 78q, as amended, and the rules of the securities and exchange commission promulgated under those sections.
(B)(1) Subject to division (B)(2) of this section, every dealer required to be licensed under section 1707.14 of the Revised Code shall file with the division of securities any report or document that rules adopted pursuant to section 15 of the "Securities Exchange Act of 1934," 48 Stat. 881, 15 U.S.C. 78o, as amended, and section 17 of the "Securities Exchange Act of 1934," 48 Stat. 881, 15 U.S.C. 78q, as amended, require federally registered brokers or dealers to file with the securities and exchange commission.
(2) Except as otherwise provided by rule or order of the division, if a dealer has filed a report or document described in division (B)(1) of this section with the securities and exchange commission, the document or report shall be deemed to also have been filed with the division.
(C) The division by order or rule may permit, but not require, a dealer that is not required by federal law or the law of this state to register as a broker or dealer with the securities and exchange commission to do both of the following:
(1) Elect one or more alternative financial and reporting provisions that are acceptable to the division. For purposes of division (C)(1) of this section, "alternative financial and reporting provision" means any capital, custody, margin, financial responsibility, record-making, record-keeping, bonding, financial reporting, or operational reporting provision that differs from those established by the securities and exchange commission.
(2) Elect an exemption, the scope of which is acceptable to the division, from all or a specified part of the capital, custody, margin, financial responsibility, record-making, record-keeping, bonding, financial reporting, or operational reporting requirements contained in section 15 of the "Securities Exchange Act of 1934," 48 Stat. 881, 15 U.S.C. 78o, as amended, or section 17 of the "Securities Exchange Act of 1934," 48 Stat. 881, 15 U.S.C. 78q, as amended, or the rules of the securities and exchange commission promulgated under those sections.
(D) For purposes of division (C) of this section, in determining an acceptable alternative financial and reporting provision and in determining the acceptable scope of any exemption that is elected, the division shall consider the size, scope, and type of business of the dealers who will be permitted to elect the provision or exemption and shall consider the protection of investors and customers of the electing dealers.
Sec. 1707.20. (A)(1) The division of securities may adopt,
amend, and rescind such rules, forms, and orders as are necessary
to carry out sections 1707.01 to 1707.45 of the Revised Code,
including rules and forms governing registration statements,
applications, and reports, and defining any terms, whether or not
used in sections 1707.01 to 1707.45 of the Revised Code, insofar
as the definitions are not inconsistent with these
sections. For
the purpose of rules and forms, the division may
classify
securities, persons, and matters within its
jurisdiction, and
prescribe different requirements for different
classes. (2) Notwithstanding sections 121.71 to 121.76 of the Revised Code, the division may incorporate by reference into its rules any statute enacted by the United States congress or any rule, regulation, or form promulgated by the securities and exchange commission, or by another federal agency, in a manner that also incorporates all future amendments to the statute, rule, regulation, or form. (B) No rule, form, or order may be made, amended, or
rescinded unless the division finds that the action
is necessary
or appropriate in the public interest or for the
protection of
investors, clients, prospective clients, state retirement systems, or the workers' compensation system and
consistent with the
purposes fairly
intended by the policy and provisions of sections
1707.01 to
1707.45 of the Revised Code. In prescribing rules and
forms and
in otherwise administering sections 1707.01 to 1707.45
of the
Revised Code, the division may cooperate with the
securities administrators of the other states and the securities
and exchange commission with a view of effectuating the policy of
this section to achieve maximum uniformity in the form and
content
of registration statements, applications, reports, and
overall
securities regulation wherever practicable. (C) The division may by rule or order
prescribe: (1) The form and content of financial statements required
under sections 1707.01 to 1707.45 of the Revised Code; (2) The circumstances under which consolidated financial
statements shall will be filed; (3) Whether any required financial statements shall be
certified by independent or certified public accountants. All
financial statements shall be prepared in accordance with
generally accepted accounting practices. (D) All rules and forms of the division
shall be published;
and in addition to fulfilling the
requirements of Chapter
119. of
the Revised Code,
the division shall prescribe, and shall publish
and make
available its rules regarding the sale of securities, the
administration of sections 1707.01 to 1707.45 of the Revised
Code,
and the procedure and practice before the division. (E)(1) No provision of sections 1707.01 to 1707.45 of the
Revised Code imposing any liability applies to any act done or
omitted in good faith in conformity with any rule, form, or order
of the division of securities, notwithstanding that the rule,
form, or order may later be amended or rescinded or be determined
by judicial or other authority to be invalid for any reason,
except that the issuance of an order granting effectiveness to a
registration under section 1707.09 or 1707.091 of the Revised
Code
for the purposes of this division shall not be deemed an
order
other than as the establishment of the fact of
registration. (2) No provision of sections 1707.01 to 1707.45 of the Revised Code imposing any liability, penalty, sanction, or disqualification applies to any act done or omitted in good faith in conformity with either of the following:
(a) Any provision of sections 1707.01 to 1707.45 of the Revised Code that incorporates by reference a federal statute, rule, regulation, or form;
(b) Any rule, form, or order of the division that incorporates by reference a federal statute, rule, regulation, or form.
Division (E)(2) of this section applies notwithstanding that the incorporation by reference, or any application of the incorporated provision, is later determined by judicial or other authority to be unconstitutional or invalid for any reason.
Sec. 1707.44. (A)(1) No person shall engage in any act or
practice that
violates division (A), (B), or (C) of section
1707.14 of the Revised
Code, and no salesperson shall sell
securities in this state without
being licensed pursuant to
section 1707.16 of the Revised Code. (2) No person shall engage in any act or practice that
violates
division (A) of section 1707.141 or section 1707.161 of
the Revised Code.
