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H. B. No. 42 As IntroducedAs Introduced
126th General Assembly | Regular Session | 2005-2006 |
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Representatives Schaffer, McGregor, Reidelbach, Hoops, Taylor, Seitz, Raussen, J. Stewart, C. Evans, Beatty, Carano, D. Evans, Hartnett, Perry, Willamowski, Gilb, Allen, Hagan, Buehrer
A BILL
To amend sections 1702.01, 1702.02, 1702.08, 1702.11, 1702.17, 1702.18, 1702.19, 1702.20,
1702.22, 1702.25, 1702.27, 1702.31, 1702.33, 1702.38, 1702.39, 1702.42, 1702.47, and 1702.58 of
the Revised Code relating to the use of authorized communications equipment, including electronic
or telephonic transmissions, in certain meetings and
votings of nonprofit corporations and the authority
to take action on behalf of a nonprofit corporation
without a meeting of incorporators, directors, or
members.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1702.01, 1702.02, 1702.08, 1702.11, 1702.17, 1702.18, 1702.19, 1702.20,
1702.22, 1702.25, 1702.27, 1702.31, 1702.33, 1702.38, 1702.39, 1702.42, 1702.47, and 1702.58 of the Revised
Code be amended to read as follows: Sec. 1702.01. As used in this chapter, unless the context
otherwise requires: (A) "Corporation" or "domestic corporation" means a
nonprofit corporation formed under the laws of this state, or a
business corporation formed under the laws of this
state that,
by
amendment to its articles as provided by law, becomes a
nonprofit
corporation. (B) "Foreign corporation" means a nonprofit corporation
formed under the laws of another state. (C) "Nonprofit corporation" means a domestic or foreign
corporation
that is
formed otherwise than for the pecuniary gain
or profit of,
and whose net
earnings or any part of them is not
distributable to, its
members, directors, officers, or other
private persons,
except
that the payment of reasonable
compensation for services rendered
and the distribution of assets
on dissolution as permitted by
section 1702.49 of the Revised Code
is not pecuniary gain or
profit or distribution of net earnings.
In a corporation all of
whose members are nonprofit corporations,
distribution to members
does not deprive it of the status of a
nonprofit corporation. (D)
"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 a foreign country or nation. (E) "Articles" includes original articles of
incorporation,
agreements of merger or consolidation if and only to the
extent
that articles of incorporation are adopted or amended in the
agreements, 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. (F) "Incorporator" means a person who signed the original
articles of incorporation. (G) "Member" means one having membership rights and
privileges in a corporation in accordance with its articles or
regulations. (H) "Voting member" means a member possessing voting
rights,
either generally or in respect of the particular question
involved, as the case may be. (I) "Person" includes, but is not limited to, a nonprofit
corporation, a business corporation, a partnership,
an
unincorporated society or association, and two or more persons
having a joint or common interest. (J) The location of the "principal office" of a
corporation
is the place named as such in its articles. (K) "Directors" means the
persons vested with the authority
to conduct the affairs of the corporation irrespective of the
name, such as trustees, by which they are designated. (L) "Insolvent" means that the corporation is unable to
pay
its obligations as they become due in the usual course of its
affairs. (M)(1) Subject to division (M)(2) of
this section,
"volunteer" means a director, officer, or
agent of a
corporation, or another person associated with a
corporation, who
satisfies both of the following: (a) Performs services for or on behalf of, and under the
authority or auspices of, that corporation; (b) Does not receive compensation, either directly or
indirectly, for performing those services. (2) For purposes of division (M)(1) of this section,
"compensation" does not include any of the following: (a) Actual and necessary expenses that are incurred by a
volunteer in connection with the services performed for a
corporation, and that are reimbursed to the volunteer
or otherwise
paid; (b) Insurance premiums paid on behalf of a volunteer, and
amounts paid or reimbursed, pursuant to division (E) of section
1702.12 of the Revised Code; (N) "Business corporation" means any entity, as defined in
section 1701.01 of the Revised Code, other than a public benefit
corporation or a mutual
benefit corporation, that is organized
pursuant to Chapter 1701.
of the Revised Code. (O) "Mutual benefit corporation" means any corporation
organized
under this chapter other than a public benefit
corporation. (P) "Public benefit corporation" means a corporation that
is
recognized as exempt from federal income taxation under section
501(c)(3) of the "Internal Revenue
Code of 1986," 100 Stat.
2085,
26 U.S.C. 1, as amended, or is organized for
a public or
charitable purpose and that upon dissolution must distribute its
assets
to a public benefit corporation, the United States, a state
or any political subdivision of a state, or a person that is
recognized as
exempt from federal income taxation under section
501(c)(3) of the
"Internal
Revenue
Code of 1986," as amended.
