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Sub. H. B. No. 267 As Reported by the Senate Insurance, Commerce and Labor CommitteeAs Reported by the Senate Insurance, Commerce and Labor Committee
129th General Assembly | Regular Session | 2011-2012 |
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Cosponsors:
Representatives Combs, Letson, Stebelton, Murray, Adams, R., Barnes, Beck, Blair, Blessing, Carney, Dovilla, Duffey, Gardner, Garland, Gonzales, Grossman, Hackett, Hayes, Huffman, Luckie, O'Brien, Patmon, Pillich, Sears, Slaby, Sprague, Terhar, Weddington, Winburn, Young Speaker Batchelder
Senator Beagle
A BILL
To amend sections 9.231, 169.01, 1702.01, 1702.05,
1702.41, 1702.42, 1702.43, 1702.44, 1702.46,
1702.462, 2901.23, 3955.06, 3956.06, 4121.70,
4303.201, 4303.204, 4303.207, 5111.151, and
5701.13; to enact sections 1702.411, 1745.05 to
1745.46, 1745.461, and 1745.47 to 1745.57; and to
repeal sections 1702.45, 1745.01, 1745.02, and
1745.04 of the Revised Code to adopt the Revised
Uniform Unincorporated Nonprofit Association Act
and to revise the merger and consolidation
provisions of the Nonprofit Corporation Law.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 9.231, 169.01, 1702.01, 1702.05,
1702.41, 1702.42, 1702.43, 1702.44, 1702.46, 1702.462, 2901.23,
3955.06, 3956.06, 4121.70, 4303.201, 4303.204, 4303.207, 5111.151,
and 5701.13 be amended, and sections 1702.411, 1745.05, 1745.06,
1745.07, 1745.08, 1745.09, 1745.10, 1745.11, 1745.12, 1745.13,
1745.14, 1745.15, 1745.16, 1745.17, 1745.18, 1745.19, 1745.20,
1745.21, 1745.22, 1745.23, 1745.24, 1745.25, 1745.26, 1745.27,
1745.28, 1745.29, 1745.30, 1745.31, 1745.32, 1745.33, 1745.34,
1745.35, 1745.36, 1745.37, 1745.38, 1745.39, 1745.40, 1745.41,
1745.42, 1745.43, 1745.44, 1745.45, 1745.46, 1745.461, 1745.47,
1745.48, 1745.49, 1745.50, 1745.51, 1745.52, 1745.53, 1745.54,
1745.55, 1745.56, and 1745.57 of the Revised Code be enacted to
read as follows:
Sec. 9.231. (A)(1) Subject to divisions (A)(2) and (3) of
this section, a governmental entity shall not disburse money
totaling twenty-five thousand dollars or more to any person for
the provision of services for the primary benefit of individuals
or the public and not for the primary benefit of a governmental
entity or the employees of a governmental entity, unless the
contracting authority of the governmental entity first enters into
a written contract with the person that is signed by the person or
by an officer or agent of the person authorized to legally bind
the person and that embodies all of the requirements and
conditions set forth in sections 9.23 to 9.236 of the Revised
Code. If the disbursement of money occurs over the course of a
governmental entity's fiscal year, rather than in a lump sum, the
contracting authority of the governmental entity shall enter into
the written contract with the person at the point during the
governmental entity's fiscal year that at least seventy-five
thousand dollars has been disbursed by the governmental entity to
the person. Thereafter, the contracting authority of the
governmental entity shall enter into the written contract with the
person at the beginning of the governmental entity's fiscal year,
if, during the immediately preceding fiscal year, the governmental
entity disbursed to that person an aggregate amount totaling at
least seventy-five thousand dollars.
(2) If the money referred to in division (A)(1) of this
section is disbursed by or through more than one state agency to
the person for the provision of services to the same population,
the contracting authorities of those agencies shall determine
which one of them will enter into the written contract with the
person.
(3) The requirements and conditions set forth in divisions
(A), (B), (C), and (F) of section 9.232, divisions (A)(1) and (2)
and (B) of section 9.234, divisions (A)(2) and (B) of section
9.235, and sections 9.233 and 9.236 of the Revised Code do not
apply with respect to the following:
(a) Contracts to which all of the following apply:
(i) The amount received for the services is a set fee for
each time the services are provided, is determined in accordance
with a fixed rate per unit of time or per service, or is a
capitated rate, and the fee or rate is established by competitive
bidding or by a market rate survey of similar services provided in
a defined market area. The market rate survey may be one conducted
by or on behalf of the governmental entity or an independent
survey accepted by the governmental entity as statistically valid
and reliable.
(ii) The services are provided in accordance with standards
established by state or federal law, or by rules or regulations
adopted thereunder, for their delivery, which standards are
enforced by the federal government, a governmental entity, or an
accrediting organization recognized by the federal government or a
governmental entity.
(iii) Payment for the services is made after the services are
delivered and upon submission to the governmental entity of an
invoice or other claim for payment as required by any applicable
local, state, or federal law or, if no such law applies, by the
terms of the contract.
(b) Contracts under which the services are reimbursed through
or in a manner consistent with a federal program that meets all of
the following requirements:
(i) The program calculates the reimbursement rate on the
basis of the previous year's experience or in accordance with an
alternative method set forth in rules adopted by the Ohio
department of job and family services.
(ii) The reimbursement rate is derived from a breakdown of
direct and indirect costs.