(3) No person shall engage in any act or practice that violates section 1707.162 of the Revised Code. (4) No person shall engage in any act or practice that violates section 1707.164 of the Revised Code. (B) No person shall knowingly make or cause to be made any
false representation concerning a material and relevant fact, in
any oral statement or in any prospectus, circular, description,
application, or written statement, for any of the following
purposes: (1)
Registering securities or transactions, or
exempting
securities or transactions from registration, under this
chapter; (2) Securing the qualification of any securities under
this
chapter; (3) Procuring the licensing of any dealer,
salesperson,
investment adviser, investment adviser
representative, bureau of workers' compensation chief investment officer, or state retirement system investment officer
under
this chapter; (4) Selling any securities in this state; (5) Advising for compensation, as to the value of securities
or as to the
advisability of investing in, purchasing, or selling
securities;
(6) Submitting a notice filing to the division under
division (X) of section 1707.03 or section
1707.092 or 1707.141 of
the Revised Code. (C) No person shall knowingly
sell,
cause
to be sold, offer
for sale, or cause to be offered for
sale, any
security which
comes under any of the following
descriptions: (1) Is not exempt under section 1707.02 of the Revised
Code,
nor the subject matter of one of the transactions exempted
in
section 1707.03, 1707.04, or
1707.34 of the Revised Code,
has not
been registered by
coordination or
qualification,
and is not the
subject matter of a transaction
that has been
registered by
description; (2) The prescribed fees for registering by description, by
coordination, or by qualification have not been paid in respect
to
such security; (3)
The person has been notified by the division, or has
knowledge of the notice, that the right to buy, sell, or
deal in
such security has been suspended or revoked, or that the
registration by description, by coordination, or by qualification
under which it may be sold has been suspended or revoked; (4) The offer or sale is accompanied by a statement that
the
security offered or sold has been or is to be in any manner
indorsed by the division. (D) No person who is an officer, director, or trustee of,
or
a dealer for, any issuer, and who knows such issuer to be
insolvent in that the liabilities of the issuer exceed its
assets,
shall sell any securities of or for any such issuer,
without
disclosing the fact of the insolvency to the
purchaser. (E) No person with intent to aid in the sale of any
securities on behalf of the issuer, shall knowingly make any
representation not authorized by such issuer or at material
variance with statements and documents filed with the division by
such issuer. (F) No person, with intent to deceive, shall sell, cause
to
be sold, offer for sale, or cause to be offered for sale, any
securities of an insolvent issuer, with knowledge that such
issuer
is insolvent in that the liabilities of the issuer
exceed
its
assets, taken at their fair market value. (G) No person in purchasing or selling securities shall
knowingly
engage in any act or practice that is, in this chapter,
declared
illegal, defined as fraudulent, or prohibited. (H) No licensed dealer shall refuse to buy from, sell to,
or
trade with any person because the person appears on a
blacklist
issued by, or is being boycotted by, any foreign
corporate or
governmental entity, nor sell any securities of or
for any issuer
who is known in relation to the issuance or sale
of
the
securities to have engaged in such practices. (I) No dealer in securities, knowing that the dealer's
liabilities exceed the reasonable value of the dealer's
assets,
shall accept money or securities, except in payment of or as
security
for an existing debt, from a customer who is ignorant of
the dealer's insolvency, and thereby cause the customer
to lose
any part of the customer's securities or the value
of those
securities, by doing
either of the following without the
customer's consent: (1) Pledging, selling, or otherwise disposing of such
securities, when the dealer has no lien on or any
special property
in such securities; (2) Pledging such securities for more than the amount due,
or otherwise disposing of such securities for the dealer's
own
benefit,
when the dealer has a lien or indebtedness on such
securities. It is an affirmative defense to a charge under this
division
that, at the time the securities involved were pledged,
sold, or
disposed of, the dealer had in the dealer's
possession
or control,
and available for delivery, securities of the same
kinds and in
amounts sufficient to satisfy all customers entitled
to the
securities, upon demand and tender of any amount
due on the
securities. (J) No person, with purpose to deceive, shall make, issue,
publish, or cause to be made, issued, or published any statement
or advertisement as to the value of securities, or as to alleged
facts affecting the value of securities, or as to the financial
condition of any issuer of securities, when the person knows
that
such the statement or advertisement is false in any material
respect. (K) No person, with purpose to deceive, shall make,
record,
or publish or cause to be made, recorded, or published, a
report
of any transaction in securities which is false in any
material
respect. (L) No dealer shall engage in any act that violates the
provisions of section
15(c) or 15(g) of the
"Securities Exchange
Act of 1934," 48 Stat. 881, 15
U.S.C.A. 78o(c) or (g), or any rule
or regulation promulgated by the
securities and exchange
commission thereunder. If, subsequent to
October 11, 1994,
additional amendments to section 15(c) or 15(g) are adopted, or
additional
rules or regulations are promulgated pursuant to such
sections, the division
of securities shall, by rule, adopt the
amendments, rules, or regulations,
unless the division finds that
the amendments, rules, or regulations are not
necessary for the
protection of investors or in the public interest. (M)(1) No investment adviser or investment adviser
representative shall do any of the following: (a) Employ any device, scheme, or artifice to defraud
any
person; (b) Engage in any act, practice, or course of business
that
operates or would operate as a fraud or deceit upon any
person; (c) In acting as principal for the investment adviser's or
investment adviser representative's own account, knowingly sell
any security to or purchase any security from a client, or in
acting as salesperson for a person other than such client,
knowingly effect any sale or purchase of any security for the
account of such client, without disclosing to the client in
writing before the completion of the transaction the capacity in
which the investment adviser or investment adviser
representative
is acting and obtaining the consent of the client
to the
transaction. Division (M)(1)(c)
of this section does not apply to
any investment adviser
registered with the securities and exchange
commission under
section 203 of the
"Investment Advisers Act of
1940," 15 U.S.C. 80b-3, or to
any transaction with a customer
of a
licensed dealer or salesperson if the licensed dealer or
salesperson is not acting as an investment adviser or investment
adviser representative in relation to the transaction. (d) Engage in any act, practice, or
course of business that
is fraudulent, deceptive, or
manipulative. The division of
securities may adopt rules
reasonably designed to prevent such
acts, practices, or courses
of business
that are fraudulent,
deceptive, or manipulative. (2) No investment adviser or investment adviser
representative licensed or required to be licensed under this
chapter shall take or have custody of any securities or funds of
any person, except as provided in rules adopted by the division. (3) In the solicitation of clients or prospective clients,
no
person shall make any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements made not misleading in light of the circumstances
under
which the statements were made. (N) No person knowingly shall influence, coerce, manipulate,
or mislead any person engaged in the preparation, compilation,
review, or audit of financial statements to be used in the
purchase or sale of securities for the purpose of rendering the
financial statements materially misleading. (O) No state retirement system investment officer shall do any of the following:
(1) Employ any device, scheme, or artifice to defraud any state retirement system;
(2) Engage in any act, practice, or course of business that operates or would operate as a fraud or deceit on any state retirement system;
(3) Engage in any act, practice, or course of business that is fraudulent, deceptive, or manipulative.