"Public benefit corporation" does not
include a nonprofit
corporation that is organized by one or more municipal
corporations to further a public purpose that is not a charitable
purpose.
(Q) "Authorized communications equipment" means any communications equipment to which both of the following apply:
(1) The articles, regulations, or bylaws, or the regulations, constitution, or other fundamental agreement if section 1702.08 of the Revised Code applies, permit the use of the communications equipment for the purpose of giving notice of meetings or any notice required by this chapter, attending and participating in meetings, giving a copy of any document or transmitting any writing required or permitted under this chapter, or voting.
(2) The communications equipment provides a transmission, including, but not limited to, by telephone, telecopy, or any electronic means, from which it can be determined that the transmission was authorized by, and accurately reflects the intention of, the member or director involved and, with respect to meetings, allows all persons participating in the meeting to contemporaneously communicate with each other.
Sec. 1702.02. (A) Unless another form of notice is required
by
the
articles,
the regulations, the bylaws, or by applicable
law, any notice required by this
chapter
shall be in writing and
shall be delivered
personally or sent by telegram, telecopy, or
electronic mail
transmission by the use of authorized communications equipment, or by United States mail, express
mail, or
courier
service, with postage or fees prepaid. (B) In computing the period of time for the giving of a
notice
required or permitted under this chapter, or under the
articles, the regulations,
or the bylaws of a
corporation, or a
resolution of its members or
directors, the day on which the
notice is given shall be excluded, and the day when the act for
which notice
is given is to be done shall be included, unless the
instrument calling for
the notice otherwise provides. If notice
is given by
personal delivery or transmitted by telegram,
telecopy, or electronic
mail by the use of authorized communications equipment,
the notice shall be deemed to have
been given when delivered or
transmitted. If notice is sent by
United States mail,
express mail, or courier service, the notice
shall be deemed to have been
given when deposited in the mail or
with the courier service. (C) A written notice or report delivered as part of a
newsletter,
magazine, or other publication regularly sent to
members shall
constitute a written notice or report if addressed
or delivered to
the member's address shown in the corporation's
current list of
members, or, in the case of members who are
residents of the same
household and who have the same address in
the corporation's
current list of members, if addressed or
delivered to one of such
those members at the address appearing on the
corporation's current list
of members.
Sec. 1702.08. (A) When an unincorporated society or
association, organized
for any of the purposes for which a
corporation could be formed under
this chapter,
authorizes the
incorporation of such that society or association, by the same
procedure and
affirmative vote of its voting members as that the
regulations, constitution, or
other fundamental agreement of such
the society or association requires for an
amendment to such
that fundamental agreement or, if no such vote is specified, by a
majority vote of the voting members present in person or, if
permitted, by
mail or, by proxy, or by the use of authorized communications equipment, at a duly convened meeting the
purpose of which is stated in the notice of the meeting, then upon
the filing
of the articles under section 1702.04 of the Revised
Code setting forth such
those facts and that such the required vote has been
obtained, such that society or
association shall become a corporation,
and the members of such the society or
association shall become
members of such that corporation in accordance with
provisions in the
articles to that effect. (B) All the rights, privileges, immunities, powers,
franchises, and
authority,
and all the property and obligations of
such that unincorporated society or
association, shall thereupon pass
to, vest in, and (in the case of liabilities
and obligations) be
obligations of the corporation so formed.
Sec. 1702.11. (A) Without limiting the generality of such
authority, the regulations, whether designated a constitution or
rules, or by some other term, may include provisions with respect
to the following: (1) The time and 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 members, or their
elected representatives or delegates; (2) The qualifications, admission, voluntary withdrawal,
censure, and suspension of members, and the termination of
membership; (3) The fees and dues of members; (4) The rights of members or classes of members, or of
their
elected representatives or delegates, to vote; the manner
of
conducting votes of members on matters, including any right to
vote by mail, by the use of authorized communications equipment, if
permitted by this chapter, or by proxy; the specification of
the
relative
rights and privileges among
members and in the
property
of the
corporation; and limitations upon or regulations governing
the
right of members to examine the books and records of the
corporation; (5) The election of representatives or delegates of members
and their
authority, rights, and privileges; (6) The number, classification, manner of fixing or
changing
the number, qualifications, term of office, voting
rights,
compensation or manner of fixing compensation, and the
removal of
directors; (7) The time and 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; (8) The appointment of an executive and other committees
of
the directors or of members, their
authority, and the method by
which they take action; (9) The titles, qualifications, duties, term of office,
compensation or manner of fixing compensation, and the removal,
of
officers; (10) Defining, limiting, or regulating the exercise of the
authority of the corporation, the directors, the
officers, the
members, or any class of members; (11) The method by which voting members may change the
regulations; (12) Providing for the use of authorized communications equipment. (B)(1) In the absence of provisions in the articles or the
regulations with respect to the method of changing the
regulations, the regulations may be amended, or new regulations
may be adopted, by the voting members at a meeting held for such
purpose,
if a quorum is present, by the affirmative vote of a
majority of the voting
members present in person or, if permitted,
by mail, by the use of authorized communications equipment, or by proxy,
if a
quorum is present.