(iii) The program's guidelines describe types of expenditures
that are allowable and not allowable under the program and
delineate which costs are acceptable as direct costs for purposes
of calculating the reimbursement rate.
(iv) The program includes a uniform cost reporting system
with specific audit requirements.
(c) Contracts under which the services are reimbursed through
or in a manner consistent with a federal program that calculates
the reimbursement rate on a fee for service basis in compliance
with United States office of management and budget Circular A-87,
as revised May 10, 2004.
(d) Contracts for services that are paid pursuant to the
earmarking of an appropriation made by the general assembly for
that purpose.
(B) Division (A) of this section does not apply if the money
is disbursed to a person pursuant to a contract with the United
States or a governmental entity under any of the following
circumstances:
(1) The person receives the money directly or indirectly from
the United States, and no governmental entity exercises any
oversight or control over the use of the money.
(2) The person receives the money solely in return for the
performance of one or more of the following types of services:
(a) Medical, therapeutic, or other health-related services
provided by a person if the amount received is a set fee for each
time the person provides the services, is determined in accordance
with a fixed rate per unit of time, or is a capitated rate, and
the fee or rate is reasonable and customary in the person's trade
or profession;
(b) Medicaid-funded services, including administrative and
management services, provided pursuant to a contract or medicaid
provider agreement that meets the requirements of the medicaid
program established under Chapter 5111. of the Revised Code.
(c) Services, other than administrative or management
services or any of the services described in division (B)(2)(a) or
(b) of this section, that are commonly purchased by the public at
an hourly rate or at a set fee for each time the services are
provided, unless the services are performed for the benefit of
children, persons who are eligible for the services by reason of
advanced age, medical condition, or financial need, or persons who
are confined in a detention facility as defined in section 2921.01
of the Revised Code, and the services are intended to help promote
the health, safety, or welfare of those children or persons;
(d) Educational services provided by a school to children
eligible to attend that school. For purposes of division (B)(2)(d)
of this section, "school" means any school operated by a school
district board of education, any community school established
under Chapter 3314. of the Revised Code, or any nonpublic school
for which the state board of education prescribes minimum
education standards under section 3301.07 of the Revised Code.
(e) Services provided by a foster home as defined in section
5103.02 of the Revised Code;
(f) "Routine business services other than administrative or
management services," as that term is defined by the attorney
general by rule adopted in accordance with Chapter 119. of the
Revised Code;
(g) Services to protect the environment or promote
environmental education that are provided by a nonprofit entity or
services to protect the environment that are funded with federal
grants or revolving loan funds and administered in accordance with
federal law.
(3) The person receives the money solely in return for the
performance of services intended to help preserve public health or
safety under circumstances requiring immediate action as a result
of a natural or man-made emergency.
(C) With respect to a an unincorporated nonprofit
association, corporation, or organization established for the
purpose of providing educational, technical, consulting, training,
financial, or other services to its members in exchange for
membership dues and other fees, any of the services provided to a
member that is a governmental entity shall, for purposes of this
section, be considered services "for the primary benefit of a
governmental entity or the employees of a governmental entity."
Sec. 169.01. As used in this chapter, unless the context
otherwise requires:
(A) "Financial organization" means any bank, trust company,
savings bank, safe deposit company, mutual savings bank without
mutual stock, savings and loan association, credit union, or
investment company.
(B)(1) "Unclaimed funds" means any moneys, rights to moneys,
or intangible property, described in section 169.02 of the Revised
Code, when, as shown by the records of the holder, the owner has
not, within the times provided in section 169.02 of the Revised
Code, done any of the following:
(a) Increased, decreased, or adjusted the amount of such
funds;
(b) Assigned, paid premiums, or encumbered such funds;
(c) Presented an appropriate record for the crediting of such
funds or received payment of such funds by check, draft, or
otherwise;
(d) Corresponded with the holder concerning such funds;
(e) Otherwise indicated an interest in or knowledge of such
funds;
(f) Transacted business with the holder.
(2) "Unclaimed funds" does not include any of the following:
(a) Money received or collected under section 9.39 of the
Revised Code;
(b) Any payment or credit due to a business association from
a business association representing sums payable to suppliers, or
payment for services rendered, in the course of business,
including, but not limited to, checks or memoranda, overpayments,
unidentified remittances, nonrefunded overcharges, discounts,
refunds, and rebates;
(c) Any payment or credit received by a business association
from a business association for tangible goods sold, or services
performed, in the course of business, including, but not limited
to, checks or memoranda, overpayments, unidentified remittances,
nonrefunded overcharges, discounts, refunds, and rebates;
(d) Any credit due a retail customer that is represented by a
gift certificate, gift card, merchandise credit, or merchandise
credit card, redeemable only for merchandise.
For purposes of divisions (B)(2)(b) and (c) of this section,
"business association" means any corporation, joint venture,
business trust, limited liability company, partnership,
association, or other business entity composed of one or more
individuals, whether or not the entity is for profit.
(C) "Owner" means any person, or the person's legal
representative, entitled to receive or having a legal or equitable
interest in or claim against moneys, rights to moneys, or other
intangible property, subject to this chapter.