The division of securities may adopt rules reasonably designed to prevent such acts, practices, or courses of business as are fraudulent, deceptive, or manipulative; (4) Knowingly fail to comply with any policy adopted regarding the officer established pursuant to section 145.094, 742.104, 3307.043, 3309.043, or 5505.065 of the Revised Code. (P) No bureau of workers' compensation chief investment officer shall do any of the following:
(1) Employ any device, scheme, or artifice to defraud the workers' compensation system;
(2) Engage in any act, practice, or course of business that operates or would operate as a fraud or deceit on the workers' compensation system;
(3) Engage in any act, practice, or course of business that is fraudulent, deceptive, or manipulative. The division of securities may adopt rules reasonably designed to prevent such acts, practices, or courses of business as are fraudulent, deceptive, or manipulative;
(4) Knowingly fail to comply with any policy adopted regarding the officer established pursuant to section 4123.441 of the Revised Code.
Sec. 1775.01. As used in this chapter: (A) "Court" includes every court and judge having jurisdiction in the case. (B) "Business" includes every trade, occupation, or profession. (C) "Person" includes individuals, partnerships, trustees, executors,
administrators, other fiduciaries, corporations, and other associations. (D) "Bankrupt" includes bankrupt under the federal bankruptcy act or
insolvent under any state insolvency law. (E) "Conveyance" includes every assignment, lease, mortgage, or encumbrance. (F) "Real property" includes land and any interest or estate in land.
(G) "Entity" means either of the following:
(1) A for profit corporation existing under the laws of this state or any other state;
(2) Any of the following organizations existing under the laws of this state, the United States, or any other state:
(a) A business trust or association;
(b) A real estate investment trust;
(c) A common law trust;
(d) An unincorporated business or for profit organization, including a general or limited partnership;
(e) A limited liability company.
Sec. 1775.05. (A) A partnership is an association entity of two
or more persons to carry on as co-owners a business for profit
and includes such an association entity that has limited liability as
provided in this chapter and that is registered under section
1775.61 of the Revised Code. (B) Any association entity formed under any other statute of this
state, or any statute adopted by authority, other than the
authority of this state, is not a partnership under sections
1775.01 to 1775.65 of the Revised Code, unless such
association the entity
would have been a partnership in this state prior to September
14, 1949, but such sections apply to limited partnerships except
in so far as the statutes relating to such these partnerships are
inconsistent herewith. (C) Except as otherwise provided in the Ohio Constitution,
the organization and internal affairs of a foreign limited
liability partnership and the liability of the partners for the debts,
obligations, or other liabilities of any kind of, or
chargeable to, the foreign limited liability partnership shall be
governed by the laws of the
state under which the foreign limited liability partnership is
organized. (D) For purposes of this chapter, "foreign limited liability
partnership" means a limited liability partnership organized and registered as
such pursuant to the laws of another state.
Sec. 1775.14. (A) Subject to section 1339.65 of the Revised
Code and except as provided in division (B) of this section,
all
partners are liable as follows: (1) Jointly and severally for everything chargeable to the
partnership under sections 1775.12 and 1775.13 of the Revised
Code. This joint and several liability is not subject to
section
2307.22 or 2315.36 of
the
Revised Code with respect
to a
tort claim
that otherwise is subject to
either of those sections. (2) Jointly for all other debts and obligations of the
partnership, but any partner may enter into a separate obligation
to perform a partnership contract. (B) Subject to divisions
(C)(1) and (2) of this section or
as otherwise provided
in a written agreement between the partners
of a registered limited liability
partnership, a partner in a
registered limited liability partnership, solely by reason of being a partner; acting or failing to act as a partner; or participating as an employee, consultant, contractor, or otherwise in the conduct of the business or activities of the registered limited liability partnership while the partnership is a registered limited liability partnership, is not
personally liable, directly
or indirectly, by way of indemnification, contribution,
assessment, or otherwise, for debts, obligations, or other
liabilities of any
kind of, or chargeable to, the partnership or
another partner or partners
arising from negligence or from
wrongful
acts, errors, omissions, or misconduct, whether or not
intentional
or
characterized as tort, contract, or otherwise,
committed or occurring while
the
partnership is a registered
limited liability partnership and or committed or
occurring in the
course of the partnership business by another partner or an
employee, agent, or representative of the partnership. (C)(1) Division
(B) of this section does not affect the
liability of a partner in a registered limited liability
partnership for that
partner's own negligence, wrongful acts,
errors, omissions, or misconduct,
including that partner's own
negligence, wrongful acts, errors, omissions, or
misconduct in
directly supervising any other partner or any employee, agent,
or
representative of the partnership. (2) Division (B) of this section shall
not affect the
liability of a partner for liabilities imposed by
Chapters 5735.,
5739., 5743., and 5747. and
section 3734.908 of the Revised
Code. (D) A partner in a registered limited
liability partnership
is not a proper party to an action or proceeding by or
against a
registered limited liability partnership with respect to any debt,
obligation, or other liability of any kind described in division
(B) of this section, unless the partner is
liable under divisions
(C)(1) and (2) of this section. (E) A registered limited liability partnership is liable out of partnership assets for partnership debts, obligations, and liabilities.
(F)(1) The personal liability of a partner solely by reason of being such a partner, or acting or omitting to act in such capacity, of a registered limited liability partnership organized and registered under the laws of this state shall be determined only under the laws of this state.
(2) The only actions required of a registered limited liability partnership or of individual partners in such a partnership in order to avail themselves of the limited liability provisions of this section are those required by this chapter.
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; (10) If the surviving or new entity is a foreign limited liability partnership that desires to transact business in this state as a foreign limited liability partnership, a statement to that effect, together with all of the information required under section 1775.64 of the Revised Code when a foreign limited liability partnership 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), or (10) 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 the 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, or limited liability 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; (3) Partners of a domestic partnership that is being converted into a converted entity pursuant to section 1775.53 of the Revised Code. (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, or conversion.