(2) For purposes of division (B)(1) of this section,
participation by a member in a meeting through the use of any of
the means of communication described in that division constitutes
presence in person of that member at the meeting for purposes of
determining a quorum. (C) The members of a nonprofit corporation may adopt or
authorize the directors to adopt, either before or
during an
emergency, as defined in division (U) of section 1701.01 of the
Revised Code, emergency regulations operative only during an
emergency. The emergency regulations may include such those provisions
as 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 regulations, and notwithstanding
any different
provisions in this chapter and any different
provision in the
articles or regulations that are not
expressly
stated to be
operative during an emergency, the emergency
regulations may make
any provision that may be practical or
necessary with respect to
meetings, committees, vacancies, and
temporary appointments of the
directors, and the rank
and
succession of officers, the same as
may be done by corporations
for profit under division (C) of
section 1701.11 of the Revised
Code. (D) Any change in the regulations made in accordance with
their provisions or pursuant to division (B) of this section
shall
be binding on all members. (E) If, pursuant to the regulations, such regulations are
amended or new regulations adopted without a meeting of the
voting
members, the secretary of the corporation shall send by mail, overnight delivery service, or authorized communications equipment a
copy of the
amendment or the new regulations to each voting
member who would
have been entitled to vote on the amendment or
new regulations and
did not participate in the adoption of the
amendment or new
regulations. If the secretary of the corporation mails the copy or sends it by overnight delivery service, the secretary shall send the copy of the amendment or the new regulations to the voting member at the voting member's address as it appears on the records of the corporation. If the secretary sends the copy by means of authorized communications equipment, the secretary shall send the copy of the amendment or the new regulations to the address provided by the voting member for transmissions by authorized communications equipment. (F) No person dealing with the corporation shall be
charged
with constructive notice of the regulations. (G) Unless expressly prohibited by the articles or
regulations, or unless otherwise provided by the emergency
regulations, and notwithstanding any different provision in this
chapter, the special rules provided for corporations for profit
under division (F) of section 1701.11 of the Revised Code are
applicable to a nonprofit corporation during an emergency, as
defined in division (U) of section 1701.01 of the Revised Code.
Sec. 1702.17. (A) Meetings of voting members 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) The lesser of (a) ten per cent of the voting members or
(b) twenty-five
of such
the voting members, unless the articles or the
regulations specify for such
purpose a smaller or larger
proportion or number, but not in excess of fifty
per cent of
such
the voting
members; (4)
Such
Any other officers or persons as that the articles or the
regulations
authorize to call such meetings. (B)
Meetings
If so provided in the articles or the
regulations, meetings of voting members may be held either within
or
without this
state
if so provided in the articles or the
regulations
or solely by means of authorized communications equipment. 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 voting members and proxyholders who are not physically present at a meeting of voting members may attend the meeting by the use of authorized communications equipment that enables the voting members and proxyholders an opportunity to participate in the meeting and to vote on matters submitted to the voting members, including an opportunity to read or hear the proceedings of the meeting, participate in the proceedings, and contemporaneously communicate with the persons who are physically present at the meeting. Any voting member who uses authorized communications equipment under this division is deemed to be present in person at the meeting whether the meeting is held at a designated place or solely by means of authorized communications equipment. The directors may adopt procedures and guidelines for the use of authorized communications equipment in connection with a meeting of voting members to permit the corporation to verify that a person is a voting member or proxyholder and to maintain a record of any vote or other action taken at the meeting.
Sec. 1702.18. Unless the articles or the regulations provide
for notice of
meetings otherwise than as provided in this section,
written notice stating
the time and place, if any, and the time of a meeting of and the means, if any, by which the
voting members can be present and vote at the meeting through the use of authorized communications equipment, and, in case of a
special meeting, the purpose or
purposes for which the meeting is called,
shall be given in the
manner
described in section 1702.02 of the Revised Code, not less
than ten or
not more than sixty days before the date of the
meeting: (A) to each
member
entitled to notice of the meeting; (B)
by or at the direction of the president
or the secretary or any
other person required or permitted by the regulations
to give
notice or the officers or persons calling the meeting. If mailed or sent by overnight delivery service,
such that notice shall be addressed to the member at the member's
address as it appears on
the records of the corporation. If sent by means of authorized communications equipment, that notice shall be sent to the address furnished by the voting member for transmissions by authorized communications equipment. Notice
of adjournment of a meeting need not
be given if the time and
place, if any, and the time to which it is adjourned and the procedure by which the voting members can be present and vote at the adjourned meeting through the use of authorized communications equipment are fixed and
announced at such
the meeting.