(D)(1) "Holder" means any person that has possession,
custody, or control of moneys, rights to moneys, or other
intangible property, or that is indebted to another, if any of the
following applies:
(a) Such person resides in this state;
(b) Such person is formed under the laws of this state;
(c) Such person is formed under the laws of the United States
and has an office or principal place of business in this state;
(d) The records of such person indicate that the last known
address of the owner of such moneys, rights to moneys, or other
intangible property is in this state;
(e) The records of such person do not indicate the last known
address of the owner of the moneys, rights to moneys, or other
intangible property and the entity originating or issuing the
moneys, rights to moneys, or other intangible property is this
state or any political subdivision of this state, or is
incorporated, organized, created, or otherwise located in this
state. Division (D)(1)(e) of this section applies to all moneys,
rights to moneys, or other intangible property that is in the
possession, custody, or control of such person on or after July
22, 1994, whether the moneys, rights to moneys, or other
intangible property becomes unclaimed funds prior to or on or
after that date.
(2) "Holder" does not mean any hospital granted tax-exempt
status under section 501(c)(3) of the Internal Revenue Code or any
hospital owned or operated by the state or by any political
subdivision. Any entity in order to be exempt from the definition
of "holder" pursuant to this division shall make a reasonable,
good-faith effort to contact the owner of the unclaimed funds.
(E) "Person" includes a natural person; corporation, whether
for profit or not for profit; copartnership; unincorporated
nonprofit association or organization; public authority; estate;
trust; two or more persons having a joint or common interest;
eleemosynary organization; fraternal or cooperative association;
other legal or community entity; the United States government,
including any district, territory, possession, officer, agency,
department, authority, instrumentality, board, bureau, or court;
or any state or political subdivision thereof, including any
officer, agency, board, bureau, commission, division, department,
authority, court, or instrumentality.
(F) "Mortgage funds" means the mortgage insurance fund
created by section 122.561 of the Revised Code, and the housing
guarantee fund created by division (D) of section 128.11 of the
Revised Code.
(G) "Lawful claims" means any vested right a holder of
unclaimed funds has against the owner of such unclaimed funds.
(H) "Public utility" means any entity defined as such by
division (A) of section 745.01 or by section 4905.02 of the
Revised Code.
(I) "Deposit" means to place money in the custody of a
financial organization for the purpose of establishing an
income-bearing account by purchase or otherwise.
(J) "Income-bearing account" means a time or savings account,
whether or not evidenced by a certificate of deposit, or an
investment account through which investments are made solely in
obligations of the United States or its agencies or
instrumentalities or guaranteed as to principal and interest by
the United States or its agencies or instrumentalities, debt
securities rated as investment grade by at least two nationally
recognized rating services, debt securities which the director of
commerce has determined to have been issued for the safety and
welfare of the residents of this state, and equity interests in
mutual funds that invest solely in some or all of the above-listed
securities and involve no general liability, without regard to
whether income earned on such accounts, securities, or interests
is paid periodically or at the end of a term.
(K) "Director of commerce" may be read as the "division of
unclaimed funds" or the "superintendent of unclaimed funds."
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 other than a public
benefit entity.
(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 that 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.
(R) "Entity" means any of the following:
(1) A nonprofit corporation existing under the laws of this
state or any other state;
(2) A business corporation existing under the laws of this
state or any other state;
(3) Any of the following organizations existing under the
laws of this state, the United States, or any other state:
(b) An unincorporated business, for profit or nonprofit
organization, including a general or limited partnership or
limited liability partnership;
(c) A limited liability company;
(d) A for profit corporation;
(e) An unincorporated nonprofit association.
(S) "Public benefit entity" means any entity 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 entity, 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," 100 Stat. 2085,
26 U.S.C. 1, as amended. "Public benefit entity" does not include
an entity that is organized by one or more municipal corporations
to further a public purpose that is not a charitable purpose.
(T) "Unincorporated nonprofit association" has the same
meaning as in section 1745.05 of the Revised Code.
Sec. 1702.05. (A) Except as provided in this section and in
sections 1702.41 and 1702.45 1702.411 of the Revised Code, the
secretary of state shall not accept for filing in the secretary of
state's office any articles if the corporate name set forth in the
articles is not distinguishable upon the secretary of state's
records from any of the following:
(1) The name of any other corporation, whether a nonprofit
corporation or a business corporation and whether that of a
domestic or of a foreign corporation authorized to do business in
this state;
(2) The name of any limited liability company registered in
the office of the secretary of state pursuant to Chapter 1705. of
the Revised Code, whether domestic or foreign;
(3) The name of any limited liability partnership registered
in the office of the secretary of state pursuant to Chapter 1775.
or 1776. of the Revised Code, whether domestic or foreign;
(4) The name of any limited partnership registered in the
office of the secretary of state pursuant to Chapter 1782. of the
Revised Code, whether domestic or foreign;
(5) Any trade name, the exclusive right to which is at the
time in question registered in the office of the secretary of
state pursuant to Chapter 1329. of the Revised Code.
(B) The secretary of state shall determine for purposes of
this section whether a name is "distinguishable" from another name
upon the secretary of state's records. Without excluding other
names that may not constitute distinguishable names in this state,
a name is not considered distinguishable from another name for
purposes of this section solely because it differs from the other
name in only one or more of the following manners:
(1) The use of the word "corporation," "company,"
"incorporated," "limited," or any abbreviation of any of those
words;
(2) The use of any article, conjunction, contraction,
abbreviation, or punctuation;
(3) The use of a different tense or number of the same word.