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, or conversion 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, or conversion 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. In the case of a conversion, a demand served on the converting domestic partnership constitutes service on the converted entity, whether the demand is served before, on, or after the effective date of the conversion. (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 the
rights in the general partnership as the
original partner
holding
such the 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, or in the case of a conversion may be the converted 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, or conversion 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 conversion or is finally enjoined or prevented from carrying
it
out, or the partners rescind their adoption or approval of the
merger or, consolidation, or conversion. (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 that 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 the
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 a rate and
from such a 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, or conversion, 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, or conversion 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, or conversion 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, or if a domestic partnership is the converting entity in a conversion, 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, or conversion
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 or the entity resulting from the conversion 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, or conversion 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 or the entity resulting from the conversion. (4) The partner has agreed that the creditor need not
exhaust the assets of the surviving or resulting entity of the
merger or consolidation or the entity resulting from the conversion. (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, or conversion 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 or the entity resulting from the conversion 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 or the entity resulting from the conversion.
Sec. 1775.53. (A) Subject to division (B)(2) of this section, pursuant to a written declaration of conversion as provided in this section, a domestic or foreign entity other than a domestic partnership may be converted into a domestic partnership. The conversion also must be permitted by the chapter of the Revised Code or by the laws under which the converting entity exists.
(B)(1) The written declaration of conversion shall set forth all of the following:
(a) The name and form of entity that is being converted, the name of the entity into which the entity will be converted, and the jurisdiction of formation of the converting entity;
(b) If the converted entity is a limited liability partnership, its registration application;
(c) The partnership agreement of the converted domestic partnership or a provision that the written agreement of the converting entity, a copy of which shall be attached to the declaration of conversion, with any amendments that are set forth in the declaration of conversion, is the agreement of the converted domestic partnership;
(d) The general partners of the converted partnership;
(e) All statements and matters required to be set forth in an instrument of conversion by the laws under which the converting entity exists;
(f) The terms of the conversion; the mode of carrying them into effect; and the manner and basis of converting the interests or shares of the converting entity into, or substituting the interests or shares in the converting entity for, interests, evidences of indebtedness, other securities, cash, rights, or any other property or any combination of interests, evidences of indebtedness, other securities, cash, rights, or any other property of the converted partnership.
(2) No conversion or substitution described in this section shall be effected if there are reasonable grounds to believe that the conversion or substitution would render the converted partnership unable to pay its obligations as they become due in the usual course of its affairs.
(C) The written declaration of conversion may set forth any of the following:
(1) The effective date of the conversion, which date may be on or after the date of the filing of the certificate of conversion pursuant to section 1775.55 of the Revised Code;
(2) A provision authorizing the converting entity to abandon the proposed conversion by action of authorized representatives of the converting entity taken prior to the filing of the certificate of conversion pursuant to section 1775.55 of the Revised Code;
(3) A statement of, or a statement of the method to be used to determine, the fair value of the assets owned by the converting entity at the time of the conversion;
(4) The parties to the declaration of conversion in addition to the converting entity;
(5) Any additional provision necessary or desirable with respect to the proposed conversion or the converted entity.
(D) At any time before the filing of the certificate of conversion pursuant to section 1775.55 of the Revised Code, the conversion may be abandoned by any representatives authorized to do so by the declaration of conversion, or by the same vote as was required to adopt the declaration of conversion.
(E) Unless the converted entity is a limited liability partnership, each person that will be a partner of the partnership that is the converted entity specifically shall agree in writing to be a partner in the partnership that is the converted entity. Sec. 1775.54. (A) Subject to division (B)(2) of this section, pursuant to a written declaration of conversion as provided in this section, a domestic partnership may be converted into a domestic or foreign entity other than a domestic partnership. The conversion also must be permitted by the chapter of the Revised Code or by the laws under which the converted entity will exist.
(B)(1) The written declaration of conversion shall set forth all of the following:
(a) The name and form of entity that is being converted, the name of the entity into which the entity will be converted, the form of the converted entity, and the jurisdiction of formation of the converted entity;
(b) If the converted entity is a domestic entity, the complete terms of all documents required under the applicable chapter of the Revised Code to form the converted entity;
(c) If the converted entity is a foreign entity, all of the following:
(i) The complete terms of all documents required under the law of its formation to form the converted entity;
(ii) The consent of the converted entity to be sued and served with process in this state, and the irrevocable appointment of the secretary of state as the agent of the converted entity to accept service of process in this state to enforce against the converted entity any obligation of the converting partnership or to enforce the rights of a dissenting partner of the converting partnership;
(iii) If the converted entity desires to transact business in this state, the information required to qualify or be licensed under the applicable chapter of the Revised Code;
(d) All other statements and matters required to be set forth in the declaration of conversion by the applicable chapter of the Revised Code if the converted entity is a domestic entity, or by the laws under which the converted entity will be formed, if the converted entity is a foreign entity;
(e) The terms of the conversion; the mode of carrying them into effect; and the manner and basis of converting the interests or shares of the converting partnership into, or substituting the interests in the converting partnership for, interests, evidences of indebtedness, other securities, cash, rights, or any other property or any combination of interests, evidences of indebtedness, other securities, cash, rights, or any other property of the converted entity.
(2) No conversion or substitution described in this section shall be effected if there are reasonable grounds to believe that the conversion or substitution would render the converted entity unable to pay its obligations as they become due in the usual course of its affairs.
(C) The written declaration of conversion may set forth any of the following:
(1) The effective date of the conversion, which date may be on or after the date of the filing of the certificate of conversion pursuant to section 1775.55 of the Revised Code;
(2) A provision authorizing the converting partnership to abandon the proposed conversion by action of the partners of the converting partnership taken prior to the filing of the certificate of conversion pursuant to section 1775.55 of the Revised Code;
(3) A statement of, or a statement of the method to be used to determine, the fair value of the assets owned by the converting partnership at the time of the conversion;
(4) The parties to the declaration of conversion in addition to the converting entity;
(5) Any additional provision necessary or desirable with respect to the proposed conversion or the converted entity.
(D) The partners of the converting partnership must adopt the declaration of conversion to effect the conversion.
(E)(1) All partners, whether or not they are entitled to vote or act, shall be given written notice of any meeting of partners of a partnership or of any proposed action by the partners, which meeting or action is to adopt a declaration of conversion. The notice shall be given to the partners either as provided in writing in the partnership agreement or by mail at the partners' addresses as they appear on the records of the partnership, or in person. Unless the partnership agreement provides a shorter or longer period, notice shall be given not less than seven and not more than sixty days before the meeting or the effective date of the action.