Sec. 1702.19. (A) Notice of the time, place, if any, the time, and the purposes of
any
meeting of
voting members or directors, as the case may be,
whether required by law, the
articles, the regulations, or (in the
case of
directors) the bylaws, may be
waived in writing, either
before or after the holding of such meeting, by any
member, or by
any director, which writing shall be filed
with or entered upon
the records of the meeting.
The attendance of any member or any
director at
any such meeting A transmission by authorized communications equipment that contains a waiver is a writing for purposes of this division.
(B) If a member or director attends a meeting described in
division (A) of this section without protesting, prior to or at
the commencement of the
meeting,
then the lack of proper notice
shall
be deemed to be a waiver by
the member or director of
notice of
such
the meeting.
(C) A member or director shall be considered in attendance at
a meeting described in division (A) of this section, if the member
or director is present in person or, if permitted by the
regulations, is present by the use of authorized communications equipment.
Sec. 1702.20. (A) Except as otherwise provided in the
articles or the
regulations, each member, regardless of class,
shall be entitled to one vote
on each matter properly submitted to
the members for their vote, consent,
waiver, release, or other
action.
The (B) The articles or the regulations may provide
that voting
at elections and votes on other matters may be conducted by mail or by the use of authorized communications equipment.
Unless (C) Participation by a member in a meeting through the use of
any of the means of communication described in division (B) of
this section constitutes presence in person of that member at the
meeting. The directors may adopt procedures and guidelines for the use of authorized communications equipment to permit the corporation to verify that a person is a voting member and to maintain a record of any vote.
(D) Unless
the articles or the regulations otherwise
provide, no member who is a
natural person shall vote or act by
proxy.
Sec. 1702.22. Unless the articles or the regulations
otherwise provide: (A)(1) The voting members present in person or, if
permitted,
by mail or, by
proxy, or by the use of authorized communications equipment at any meeting of voting members
shall
constitute a quorum for
such
the meeting.
The (2) The affirmative
vote of a
majority of the voting members
present at a meeting at which a
quorum is present as provided in division (A)(1) of this section shall be
necessary for the authorization or
taking of any
action voted upon
by the members, except that no
action required by law,
the
articles, or the regulations to be
authorized or taken by a
specified
proportion or number of the
voting members or of any
class of voting members
may be authorized
or taken by a lesser
proportion or number. (B)
A majority of the voting members present at a meeting,
whether or
not a
quorum is present, may adjourn such the meeting from
time to time.
Sec. 1702.25. (A) Unless the articles or the regulations
prohibit the
authorization or taking of any action of the
incorporators, the
members, or the directors
without a meeting,
any action that may be authorized or
taken at a meeting of
the
incorporators, the members, or 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 of the
incorporators,
all of the
members,
or
all of
the directors, as the case
may be,
who would be
entitled to
notice of a meeting for such that purpose, or, in
the case
of members,
such any other proportion or number of voting members, not
less than a
majority, as that the articles or the regulations permit.
Any such
writing
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
described in this division
that is required to be filed in the
office of the
secretary of state shall
recite that the
authorization or taking
of such that action was in a writing or
writings approved and signed as
specified in this section. (B) Any transmission by authorized communications equipment that contains an affirmative vote or approval of the person described in division (A) of this section is a signed writing for purposes of this section. The date on which that transmission by authorized communications equipment is sent is the date on which the writing is signed.
Sec. 1702.27. (A) Except as provided in division (B) of
this section and
section 1702.521 of the Revised Code: (1) The number of directors as fixed by the articles
or the
regulations shall
be not less than three or, if not so fixed, the
number shall be three,
except that if there are only one or two
members of the corporation, the
number of directors may be less
than three but not less than the number of
members. (2)
Unless
(a) Subject to division (A)(2)(c) of this section,
unless the articles or the regulations fix the number of
directors or
provide the manner in which such that number may be fixed
or changed by the voting
members, the number may be fixed or
changed at a meeting of the voting members
called for the purpose
of electing directors,
if a quorum is present, by the
affirmative
vote of a
majority of
the voting members present in person or, if
permitted, by mail, by the use of authorized communications equipment,
or
by proxy,
if.
(b) For purposes of division (A)(2)(a) of this section,
participation by a voting member in a meeting through the use of any of
the means of communication described in that division constitutes
presence in person of that voting member at the meeting for purposes of
determining a quorum
is present, but no. (c) No
reduction in the number
of directors shall of itself
have the effect of
shortening the
term of any incumbent director. (3) The director shall have such the qualifications, if
any, as
that are stated in the
articles or the regulations. (4) The articles or the regulations may provide that persons
occupying
certain positions within or without the corporation
shall be ex officio
directors, but, unless otherwise provided in
the
articles or the regulations,
such ex officio directors shall
not be considered for
quorum purposes and shall
have no vote. (B) The court of common pleas of the county in which the
corporation
maintains its principal office may, pursuant to
division (A) of section
1702.521 of the Revised Code, order the
appointment of a provisional
director
for the corporation without
regard to the number or qualifications of
directors
stated in the
articles or regulations of the corporation.