(C) A corporation may apply to the secretary of state for
authorization to use a name that is not distinguishable upon the
secretary of state's records from the name of any other
corporation, any limited liability company, limited liability
partnership, or limited partnership, or from a registered trade
name, if there also is filed in the office of the secretary of
state, on a form prescribed by the secretary of state, the consent
of the other entity, or, in the case of a registered trade name,
the person in whose name is registered the exclusive right to use
the name, which consent is evidenced in a writing signed by any
authorized officer or authorized representative of the other
entity or person.
(D) In case of judicial sale or judicial transfer, by sale or
transfer of good will or otherwise, of the right to use the name
of a nonprofit corporation or business corporation, whether that
of a domestic corporation or of a foreign corporation authorized
to exercise its corporate privileges in this state or to do
business in this state, the secretary of state, at the instance of
the purchaser or transferee of such right, shall accept for filing
articles of a corporation with a name the same as or similar to
the name of such other corporation, if there also is filed in the
office of the secretary of state a certified copy of the decree or
order of court confirming or otherwise evidencing the purchase or
transfer.
(E) Any person who wishes to reserve a name for a proposed
new corporation, or any corporation intending to change its name,
may submit to the secretary of state a written application, on a
form prescribed by the secretary of state, for the exclusive right
to use a specified name as the name of a corporation. If the
secretary of state finds that, under this section, the specified
name is available for such use, the secretary of state shall file
such application, and, from the date of such filing, such
applicant shall have the exclusive right for one hundred eighty
days to use the specified name as the name of a corporation,
counting the date of such filing as the first of the one hundred
eighty days. The right so obtained may be transferred by the
applicant or other holder of the right by the filing in the office
of the secretary of state of a written transfer, on a form
prescribed by the secretary of state, stating the name and address
of the transferee.
Sec. 1702.41. (A)(1) Any two or more corporations may merge
into a single corporation which shall be one of the constituent
corporations, or may consolidate into a single corporation which
shall be a new corporation to be formed by the consolidation
Pursuant to an agreement of merger, a domestic corporation and one
or more additional domestic or foreign entities may be merged into
a surviving domestic corporation. Pursuant to an agreement of
consolidation, one or more domestic or foreign entities may be
consolidated into a new domestic corporation. 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.
(2) To effect such a merger or consolidation under this
section, the directors of each constituent domestic corporation
shall approve an agreement of merger or consolidation to be signed
by the chairperson of the board of directors, the president, or a
vice-president and by the secretary or an assistant secretary,
which. The agreement of merger or consolidation shall be approved
or otherwise authorized by or on behalf of each other constituent
entity in accordance with the laws under which it exists.
(3) The agreement 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) That the named constituent corporations entities have
agreed to merge into a specified constituent corporation, herein
designated in this section as the surviving corporation, or that
the named constituent
corporations entities have agreed to
consolidate into a new corporation to be formed by the
consolidation, herein designated in this section as the new
corporation;
(b)(c) All statements and matters required to be set forth in
an agreement of merger or consolidation by the laws under which
each constituent entity exists;
(d) The name of the surviving or new corporation, which may
be the same as or similar to that of any constituent corporation;
(c)(e) The place in this state where the principal office of
the surviving or new corporation is to be located;
(d)(f) The names and addresses of the first directors and
officers of the surviving or new corporation, and, if desired,
their term or terms of office;
(e)(g) The name and address of the statutory agent upon whom
any process, notice, or demand against any constituent
corporation
entity or the surviving or new corporation may be served;
(f)(h) The terms of the merger or consolidation and the mode
of carrying the same those terms into effect;
(g)(i) The regulations of the surviving or new corporation or
a provision to the effect that the regulations of one of the a
specified constituent corporations corporation shall be the
regulations of the surviving or new corporation or to the effect
that the voting members or the directors of the surviving or new
corporation may adopt regulations, or any combination thereof of
them.
(3)(4) The agreement of merger or consolidation may also set
forth any of the following:
(a) The specification of a date, which may be the date of the
filing of the agreement or a date subsequent thereto to that date
of filing, upon which the merger or consolidation shall become
effective;
(b) A provision conferring upon the directors of one or more
of the constituent corporations or the comparable representatives
of any other constituent entity the power to abandon the merger or
consolidation prior to the filing of the agreement;
(c) Any additional provision permitted to be included in the
articles of a newly formed corporation;
(d) Any additional provision deemed considered necessary or
desirable with respect to the proposed merger or consolidation.
(B)(1) Without the prior approval of A merger or
consolidation in which a domestic public benefit corporation is
one of the constituent entities shall be approved by the court of
common pleas of the county in this state in which the principal
office of the public benefit 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, a public benefit
corporation may merge or consolidate only with any of the
following. No approval by the court under division (B)(1) of this
section is required if either of the following applies:
(a) A domestic public benefit corporation; is the surviving
entity in the case of a merger and continues to be a public
benefit corporation or is the new corporation in the case of a
consolidation and continues to be a public benefit corporation.
(b) A foreign corporation that would qualify under the
Revised Code as a public benefit corporation;
(c) A mutual benefit corporation or a business corporation,
provided that the domestic public benefit corporation is not the
surviving
corporation entity in the case of a merger and continues
to be a public benefit corporation or that a public benefit
corporation or is not the new corporation in the case of a
consolidation;
(d) A business corporation or mutual benefit corporation,
provided that, and all of the following apply:
(i) On or prior to the effective date of the merger or
consolidation, assets with a value equal to the greater of the
fair market value of the net tangible and intangible assets,
including goodwill, of the domestic public benefit corporation or
the fair market value of the domestic public benefit corporation
if it is to be operated as a business concern, are transferred or
conveyed to one or more persons that would have received its
assets under section 1702.49 of the Revised Code had it
voluntarily dissolved.