(2) The notice described in division (E)(1) of this section shall be accompanied by a copy or a summary of the material provisions of the declaration of conversion.
(F) The unanimous vote or action of the partners of a converting partnership, or a different number or proportion as provided in writing in the partnership agreement, is required to adopt a declaration of conversion.
If the declaration of conversion would have an effect or authorize any action that under any applicable 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 declaration of conversion also must be adopted or approved by the same vote or action as would be required to effect that change or authorize that action.
(G)(1) At any time before the filing of the certificate of conversion pursuant to section 1775.55 of the Revised Code, the conversion may be abandoned by all of the partners of the converting partnership or by any representatives authorized to do so by the declaration of conversion, or by the same vote as was required to adopt the declaration of conversion.
(2) The declaration of conversion may contain a provision authorizing less than all of the partners to amend the declaration of conversion at any time before the filing of the certificate of conversion pursuant to section 1775.55 of the Revised Code, except that, after the adoption of the declaration of conversion by the partners, less than all the partners are not authorized to amend the declaration of conversion to do any of the following:
(a) 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 the partners of the converting partnership in conversion of, or substitution for, their interests;
(b) Alter or change any term of the organizational documents of the converted entity except for alterations or changes that are adopted with the vote or action of the persons the vote or action of which would be required for the alteration or change after the conversion;
(c) Alter or change any other terms and conditions of the declaration of conversion if any of the alterations or changes, alone or in the aggregate, materially and adversely would affect the partners or any class or group of partners of the converting partnership. Sec. 1775.55. (A) Upon the adoption of a declaration of conversion pursuant to section 1775.53 or 1775.54 of the Revised Code, or at a later time as authorized by the declaration of conversion, a certificate of conversion that is signed by an authorized representative of the converting entity shall be filed with the secretary of state. 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 conversion shall set forth all of the following:
(a) The name and the form of entity of the converting entity and the state under the laws of which the converting entity exists;
(b) A statement that the converting entity has complied with all of the laws under which it exists and that those laws permit the conversion;
(c) The name and mailing address of the person or entity that is to provide a copy of the declaration of conversion in response to any written request made by a shareholder, partner, or member of the converting entity;
(d) The effective date of the conversion, which date may be on or after the date of the filing of the certificate pursuant to this section;
(e) The signature of the representative or representatives authorized to sign the certificate on behalf of the converting entity and the office held or the capacity in which the representative is acting;
(f) A statement that the declaration of conversion is authorized on behalf of the converting entity and that each person that signed the certificate on behalf of the converting entity is authorized to do so;
(g) The name and the form of the converted entity and the state under the laws of which the converted entity will exist;
(h) If the converted entity is a foreign entity that will not be licensed in this state, the name and address of the statutory agent upon whom any process, notice, or demand may be served.
(2) In the case of a conversion into a new domestic corporation, limited liability company, limited partnership, or other partnership, any organizational document that would be filed upon the creation of the converted entity shall be filed with the certificate of conversion.
(3) If the converted entity is a foreign entity that desires to transact business in this state, the certificate of conversion shall be accompanied by the information required by division (B)(7), (8), (9), or (10) of section 1775.46 of the Revised Code.
(4) If a foreign or domestic corporation licensed to transact business in this state is the converting entity, the certificate of conversion 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 a converting domestic corporation, or 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 a foreign corporation.
(C) If the converting entity or the converted entity 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, all documents required to be filed in connection with the conversion by the laws of that state or that chapter also shall be filed in the proper office.
(D) Upon the filing of a certificate of conversion and other filings required by division (C) of this section, or at any later date that the certificate of conversion specifies, the conversion is effective, subject to the limitation that no conversion shall be effected if there are reasonable grounds to believe that the conversion would render the converted entity unable to pay its obligations as they become due in the usual course of its affairs.
(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 all of the following:
(1) The name and form of entity of the converting entity and the state under the laws of which it existed prior to the conversion;
(2) The name and the form of entity of the converted entity and the state under the law of which it will exist;
(3) The date of filing of the certificate of conversion with the secretary of state and the effective date of the conversion.
(F) The certificate of the secretary of state, or a copy of the certificate of conversion 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 the recording, the county recorder shall charge and collect the same fee as in the case of deeds. Sec. 1775.56. (A) Upon a conversion becoming effective, all of the following apply:
(1) The converting entity is continued in the converted entity.
(2) The converted entity exists, and the converting entity ceases to exist.
(3) The converted entity possesses both of the following, and both of the following continue in the converted entity without any further act or deed:
(a) Except to the extent limited by requirements of applicable law, both of the following:
(i) All assets and property of every description of the converting entity and every interest in the assets and property of the converting entity, wherever the assets, property, and interests are located. Title to any real estate or any interest in real estate that was vested in the converting entity does not revert or in any way is impaired by reason of the conversion.
(ii) The rights, privileges, immunities, powers, franchises, and authority, whether of a public or a private nature, of the converting entity.
(b) All obligations belonging or due to the converting entity.
(4) All the rights of creditors of the converting entity are preserved unimpaired, and all liens upon the property of the converting entity are preserved unimpaired. If a general partner of a converting partnership is not a general partner of the entity resulting from the conversion, then the former general partner has no liability for any obligation incurred after the conversion except to the extent that a former creditor of the converting partnership in which the former general partner was a general partner extends credit to the converted entity reasonably believing that the former general partner continues as a general partner of the converted entity.
(B) If a general partner of a converting partnership is not a general partner of the entity resulting from the conversion, then unless that general partner agrees otherwise in writing, the general partner shall be indemnified by the converted entity against all present or future liabilities of the converting partnership of which the general partner was a general partner. Liabilities of the converting partnership, for purposes of division (B) of this section, include any amount payable pursuant to section 1775.50 of the Revised Code to a partner of the converting partnership.
(C) In the case of a conversion into a foreign corporation, limited liability company, or partnership that is not licensed or registered to transact business in this state, if the converted entity intends to transact business in this state, and the certificate of conversion 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 conversion, the converted entity is 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, limited partnership, or limited liability partnership as the case may be. In such a case, a copy of the certificate of conversion 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, foreign limited partnership, or foreign limited liability partnership.
(D) Any action to set aside any conversion on the ground that any section of the Revised Code applicable to the conversion has not been complied with shall be brought within ninety days after the effective date of the conversion or is forever barred.
(E) In the case of a converting or converted 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 which that entity exists or in which it has property.