Sec. 1702.31. Unless otherwise provided in the articles,
regulations, or bylaws, and subject to the exceptions applicable
during an emergency for which provision is made in division (G)
of
section 1702.11 of the Revised Code: (A) Meetings of the directors may be called by the
chairperson
of the board, the president, any vice-president, or
any two
directors;. (B) Meetings of the directors may be held at any place
within or without the state
and,
including by means of authorized communications equipment, unless the articles or
regulations prohibit
participation by directors at a
meeting by
means of
authorized communications equipment, meetings of the
directors may
be held
through any communications equipment if all persons
participating
can hear each other
and participation. Participation in a meeting
pursuant to this division
shall constitute
constitutes presence at
such
that meeting;. (C) Written notice Notice of the time and place, if any, and time of each meeting
of
the directors shall be given to each
director either by personal
delivery or by mail,
telegram by overnight delivery service, or cablegram by means of authorized communications equipment at
least two days
before the meeting, which. That notice need not specify
the purposes of
the meeting;. (D) Notice of adjournment of a meeting need not be given
if
the time and place to which it is adjourned are fixed and
announced at such that meeting.
Sec. 1702.33. (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. (B) The directors may appoint one or more
directors as
alternate members of any
such 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
such 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
such 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
Meetings of committees described in division (A)
of this section may be held by any means of authorized communications equipment, unless
participation by members of
any such
the committee
at
a meeting by
means of authorized 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
such
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. Sec. 1702.38. (A) The articles may be amended from time
to
time in any respect if the articles as amended set forth all
such
the provisions as that are required in, and only such those provisions as
that may
properly be in, original articles filed at the time of
adopting
the amendment, other than with respect to the initial
directors,
except that a
public benefit corporation shall not amend
its
articles in such manner that it will cease to be a
public benefit
corporation. (B) Without limiting the generality of such the authority described in division (A) of this section, the
articles may be amended to: (1) Change the name of the corporation; (2) Change the place in this state where its principal
office is to be located; (3) Change, enlarge, or diminish its purpose or purposes; (4) Change any provision of the articles or add any
provision that may properly be included therein in the articles. (C)(1) The voting members present in person or, if permitted,
by mail or, by
proxy, or by use of authorized communications equipment, at a meeting held for such that purpose,
may adopt
an amendment by the affirmative vote of a majority of
the voting
members present if a quorum is present, or, if the
articles or the
regulations provide or permit, by the affirmative
vote of a
greater or lesser proportion or number of the voting
members, and
by such the affirmative vote of the voting members of
any particular
class as that is required by the articles or the
regulations.
(2) For purposes of division (C)(1) of this section, participation by a voting member at a meeting through the use of any of the means of communication described in that division constitutes presence in person of that voting member at the meeting for purposes of determining a quorum. (D) In addition to or in lieu of adopting an amendment to
the articles, the voting members may adopt amended articles by
the
same action or vote as that required to adopt the amendment. (E) The directors may adopt amended articles to
consolidate
the original articles and all previously adopted amendments to
the
articles that are in force at the time, or the voting members
at a
meeting held for such that purpose may adopt such the amended
articles by
the same vote as that required to adopt an amendment. (F) Amended articles shall set forth all such the provisions
as
that are required in, and only such the provisions as that may properly be
in,
original articles filed at the time of adopting the amended
articles, other than with respect to the initial
directors, and
shall contain a statement that they supersede the existing
articles. (G) 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
directors, a statement of the basis
for such
adoption, shall be
filed with the secretary of state, and
thereupon upon that filing the articles
shall be amended accordingly, and the
amended articles shall
supersede the existing articles. The
certificate shall be signed
by any authorized officer of the
corporation. (H) 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 that 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 That copy shall be recorded in the
records of
deeds.