(ii) It The domestic public benefit corporation returns,
transfers, or conveys any assets held by it upon a condition
requiring return, transfer, or conveyance, which condition occurs
by reason of the merger or consolidation, in accordance with that
condition.
(iii) The merger or consolidation is approved by a majority
of directors of the domestic public benefit corporation who will
not receive any financial or other benefit, directly or
indirectly, as a result of the merger or consolidation or by
agreement, and who are not and will not as a result of the merger
or consolidation become members, partners, or other owners,
however denominated, of, shareholders in, or directors, officers,
managers, employees, agents, or other representatives of, or
consultants of to, the surviving or new business corporation or
mutual benefit corporation entity.
(2) At least twenty days before consummation of any merger or
consolidation of a domestic public benefit corporation pursuant to
division (B)(1)(d)(b) of this section, written notice, including a
copy of the proposed plan of merger or consolidation, shall be
delivered to the attorney general's charitable law section. The
attorney general's charitable law section may review a proposed
merger or consolidation of a domestic public benefit corporation
under division (B)(1)(d)(b) of this section. 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
merger or consolidation under division (B)(1)(d)(b) of this
section. The attorney general may retain, at the expense of the
domestic 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 merger or consolidation under division (B)(1)(d)(b) of
this section. The attorney general may extend the date of any
merger or consolidation of a domestic public benefit corporation
under division (B)(1)(d)(b) of this section for a period not to
exceed sixty days and shall provide notice of that extension to
the domestic public benefit corporation. The notice shall set
forth the reasons necessitating the extension.
(3) Without No member, other than a member that is a public
benefit entity, or director of a domestic public benefit
corporation in that person's capacity as a member or director may
receive or keep anything as a result of a merger or consolidation
other than membership or directorship in the surviving or new
public benefit corporation, without the prior written consent of
the attorney general or of the court of common pleas of the county
in this state in which the principal office of the domestic public
benefit corporation is located, in a proceeding in 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, no member or director of a public benefit
corporation in that person's capacity as a member or director may
receive or keep anything as a result of a merger of consolidation
other than membership or directorship in the surviving or new
public benefit corporation. The court shall approve the
transaction if it is in the public interest.
(4) The attorney general may institute a civil action to
enforce the requirements of divisions (B)(1), (2), and (3) of this
section in the court of common pleas of the county in this state
in which the principal office of the domestic public benefit
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.
(C) A corporation may be the surviving or new entity in a
merger or consolidation with one or more business corporations, or
a corporation may merge or consolidate into one or more business
corporations with a business corporation, a mutual benefit
corporation, or a foreign corporation as the surviving or new
entity, provided that the corporation complies with the provisions
of this section and sections 1702.42 and 1702.43 of the Revised
Code, as applicable to the corporation, and that the business
corporation complies with the provisions of section 1701.781 or
1701.791 of the Revised Code, as applicable to the business
corporation.
Sec. 1702.411. (A)(1) Pursuant to an agreement of merger
between the constituent entities as provided in this section, a
domestic corporation and, if so provided, one or more additional
domestic or foreign entities, may be merged into a surviving
entity other than a domestic corporation. Pursuant to an agreement
of consolidation, a domestic corporation together with one or more
additional domestic or foreign entities may be consolidated into a
new entity other than a domestic corporation, to be formed by that
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. The name of the surviving or new entity
may be the same as or similar to that of any constituent entity.
(2) To effect a merger or consolidation under this section,
the directors of each constituent domestic corporation shall
approve an agreement of merger or consolidation to be signed by
the chairperson of the board of directors, the president, or a
vice-president and by the secretary or an assistant secretary. The
agreement of merger or consolidation shall be approved or
otherwise authorized by or on behalf of each other constituent
entity in accordance with the laws under which it exists.
(3) The agreement 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) In the case of a merger, that one or more specified
constituent entities will be merged into a specified surviving
foreign entity or surviving domestic entity other than a domestic
corporation or, in the case of a consolidation, that the
constituent entities will be consolidated into a new foreign
entity or domestic entity other than a domestic corporation.
(c) The terms of the merger or consolidation and the mode of
carrying those terms into effect;
(d) If the surviving or new entity is a foreign corporation,
all additional statements and matters, other than the name and
address of the statutory agent, that would be required by section
1702.41 of the Revised Code if the surviving or new corporation
were a domestic corporation;
(e) 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 in that state;
(f) All statements and matters required to be set forth in 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;
(g) The consent of the surviving or the new 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 entity any obligation of any domestic
constituent corporation;
(h) 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;
(i) 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;
(j) 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;
(k) If the surviving or new entity is a foreign
unincorporated association that desires to transact business in
this state as a foreign unincorporated association, a statement to
that effect, together with all of the information required under
section 1745.461 of the Revised Code when a foreign unincorporated
association registers to transact business in this state.
(4) The 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.
(B)(1) A merger or consolidation in which a domestic public
benefit corporation is one of the constituent entities shall be
approved by the court of common pleas of the county in this state
in which the principal office of the domestic public benefit
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. No approval by the court under division
(B)(1) of this section is required if either of the following
applies:
(a) A public benefit entity is the surviving entity in the
case of a merger and continues to be a public benefit entity or is
the new entity in the case of a consolidation and continues to be
a public benefit entity.