Sec. 1782.435. (A) Unless otherwise provided in writing
in the partnership agreement of a constituent domestic limited
partnership, the following are entitled to relief as dissenting
partners as provided in section 1782.436 of the Revised Code: (1) Partners of a domestic limited partnership that is
being merged or consolidated into a surviving or new entity,
domestic or foreign, pursuant to section 1782.431 or 1782.432 of
the Revised Code; (2) In the case of a merger into a domestic limited
partnership, partners of the surviving domestic limited
partnership who under section 1782.431 of the Revised Code are
entitled to vote or act on the adoption of an agreement or
merger, but only as to the interests so entitling them to vote or
act; (3) Partners of a domestic limited partnership that is being converted into a converted entity pursuant to section 1782.439 of the Revised Code. (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 1782.436 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. 1782.436. (A) A partner of a domestic limited
partnership is entitled to relief as a dissenting partner in
respect of the proposals described in section 1782.435 of the
Revised Code only in compliance with this section. (B) If the proposal of merger or, consolidation, or conversion 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 he 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 limited partnership a
written demand for payment to him the dissenting partner of the
fair cash value of the
interests as to which he the dissenting partner seeks relief
that states his the dissenting partner's address,
the number and class of those interests, and the amount claimed
by him the dissenting partner as the fair cash value of the
interests. (C) If the proposal of merger or, consolidation, or conversion is to be
submitted to the partners for their written approval or other
action without meeting, the dissenting partner shall be a partner
and a record holder of the interests of the partnership as to
which he the dissenting partner seeks relief as of the date such the
writing was sent to the
partners entitled to act or otherwise approve the proposal, and
the dissenting partner shall not have indicated his approval of
the proposal in his the dissenting partner's capacity as a
holder of such interests. Not
later than fifteen days after the date on which request for
approval of the proposal was mailed to the partners, the
dissenting partner shall deliver to the partnership a written
demand for payment to him the dissenting partner of the fair
cash value of the interests
as to which he the dissenting partner seeks relief, which demand
shall state his the dissenting partner's
address, the number and class of such interests, and the amount
claimed by him 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 limited 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. In the case of a conversion, a demand served on the converting domestic limited partnership constitutes service on the converted entity, whether the demand is served before, on, or after the effective date of the conversion. (E) If the interests as to which a dissenting partner
seeks relief are represented by certificates and if the domestic
limited partnership sends to the dissenting partner, at the
address specified in his the dissenting partner's demand, a
request for certificates
representing the interests as to which he the dissenting partner
seeks relief, the
dissenting partner, within fifteen days from the date on which
the request was sent, shall deliver to the limited partnership
the certificates requested so that the limited 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 limited
partnership promptly shall return the endorsed certificates to
the dissenting partner. The failure of a dissenting partner to
deliver such certificates terminates his rights as a dissenting
partner, at the option of the limited 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 limited 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 securities as
provided in this division. A transferee of the interests
receiving a certificate so endorsed, or of uncertificated
securities where such a notation has been made, acquires only
such rights in the limited 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 limited 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 limited 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 the limited 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 limited partnership, which
in the case of a merger or consolidation may be the surviving or
new entity, or in the case of a conversion is the converted entity, within three months after the service of the demand
by the dissenting partner, may file a complaint under section
1782.437 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 limited partnership that issued the interests is
located or was located when the proposal was adopted by the
partners of the limited partnership. Other dissenting partners,
within that three-month 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 he the dissenting partner seeks relief and the right and
obligation of the
domestic limited 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 limited partnership waives such failure. (2) The limited partnership abandons the merger or,
consolidation, or conversion or is finally enjoined or prevented from carrying
it out, or the partners rescind their adoption or approval of the
merger or, consolidation, or conversion. (3) The dissenting partner withdraws his the dissenting
partner's demand, with the
consent of the limited partnership. (4) All of the following apply: (a) The partnership agreement of the constituent domestic
limited 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 his the dissenting
partner's interest. (b) The limited partnership and the dissenting partner
have not agreed upon the fair cash value of the interest. (c) Neither the dissenting partner nor the limited
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 limited 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 limited 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 a 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 limited 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. 1782.437. (A) When authorized by division (F) of
section 1782.436 of the Revised Code, a dissenting partner or
limited 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 limited
partnership for the payment of it, with interest at such a rate and
from such a 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
1782.436 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, or conversion, whichever occurs
last. Upon the occurrence of the last such event, payment shall
be made immediately to a holder of uncertificated securities
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 limited
partnership of the certificates representing the interests for
which the payment is made. (B) If the proposal was submitted to the partners of the
limited 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, or conversion shall be excluded.
Sec. 1782.438. (A) Subject to division (B)(2) of this section, pursuant to a written declaration of conversion as provided in this section, a domestic or foreign entity other than a domestic limited partnership may be converted into a domestic limited partnership. The conversion also must be permitted by the chapter of the Revised Code or by the laws under which the converting entity exists.
(B)(1) The written declaration of conversion shall set forth all of the following:
(a) The name and form of entity that is being converted, the name of the entity into which the entity will be converted, and the jurisdiction of formation of the converting entity;
(b) The certificate of limited partnership of the converted limited partnership;
(c) The partnership agreement of the converted domestic limited partnership or a provision that the written agreement of the converting entity, a copy of which shall be attached to the declaration of conversion, with any amendments that are set forth in the declaration of conversion, is the agreement of the converted domestic limited partnership;
(d) The general partners of the converted domestic limited partnership;
(e) All statements and matters required to be set forth in an instrument of conversion by the laws under which the converting entity exists;
(f) The terms of the conversion; the mode of carrying them into effect; and the manner and basis of converting the interests or shares of the converting entity into, or substituting the interests or shares in the converting entity for, interests, evidences of indebtedness, other securities, cash, rights, or any other property or any combination of interests, evidences of indebtedness, other securities, cash, rights, or any other property of the converted limited partnership.
(2) No conversion or substitution described in this section shall be effected if there are reasonable grounds to believe that the conversion or substitution would render the converted limited partnership unable to pay its obligations as they become due in the usual course of its affairs.