Sec. 1702.39. (A)(1) Unless the articles or the regulations,
or the terms of
any trust on which the corporation holds any
particular property, otherwise
provide, a lease, sale, exchange,
transfer, or other disposition of any assets
of a mutual benefit
corporation may be made without the necessity of
procuring
authorization
from the court under section 1715.39 of the Revised
Code, upon such the terms and
for such the consideration, which may
consist, in whole or in part, of money or
other property,
including shares or other securities or promissory obligations
of
any business corporation, domestic or foreign, as
that may be
authorized by
the directors, except that a lease, sale,
exchange,
transfer, or other
disposition of all, or substantially all, the
assets may be made only when
such that transaction is also authorized
(either before or after authorization by
the directors) by the
voting members present in
person or, if permitted, by mail, by proxy, or by the use of authorized communications equipment, at a
meeting held for such
that purpose, by the
affirmative vote of a
majority of the voting members present as described in this division, if a quorum is
present, or,
if the articles or the regulations provide or permit, by the
affirmative vote of a greater or lesser proportion or number of
the voting
members, and by such the affirmative vote of the voting
members of any particular
class as that is required by the articles or
the regulations. Notice of the
meeting of the members shall be
given to all members
entitled
to vote thereat at the meeting. Such notice shall
be accompanied by a copy or summary of the
terms of such
that transaction. (2) For purposes of division (A)(1) of this section, participation by a voting member at a meeting through the use of any of the means of communication described in that division constitutes presence in person of that voting member at the meeting for purposes of determining a quorum. (B)(1) A public benefit corporation may not
dispose of its
assets with value equal to more than
fifty per cent of the fair
market value of the net tangible and
intangible assets, including
goodwill, of the corporation over a
period of thirty-six
consecutive months in a transaction or
series of transactions,
including the lease,
sale, exchange, transfer, or other
disposition of those assets,
that are outside the ordinary course
of its
business or that are not in accordance with the purpose or
purposes for which
the
corporation was organized, as set forth in
its articles or the
terms of any trust on which the corporation
holds such assets,
unless one or more of the following apply: (a) The transaction has received the prior approval of the
court
of common pleas of the county in this state in which the
principal office of the corporation is located, in a proceeding of
which the attorney general's charitable law section has been given
written
notice
by certified mail within three days of the
initiation of the proceeding,
and in which proceeding the attorney
general may
intervene as of right. (b)(i) The corporation has provided written notice of the
proposed
transaction, including a copy or summary of the terms of
such transaction,
at least twenty days before consummation of the
lease, sale, exchange,
transfer, or other disposition of the
assets, to the attorney
general's charitable law section and to
the members of the corporation, and
the proposed
transaction has
been approved by the voting members present in
person or, if
permitted, by mail, by proxy, or by the use of authorized communications equipment, at a meeting held for such
that purpose, by the
affirmative vote of a majority of the voting members present as described in this division, if a
quorum is present, or, if the articles or regulations provide or
permit, by the affirmative vote of a greater or lesser proportion
or number of
the voting members, and if the articles or
regulations
require, by the affirmative
vote of the voting members
of any particular class.
(ii) For purposes of division (B)(1)(b)(i) of this section, participation by a voting member at a meeting through the use of any of the means of communication described in that division constitutes presence in person of that voting member at the meeting for purposes of determining a quorum. (c) The transaction is in accordance with the purpose or
purposes for which the corporation was organized, as set forth in
its
articles or the terms of any trust on which the corporation
holds
the assets, and the lessee, purchaser, or transferee of the
assets is also a public benefit corporation or a foreign
corporation that would qualify under the Revised Code as a
public
benefit corporation. (2) The attorney general may require, pursuant to section
109.24
of the Revised Code, the production of the documents
necessary for
review of a proposed transaction under division
(B)(1) of this
section. The attorney general may retain, at the
expense of the public
benefit corporation, one or
more experts,
including an investment banker, actuary, appraiser, certified
public accountant, or
other expert, that the attorney general
considers reasonably
necessary to provide assistance in reviewing
a proposed transaction under
division (B)(1) of this section.
(C) The attorney general may institute a civil action to
enforce
the requirements of division (B)(1) of this section in the
court of
common pleas of the county in this state in which the
principal office of the
corporation is
located or in the Franklin
county
court of
common
pleas. In addition to any civil
remedies
that may exist under common law or the Revised
Code, a
court may
rescind the transaction or grant injunctive relief or
impose any
combination of these remedies. (D) The corporation by its directors may
abandon the
proposed lease,
sale,
exchange, transfer, or other disposition of
the
assets of the corporation pursuant to division (A) or (B)
of
this section, subject to the contract rights of other persons, if
such that power of abandonment is conferred upon the
directors either
by the terms
of the transaction or by the same vote of voting
members and at the same
meeting of members as that referred to in
division (A) or (B)
of this section, as applicable, or at
any
subsequent meeting. (E) 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 the
assets
of such
corporation has not been complied with, shall be
brought within one year
after such that transaction, or the action
shall be forever
barred.