(b) A public benefit entity is not the surviving entity in
the case of a merger or is not the new entity in the case of a
consolidation, and all of the following apply:
(i) On or prior to the effective date of the merger or
consolidation, assets with a value equal to the greater of the
fair market value of the net tangible and intangible assets,
including goodwill, of the domestic public benefit corporation or
the fair market value of the domestic public benefit corporation
if it is to be operated as a business concern are transferred or
conveyed to one or more persons that would have received its
assets under section 1702.49 of the Revised Code had it
voluntarily dissolved.
(ii) The domestic public benefit corporation returns,
transfers, or conveys any assets held by it upon a condition
requiring return, transfer, or conveyance, which condition occurs
by reason of the merger or consolidation, in accordance with that
condition.
(iii) The merger or consolidation is approved by a majority
of directors of the domestic public benefit corporation who will
not receive any financial or other benefit, directly or
indirectly, as a result of the merger or consolidation or by
agreement, and who are not and will not as a result of the merger
or consolidation become members, partners, or other owners,
however denominated, of, shareholders in, directors, officers,
managers, employees, agents, or other representatives of, or
consultants to, the surviving or new entity.
(2) At least twenty days before consummation of any merger or
consolidation of a domestic public benefit corporation pursuant to
division (B)(1)(b) of this section, written notice, including a
copy of the proposed plan of merger or consolidation, shall be
delivered to the attorney general's charitable law section. The
attorney general's charitable law section may review a proposed
merger or consolidation of a domestic public benefit corporation
under division (B)(1)(b) of this section. 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
merger or consolidation under division (B)(1)(b) of this section.
The attorney general may retain at the expense of the domestic
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
merger or consolidation under division (B)(1)(b) of this section.
The attorney general may extend the date of any merger or
consolidation of a domestic public benefit corporation under
division (B)(1)(b) of this section for a period not to exceed
sixty days and shall provide notice of that extension to the
domestic public benefit corporation. The notice shall set forth
the reasons necessitating the extension.
(3) No member, other than a member that is a public benefit
entity, or director of a domestic public benefit corporation in
that person's capacity as a member or director may receive or keep
anything as a result of a merger or consolidation other than
membership or directorship in the surviving or new public benefit
entity without the prior written consent of the attorney general
or of the court of common pleas of the county in this state in
which the principal office of the domestic public benefit
corporation is located that is obtained in a proceeding in 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. The court shall approve the
transaction if it is in the public interest.
(4) The attorney general may institute a civil action to
enforce the requirements of divisions (B)(1), (2), and (3) of this
section in the court of common pleas of the county in this state
in which the principal office of the domestic public benefit
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.
Sec. 1702.42. (A) The directors of each constituent domestic
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 that corporation held for that purpose, and
notice. Notice of the meeting shall be given to all members of the
constituent domestic corporation entitled to vote at the meeting.
The notice shall be accompanied by a copy or summary of the
material terms of the agreement.
(B)(1) At each 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 to the agreement proposed at each such
meeting) must, shall receive the affirmative vote of a majority of
the voting members of each constituent domestic corporation
present at that meeting in person, by the use of authorized
communications equipment, by mail, or, if permitted, by proxy if a
quorum is present, or, if the articles or the regulations of that
corporation provide or permit, the affirmative vote of a greater
or lesser proportion or number of the voting members, and the
affirmative vote of the voting members of any particular class
that is required by the articles or the regulations of such that
corporation. If the agreement would effect or 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 effected or authorized only by
or pursuant to a specified vote of voting the members, the
agreement (, including any amendments or additions to the
agreement proposed at each such meeting) in order to, shall be
adopted must receive by the same affirmative vote so specified as
would be required for that action.
(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 domestic corporations or the comparable
representatives of any other constituent entity, if the power of
abandonment is conferred upon 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 or action as is required to adopt that agreement.
Sec. 1702.43. (A) Upon adoption by each constituent
corporation entity of an agreement of merger or consolidation
pursuant to section
1702.42 1702.41 or 1702.45 1702.411 of the
Revised Code, a certificate of merger or consolidation, signed by
any authorized representative of each constituent corporation
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.
(1) The certificate of merger or consolidation shall set
forth all of the following:
(a) The name of each constituent entity and the state under
whose laws 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 member
or other person, 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 each representative authorized to sign holds 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 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, the articles of incorporation of the new domestic
corporation shall be filed with the certificate of consolidation
shall be accompanied by a copy of the articles of incorporation of
the new domestic corporation.
(3) In the case of a merger into a domestic corporation, any
amendments to the articles of incorporation of the surviving
domestic corporation shall be filed with the certificate of merger
shall be accompanied by a copy of any amendments to the articles
of incorporation of the surviving domestic corporation. Filing
requirements with respect to mergers and consolidations in which a
domestic corporation is not the surviving or resulting entity
shall be subject to division (B) of section 1702.43 of the Revised
Code.
(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, limited partnership, or
unincorporated association, the certificate of merger or
consolidation shall
contain a statement to that effect and a
statement with respect to the appointment of the statutory agent
and with respect to the consent to 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 certificate
authorizing it to transact business in this state be accompanied
by the information required by division (A)(3)(h), (i), (j), or
(k) of section 1702.411 of the Revised Code, whichever is
applicable.
(5) If a domestic or foreign 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
domestic or foreign 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 (G) of section 1702.47 of the
Revised Code, with respect to each domestic 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.
(B) 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.