(C) The written declaration of conversion may set forth any of the following:
(1) The effective date of the conversion, which date may be on or after the date of the filing of the certificate of conversion pursuant to section 1782.4310 of the Revised Code;
(2) A provision authorizing the converting entity to abandon the proposed conversion by action of authorized representatives of the converting entity taken prior to the filing of the certificate of conversion pursuant to section 1782.4310 of the Revised Code;
(3) A statement of, or a statement of the method to be used to determine, the fair value of the assets owned by the converting entity at the time of the conversion;
(4) The parties to the declaration of conversion in addition to the converting entity;
(5) Any additional provision necessary or desirable with respect to the proposed conversion or the converted entity.
(D) At any time before the filing of the certificate of conversion pursuant to section 1782.4310 of the Revised Code, the conversion may be abandoned by any representatives authorized to do so by the declaration of conversion, or by the same vote as was required to adopt the declaration of conversion.
(E) Each person that will be a general partner of the domestic limited partnership that is the converted entity specifically shall agree in writing to be a general partner in the domestic limited partnership that is the converted entity.
Sec. 1782.439. (A) Subject to division (B)(2) of this section, pursuant to a written declaration of conversion as provided in this section, a domestic limited partnership may be converted into a domestic or foreign entity other than a domestic limited partnership. The conversion also must be permitted by the chapter of the Revised Code or by the laws under which the converted entity will exist.
(B)(1) The written declaration of conversion shall set forth all of the following:
(a) The name and form of entity that is being converted, the name of the entity into which the entity will be converted, the form of the converted entity, and the jurisdiction of formation of the converted entity;
(b) If the converted entity is a domestic entity, the complete terms of all documents required under the applicable chapter of the Revised Code to form the converted entity;
(c) If the converted entity is a foreign entity, all of the following:
(i) The complete terms of all documents required under the law of its formation to form the converted entity;
(ii) The consent of the converted entity to be sued and served with process in this state, and the irrevocable appointment of the secretary of state as the agent of the converted entity to accept service of process in this state to enforce against the converted entity any obligation of the converting limited partnership or to enforce the rights of a dissenting limited partner of the converting limited partnership;
(iii) If the converted entity desires to transact business in this state, the information required to qualify or be licensed under the applicable chapter of the Revised Code;
(d) All other statements and matters required to be set forth in the declaration of conversion by the applicable chapter of the Revised Code if the converted entity is a domestic entity, or by the laws under which the converted entity will be formed, if the converted entity is a foreign entity.
(e) The terms of the conversion; the mode of carrying them into effect; and the manner and basis of converting the interests or shares of the converting limited partnership into, or substituting the interests in the converting partnership for, interests, evidences of indebtedness, other securities, cash, rights, or any other property or any combination of interests, evidences of indebtedness, other securities, cash, rights, or any other property of the converted entity.
(2) No conversion or substitution described in this section shall be effected if there are reasonable grounds to believe that the conversion or substitution would render the converted entity unable to pay its obligations as they become due in the usual course of its affairs.
(C) The written declaration of conversion may set forth any of the following:
(1) The effective date of the conversion, which date may be on or after the date of the filing of the certificate of conversion pursuant to section 1782.4310 of the Revised Code;
(2) A provision authorizing the converting limited partnership to abandon the proposed conversion by action of the general partners of the converting limited partnership taken prior to the filing of the certificate of conversion pursuant to section 1782.4310 of the Revised Code;
(3) A statement of, or a statement of the method to be used to determine, the fair value of the assets owned by the converting limited partnership at the time of the conversion;
(4) The parties to the declaration of conversion in addition to the converting entity;
(5) Any additional provision necessary or desirable with respect to the proposed conversion or the converted entity.
(D) The general partners of the converting domestic limited partnership and, unless otherwise provided in writing in the agreement of limited partnership, the limited partners of the converting domestic limited partnership must adopt the declaration of conversion in order to effect the conversion. Notwithstanding that the limited partners of a converting domestic limited partnership are not required to vote on a conversion, the declaration of conversion also must be adopted by the limited partners if the declaration of conversion makes any change to the partnership agreement then in effect or to the documents governing the organization of the converted entity, or authorizes any action that, if it were made or authorized apart from the conversion, would require such approval or adoption.
(E)(1) All partners, whether or not they are entitled to vote or act, shall be given written notice of any meeting of limited partners of a converting domestic limited partnership or of any proposed action by limited partners of a converting domestic limited partnership, which meeting or action is to adopt a declaration of conversion. The notice shall be given to the partners either as provided in writing in the limited partnership agreement or by mail at the partners' addresses as they appear on the records of the limited partnership, or in person. Unless the limited partnership agreement provides a shorter or longer period, notice shall be given not less than seven and not more than sixty days before the meeting or the effective date of the action.
(2) The notice described in division (E)(1) of this section shall be accompanied by a copy or a summary of the material provisions of the declaration of conversion.
(F) The unanimous vote or action of the general partners, or a different number or proportion as provided in writing in the partnership agreement, is required to adopt a declaration of conversion.
If the declaration of conversion 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 declaration of conversion also must be adopted or approved by the same vote or action as would be required to effect that change or authorize that action.
(G) Each person that will continue to be or that will become a general partner of a partnership that is a converted entity in a conversion specifically shall agree to continue or to become, as the case may be, a general partner of the partnership that is the converted entity.
(H)(1) At any time before the filing of the certificate of conversion pursuant to section 1782.4310 of the Revised Code, the conversion may be abandoned by all of the general partners of the converting limited partnership or by any representatives authorized to do so by the declaration of conversion, or by the same vote as was required to adopt the declaration of conversion.
(2) The declaration of conversion may contain a provision authorizing less than all of the general partners to amend the declaration of conversion at any time before the filing of the certificate of conversion, except that, after the adoption of the declaration of conversion by the general partners, less than all the general partners are not authorized to amend the declaration of conversion to do any of the following:
(a) 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 the partners of the converting limited partnership in conversion of, or substitution for, their interests;
(b) Alter or change any term of the organizational documents of the converted entity except for alterations or changes that are adopted with the vote or action of the persons the vote or action of which would be required for the alteration or change after the conversion;
(c) Alter or change any other terms and conditions of the declaration of conversion if any of the alterations or changes, alone or in the aggregate, materially and adversely would affect the partners or any class or group of partners of the converting partnership.