Sec. 1702.42. (A) The directors of each constituent
corporation, upon
approving an agreement of merger or
consolidation, shall
direct that the
agreement be submitted to the
voting members entitled to vote on it at a
meeting of voting
members of such corporation held for that
purpose, and
notice of
such the meeting shall be given to all members of such the constituent
corporation entitled to vote thereat at the meeting. The notice shall
be
accompanied by a copy or summary of the agreement. (B)(1) At each such meeting described in division (A) of this section, a vote of the members shall be
taken on the
proposed agreement. In order to be adopted, the
agreement (including any
amendments or additions thereto to the agreement proposed
at each such meeting) must receive
the affirmative vote of a
majority of the voting members of each constituent
corporation
present at that meeting in person or, if permitted, by mail or, by
proxy, at each
such meeting or by the use of authorized communications equipment, if a quorum is present, or, if the
articles or the
regulations of such that corporation provide or permit, the
affirmative
vote of a greater or lesser proportion or number of the voting
members, and such the affirmative vote of the voting members of any
particular
class as that is required by the articles or the regulations
of such corporation.
If the agreement would authorize any
particular corporate action
that, under
any applicable provision
of law or under the existing articles of one or more
of the
constituent corporations, could be authorized only by or pursuant
to a
specified vote of voting members, such the agreement (including
any amendments or
additions thereto to the agreement proposed at each such meeting)
in order to be adopted must
receive the affirmative vote so
specified.
(2) For purposes of division (B)(1) of this section, participation by a voting member at a meeting through the use of any of the means of communication described in that division constitutes presence in person of that voting member at the meeting for purposes of determining a quorum. (C) At any time prior to the filing of the agreement, the
merger or
consolidation may be abandoned by the directors of one
or more of the
constituent corporations, if the power of
abandonment is
conferred upon such
those directors either by the
agreement or by the same vote
of voting members of each
of the
constituent corporations and at the same meetings as those
referred to
in division (B) of this section or at subsequent
meetings.
Sec. 1702.47. (A) A corporation may be dissolved
voluntarily in the manner provided in this section. (B) A resolution of dissolution for a corporation shall
set
forth: (1) That the corporation elects to be dissolved; (2) Any additional provision deemed necessary with respect
to the proposed dissolution and winding up. (C) The directors may adopt a resolution of
dissolution in
the following cases: (1) When the corporation has been adjudged bankrupt or has
made a general assignment for the benefit of creditors; (2) By leave of the court, when a receiver has been
appointed in a general creditors' suit or in any suit in which
the
affairs of the corporation are to be wound up; (3) When substantially all of the assets have been sold at
judicial sale or otherwise; (4) When the period of existence of the corporation
specified in its articles has expired. (D)(1) The voting members at a meeting held for such that purpose
may adopt a resolution of dissolution by the affirmative vote of
a
majority of the voting members present in person or, if permitted,
by
mail or, by proxy, or by the use of authorized communications equipment, if a quorum is present
or, if the articles or
the regulations provide or permit, by the
affirmative vote of a
greater or lesser proportion or number of
the voting members, and
by such the affirmative vote of the voting
members or the affirmative vote of the voting members of any particular
class as that is required by the articles or
the regulations. Notice
of the meeting of the members shall be
given sent to all the members
who would be entitled to vote thereat at the meeting by mail, overnight delivery service, or any authorized communications equipment.
(2) For purposes of division (D)(1) of this section, participation by a voting member at a meeting through the use of any of the means of communication described in that division constitutes presence in person of that voting member at the meeting for purposes of determining a quorum. (E) Upon the adoption of a resolution of dissolution, a
certificate shall be prepared, on a form prescribed by the
secretary
of state, setting forth the following: (1) The name of the corporation; (2) A statement that a resolution of dissolution has been
adopted; (3) A statement of the manner of adoption of such
that resolution, and, in the case of its adoption by the
directors, a
statement of the basis for such the adoption; (4) The place in this state where its principal office is
or
is to be located; (5) The names and addresses of its directors and
officers; (6) The name and address of its statutory agent; (7) The date of dissolution, if other than the filing date. (F) Such The certificate described in division (E) of this section shall be signed by any authorized
officer, unless
the officer fails to execute and file such
the certificate within thirty days after the
adoption of the
resolution, or upon any date specified in the
resolution as the
date upon which such the certificate is to be
filed, or upon the
expiration of any period specified in the
resolution as the period
within which such the certificate is to be
filed, whichever is latest,
in which event the certificate of
dissolution may be signed by any
three voting members and shall
set forth a statement that the
persons signing the certificate
are voting members and are filing
the certificate because of the
failure of the officers to do so. (G) A certificate of dissolution, filed with the secretary
of state, shall be accompanied by: (1) An affidavit of one or more of the persons executing
the
certificate of dissolution or of an officer of the
corporation
containing a statement of the counties, if any, in
this state in
which the corporation has personal property subject
to personal
property taxes or a statement that the corporation is
of a type
required to pay personal property taxes to state
authorities only; (2) A receipt, certificate, or other evidence showing the
payment of all personal property taxes accruing up to the date of
such filing
or, if applicable, to the later date specified in the
certificate of dissolution in accordance with division (E) of this
section, unless the affidavit provided for in division (G)(1)
of
this
section states that the corporation has in this state
no
personal property subject to personal property taxes; (3) A receipt, certificate, or other evidence from the
director of job and family
services showing that all contributions
due
from the corporation as an employer have been paid, or that
such
payment has been adequately guaranteed, or that the
corporation
is not subject to such contributions; (4) A receipt, certificate, or other evidence showing the
payment of all sales, use, and highway use taxes accruing up to
the date of such filing
or, if applicable, to the later date
specified in the certificate of dissolution in accordance with
division (E) of this section, or that such payment has been
adequately
guaranteed; (5) In lieu of the receipt, certificate, or other evidence
described in division (G)(2), (3), or (4) of this section, an
affidavit of one or more of the persons executing the certificate
of dissolution or of an officer of the corporation containing a
statement of the date upon which the particular department,
agency, or authority was advised in writing of the scheduled
effective date
of the
dissolution and
was advised
in
writing of
the acknowledgement by the corporation
of the
applicability of
section 1702.55 of the Revised Code. (H) Upon the filing of a certificate of dissolution and
such
those accompanying documents
or on a later date specified in the
certificate that is not more than ninety days after the filing,
the corporation shall be dissolved.