(C) Upon the filing of a certificate of merger or
consolidation and other filings as described in division (B) of
this section, or at such a later date as that the certificate of
merger or consolidation specifies, the merger or consolidation
shall become effective.
(D) 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, a certificate setting forth the name and form of
each constituent entity and the state under whose laws each
constituent entity existed prior to the merger or consolidation,
the name and form of the surviving or new entity and the state
under whose laws 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 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. 1702.44. (A) When such a merger or consolidation
becomes effective, all of the following apply:
(A)(1) The separate existence of all the each constituent
corporations, except entity other than the surviving or new
corporation, 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 corporation entity, the officers, general partners, or other
authorized representatives of the respective constituent
corporation entities shall execute, acknowledge, and deliver such
those instruments, and do such those acts, and for such. For these
purposes, the existence of the constituent corporations entities
and the authority of their respective officers and, directors
shall be deemed, general partners, or other authorized
representatives is continued notwithstanding the merger or
consolidation;
(B) The constituent corporations shall become a single
corporation which, in the case of a merger, shall be that one of
the constituent corporations designated in the agreement of merger
as the surviving corporation and, in the case of a consolidation,
shall be the new corporation provided for in the agreement of
consolidation;
(C) The surviving or new corporation shall have all the
rights, privileges, immunities, powers, franchises, and authority
and shall be subject to all the obligations of a corporation
formed under this chapter;
(2) In the case of a merger in which the surviving entity is
a domestic corporation, the articles of the domestic surviving
corporation in effect immediately prior to the time the merger
becomes effective shall continue as its articles after the merger
except as otherwise provided in the agreement of merger. In the
case of a consolidation, the new entity exists when the
consolidation becomes effective, and, if it is a domestic
corporation, the articles contained in or provided for in the
agreement of consolidation shall be its original articles.
(3) The surviving or new corporation shall thereupon and
thereafter possess entity possesses all assets and property of
every description and every interest in the assets and property,
wherever located, the rights, privileges, immunities, powers,
franchises, and authority, as well of a public as well as of a
private nature, of each of the constituent corporations; and all
property of every description, and every interest therein entity,
and all obligations, of or belonging to or due to each of the
constituent
corporations, shall thereafter be taken and deemed to
be transferred to and entity, all of which are vested in the
surviving or new corporation entity without further act or deed;
and any. Any right or interest in respect to any past or future
devise, bequest, conditional gift, or trust, property, or fund
restricted to particular uses, when vested in or claimed by such
the surviving or new corporation entity as a result of such the
merger or consolidation, shall belong to it as a continuation
without interruption of the existence and identity of the
constituent organization entity originally named as taker or
beneficiary; and. The surviving or new entity possesses title to
any real estate, or any interest
therein, in the real estate
vested in any of the constituent corporations entities. Title to
any real estate or any interest in the real estate vested in any
constituent entity shall not revert or in any way be impaired by
reason of such the merger or consolidation;.
(E) To the extent permitted by the laws of any other state in
which any constituent corporation has property, the provisions of
division (D) of this section apply in such state;
(F)(4) The surviving or new corporation shall thenceforth be
entity is liable for all of the obligations of each of the
constituent
corporations; and any entity. Any claim existing or
any action or proceeding pending by or against any of the
constituent corporations entity may be prosecuted to judgment,
with right of appeal as in other cases, as if such the merger or
consolidation had not taken place, or the surviving or new
corporation entity may be substituted in its place;.
(G)(5) All of the rights of creditors of each constituent
corporation shall be entity are preserved unimpaired, and all
liens upon the property of any of the constituent corporations
shall be entity are preserved unimpaired, limited in lien to on
only the property affected by
such those liens immediately prior
to the effective date of the merger or consolidation;
(H) The agreement shall operate as amended articles in the
case of a merger and as original articles in the case of
consolidation. If a general partner of a constituent partnership
is not a general partner of the surviving entity or the new entity
resulting from the merger or consolidation, the former general
partner has 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 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 surviving entity or the new entity
resulting from the merger or consolidation, division (B) of
section 1782.434 of the Revised Code applies.
(C) In the case of a merger of a domestic constituent
corporation into a foreign surviving corporation, limited
liability company, limited partnership, or unincorporated
association that is not licensed or registered to transact
business in this state or in the case of a consolidation of a
domestic constituent corporation into a new foreign corporation,
limited liability company, limited partnership, or unincorporated
association, 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 (A)(4) of section 1702.43 of the Revised Code, the
surviving or new entity shall be considered on the effective date
of the merger or consolidation to have complied with the
requirements for procuring a license or for registering to
transact business in this state as a foreign corporation, limited
liability company, limited partnership, or unincorporated
association, as the case may be. In that case, a copy of the
certificate of merger or consolidation certified by the secretary
of state constitutes the license certificate prescribed by the
laws of this state for a foreign corporation transacting business
in this state or the application for registration prescribed for a
foreign limited partnership, limited liability company, or
unincorporated association.
(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 that merger
or consolidation or be forever barred.
(E) As used in this section, "corporation" or "entity"
applies to both domestic and foreign corporations or entities if
the context so permits. In the case of a foreign constituent
entity or a foreign new entity, 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. 1702.46. (A) Upon the filing of the certificate of
merger or consolidation in compliance with the laws of each state
under the laws of which any constituent corporation entity exists,
or at
such any later date as that the certificate specifies, the
merger or consolidation shall become effective.