Sec. 1782.4310. (A) Upon the adoption of a declaration of conversion pursuant to section 1782.438 or 1782.439 of the Revised Code, or at a later time as authorized by the declaration of conversion, a certificate of conversion that is signed by an authorized representative of the converting entity shall be filed with the secretary of state. 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 conversion shall set forth all of the following:
(a) The name and the form of entity of the converting entity and the state under the laws of which the converting entity exists;
(b) A statement that the converting entity has complied with all of the laws under which it exists and that those laws permit the conversion;
(c) The name and mailing address of the person or entity that is to provide a copy of the declaration of conversion in response to any written request made by a shareholder, partner, or member of the converting entity;
(d) The effective date of the conversion, which date may be on or after the date of the filing of the certificate pursuant to this section;
(e) The signature of the representative or representatives authorized to sign the certificate on behalf of the converting entity and the office held or the capacity in which the representative is acting;
(f) A statement that the declaration of conversion is authorized on behalf of the converting entity and that each person that signed the certificate on behalf of the converting entity is authorized to do so;
(g) The name and the form of the converted entity and the state under the laws of which the converted entity will exist;
(h) If the converted entity is a foreign entity that will not be licensed in this state, the name and address of the statutory agent upon whom any process, notice, or demand may be served.
(2) In the case of a conversion into a new domestic corporation, limited liability company, or partnership, any organizational document that would be filed upon the creation of the converted entity shall be filed with the certificate of conversion.
(3) If the converted entity is a foreign entity that desires to transact business in this state, the certificate of conversion shall be accompanied by the information required by division (B)(7), (8), or (9) of section 1782.432 of the Revised Code.
(4) If a foreign or domestic corporation licensed to transact business in this state is the converting entity, the certificate of conversion 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 a converting domestic corporation, or 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 a foreign corporation.
(C) If the converting entity or the converted entity 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, all documents required to be filed in connection with the conversion by the laws of that state or that chapter shall be filed in the proper office.
(D) Upon the filing of a certificate of conversion and other filings required by division (C) of this section, or at any later date that the certificate of conversion specifies, the conversion is effective, subject to the limitation that no conversion shall be effected if there are reasonable grounds to believe that the conversion would render the converted entity unable to pay its obligations as they become due in the usual course of its affairs.
(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 all of the following:
(1) The name and form of entity of the converting entity and the state under the laws of which it existed prior to the conversion;
(2) The name and the form of entity of the converted entity and the state under the law of which it will exist;
(3) The date of filing of the certificate of conversion with the secretary of state and the effective date of the conversion.
(F) The certificate of the secretary of state, or a copy of the certificate of conversion 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 the recording, the county recorder shall charge and collect the same fee as in the case of deeds.
Sec. 1782.4311. (A) Upon a conversion becoming effective, all of the following apply:
(1) The converting entity is continued in the converted entity.
(2) The converted entity exists, and the converting entity ceases to exist.
(3) The converted entity possesses both of the following, and both of the following continue in the converted entity without any further act or deed:
(a) Except to the extent limited by requirements of applicable law, both of the following:
(i) All assets and property of every description of the converting entity and every interest in the assets and property of the converting entity, wherever the assets, property, and interests are located. Title to any real estate or any interest in real estate that was vested in the converting entity does not revert or in any way is impaired by reason of the conversion.
(ii) The rights, privileges, immunities, powers, franchises, and authority, whether of a public or a private nature, of the converting entity.
(b) All obligations belonging or due to the converting entity.
(4) All the rights of creditors of the converting entity are preserved unimpaired, and all liens upon the property of the converting entity are preserved unimpaired. If a general partner of a converting partnership is not a general partner of the entity resulting from the conversion, then the former general partner has no liability for any obligation incurred after the conversion except to the extent that a former creditor of the converting partnership in which the former general partner was a general partner extends credit to the converted entity reasonably believing that the former general partner continues as a general partner of the converted entity.
(B) If a general partner of a converting limited partnership is not a general partner of the entity resulting from the conversion, then, unless that general partner agrees otherwise in writing, the general partner shall be indemnified by the converted entity against all present or future liabilities of the converting limited partnership of which the general partner was a general partner. Liabilities of the converting limited partnership, for purposes of division (B) of this section, include any amount payable pursuant to section 1782.435 of the Revised Code to a partner of the converting partnership.
(C) In the case of a conversion into a foreign corporation, limited liability company, or partnership that is not licensed or registered to transact business in this state, if the converted entity intends to transact business in this state, and the certificate of conversion is accompanied by the information described in division (B)(4) of section 1782.433 of the Revised Code, then on the effective date of the conversion, the converted entity is 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, limited partnership, or limited liability partnership as the case may be. In such a case, a copy of the certificate of conversion 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, foreign limited partnership, or foreign limited liability partnership.
(D) Any action to set aside any conversion on the ground that any section of the Revised Code applicable to the conversion has not been complied with shall be brought within ninety days after the effective date of the conversion or is forever barred.
(E) In the case of a converting or converted 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 which that entity exists or in which it has property.
Sec. 1782.65. (A) Absent an express agreement to the contrary, a person providing goods to or performing services for a domestic or foreign limited partnership owes no duty to, incurs no liability or obligation to, and is not in privity with the general partners, limited partners, or creditors of the limited partnership by reason of providing goods to or performing services for the limited partnership. (B) Absent an express agreement to the contrary, a person providing goods to or performing services for a general or limited partner or a group of general or limited partners of a limited domestic or foreign limited partnership owes no duty to, incurs no liability or obligation to, and is not in privity with the limited partnership, any other general or limited partners of the limited partnership, or the creditors of the limited partnership by reason of providing goods to or performing services for the general or limited partner or group of general or limited partners.
SECTION 2. That existing sections 111.16, 1701.01, 1701.10, 1701.11, 1701.17, 1701.18, 1701.19, 1701.40, 1701.41, 1701.44, 1701.51, 1701.54, 1701.57, 1701.58, 1701.62, 1701.63, 1701.73, 1701.75, 1701.76, 1701.81, 1701.831, 1701.84, 1701.85, 1701.92, 1704.02, 1704.03, 1705.09, 1705.19, 1705.40, 1705.41, 1705.42, 1707.01, 1707.041, 1707.20, 1707.44, 1775.01, 1775.05, 1775.14, 1775.45, 1775.46, 1775.47, 1775.48, 1775.49, 1775.50, 1775.51, 1775.52, 1782.435, 1782.436, and 1782.437 of the Revised Code are hereby repealed.
SECTION 3. Section 111.16 of the Revised Code, as amended by this act, shall take effect on the one hundred eightieth day after the effective date of this act.
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