Sec. 1702.58. (A) Except as provided in sections 1702.01 to
1702.58 of the Revised Code, the provisions of those
sections
shall
apply
only to domestic corporations, and except as otherwise
provided in this
section, the provisions of those sections shall
apply to
all domestic
corporations, whether formed under those
sections or under
previous laws of
this state. (B) Special provisions in the Revised Code for the
organization, conduct, or
government of designated classes of
corporations shall govern to the exclusion
of the provisions of
sections 1702.01 to 1702.58 of the
Revised
Code on the same
subject, except where it clearly appears that a
special
provision
is cumulative, in which case, that provision and the
provisions of
those sections
on the same subject shall apply. (C) A corporation incorporated prior to June 9, 1927, with
authority to issue
shares may continue to issue and reissue
shares in
accordance with its
articles, but shall be without
authority to amend its articles in order to
increase the
authorized number of shares. (D) A corporation created before September 1, 1851, that
(1) has expressly
elected to be governed by the laws passed since
that date,; (2) subsequent to
that date has taken such action under
laws then in effect as to make it
subject, as a matter of law, to
the Constitution of 1851 and laws passed
thereunder, under the Constitution of 1851; or (3)
subsequent to October 1, 1955, takes any action under
sections
1702.01 to 1702.58 of the Revised Code, or any of
them,
that but
for those sections it would
not be authorized to take, shall be
deemed to be a corporation exercising its corporate privileges
under the
Constitution of this state and the laws passed in
pursuance thereof of the Constitution of this state, and not
otherwise. (E)(1) A corporation created before September 1, 1851, and
actually carrying on
its activities in this state, and which prior
to October 11, 1955, has
not
taken action described in division
(D) of this section, may accept the
provisions of sections 1702.01
to 1702.58 of the Revised
Code at
a meeting of voting members held
for such that purpose, by a resolution to that
effect adopted by the
affirmative vote of a majority of the voting members
present in
person or, if permitted, by mail or, by proxy, or by the use of authorized communications equipment, if a
quorum is
present, and by filing in the office of the secretary
of
state a
copy of the resolution certified by any authorized officer
of
the corporation, for which
filing the secretary of state shall
charge and collect a fee of five dollars.
Thereafter the
corporation shall be deemed to exercise its
corporate privileges
under the Constitution of this state and the laws
passed
in
pursuance thereof of the Constitution of this state, and not otherwise.
(2) For purposes of division (E)(1) of this section, participation by a voting member at a meeting through the use of any of the means of communication described in that division constitutes presence in person of that voting member at the meeting for purposes of determining a quorum. (F) Except as provided in divisions (D) and (E) of this
section, a
corporation created before September 1, 1851, shall be
governed by the laws
in force on that date as modified since that
date. (G) A domestic business corporation, upon compliance
with
the provision of
the Revised Code as that is in effect from time to time
relating to such
that business corporation's
becoming a nonprofit
corporation upon amendment to its articles or upon
adoption of
amended articles, as provided by law, shall, upon filing the
prescribed certificate in the office of the secretary of state,
become a
corporation subject to the provisions of, and entitled to
all the rights,
privileges, immunities, powers, franchises, and
authority granted by,
this chapter.
Section 2. That existing sections 1702.01, 1702.02, 1702.08, 1702.11, 1702.17, 1702.18, 1702.19,
1702.20, 1702.22, 1702.25, 1702.27, 1702.31, 1702.33, 1702.38, 1702.39, 1702.42, 1702.47, and 1702.58 of the
Revised Code are hereby repealed.
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