(B) The effect of such merger or consolidation, if the
surviving or new corporation is to be a domestic corporation,
shall be the same as in the case of the merger or consolidation of
domestic corporations. If the surviving or new corporation is to
be a foreign corporation:
(1) The surviving or new corporation shall thenceforth be
liable for all the obligations of each of the constituent
corporations;
(2) All the rights of creditors of each constituent
corporation shall be preserved unimpaired, and all liens upon the
property of any of the constituent corporations shall be preserved
unimpaired, limited in lien to the property affected by such liens
immediately prior to the effective date of the merger or
consolidation;
(3) The effect of such merger or consolidation shall, in all
other respects, be the same as in the case of the merger or
consolidation of domestic corporations except insofar as the laws
of such other state otherwise provide.
(C) If the surviving or new corporation is to be a foreign
corporation and if the certificate states that the surviving or
new corporation desires to exercise its corporate privileges in
this state as a foreign corporation in a continual course of
transactions, the surviving or new corporation shall, when the
merger or consolidation becomes effective, be deemed to have
complied with the requirements for procuring a certificate
authorizing it to do so, and a copy of the certificate of merger
or consolidation, certified by the secretary of state of this
state, shall be considered and accepted as the license certificate
prescribed by the laws of this state for a foreign corporation
exercising its corporate privileges in this state in a continual
course of transactions.
Sec. 1702.462. (A) Upon the adoption of a declaration of
conversion pursuant to section 1702.461 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 under division (B) of this section.
(B)(1) The certificate of conversion shall set forth all of
the following:
(a) The name and 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 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 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 divisions
(B)(1)(c)(ii) and (iii) of section 1702.461 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 (G) of
section 1702.47 of the Revised Code, with respect to a converting
domestic corporation, and 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 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 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. 1745.05. As used in this chapter, unless the context
otherwise requires:
(A) "Authorized communications equipment" means any
communications equipment that 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 manager involved and, with respect to meetings, allows
all persons participating in the meeting to contemporaneously
communicate with each other.
(B)(1) "Entity" means any of the following:
(a) An unincorporated nonprofit association existing under
the laws of this state or any other state;
(b) A nonprofit corporation existing under the laws of this
state or any other state;
(c) A for profit corporation existing under the laws of this
state or any other state;
(d) Any of the following organizations existing under the
laws of this state, the United States, or any other state:
(i) An unincorporated business or for profit organization,
including a general or limited partnership;
(ii) A limited liability company;
(iii) Any other legal or commercial entity the formation and
operation of which is governed by statute.
(2) "Entity" includes a domestic or foreign entity.
(C) "Established practices" means the practices used by an
unincorporated nonprofit association without material change
during the most recent five years of its existence or, if it has
existed for less than five years, during its entire existence.
(D) "Governing principles" means all agreements, whether
oral, in a record, or implied from its established practices, or
any combination of them, that govern the purpose or operation of
an unincorporated nonprofit association and the rights and
obligations of its members and managers. "Governing principles"
includes any amendment or restatement of the agreements
constituting the governing principles.
(E) "Internal Revenue Code" means the "Internal Revenue Code
of 1986," 100 Stat. 2085, 26 U.S.C. 1, as amended.
(F) "Manager" means a person, irrespective of the person's
designation as director or other designation, that is responsible,
alone or in concert with others, for the management of an
unincorporated nonprofit association as stated in division (E) of
section 1745.32 of the Revised Code.
(G) "Member" means a person that, under the governing
principles of an unincorporated nonprofit association, is entitled
to participate in the selection of persons authorized to manage
the affairs of the association or in the adoption of the policies
and activities of the association.
(H) "Mutual benefit association" means any unincorporated
nonprofit association organized under this chapter other than a
public benefit association.
(I) "Person" means an individual, corporation, business
trust, statutory entity trust, estate, trust, partnership, limited
liability company, cooperative, association, joint venture, public
corporation, government or governmental subdivision, agency, or
instrumentality, two or more persons having a joint or common
interest, or any other legal or commercial entity.
(J) "Public benefit association" means an unincorporated
nonprofit association that is exempt from federal income taxation
under section 501(c)(3) of the Internal Revenue Code or is
organized for a public or charitable purpose and that upon
dissolution must distribute its assets to a public benefit
association, 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.
(K) "Public benefit entity" means an entity that is
recognized as exempt from federal income taxation under section
501(c)(3) of the Internal Revenue Code or is organized for a
public or charitable purpose and that upon dissolution must
distribute its assets to a public benefit entity, 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. "Public
benefit entity" does not include an entity that is organized by
one or more municipal corporations to further a public purpose
that is not a charitable purpose.
(L) "Record" means information that is inscribed on a
tangible medium or that is stored in an electronic or other medium
and is retrievable in perceivable form.
(M) "Unincorporated nonprofit association" means an
unincorporated organization, consisting of two or more members
joined by mutual consent pursuant to an agreement, written, oral,
or inferred from conduct, for one or more common, nonprofit
purposes. "Unincorporated nonprofit association" does not include
any of the following:
(2) A marriage, domestic partnership, common law
relationship, or other domestic living arrangement;
(3) An organization that is formed under any other statute
that governs the organization and operation of unincorporated
associations;
(4) A joint tenancy, tenancy in common, or tenancy by the
entireties notwithstanding that the co-owners share use of the
property for a nonprofit purpose;
(5) A religious organization that operates according to the
rules, regulations, canons, discipline, or customs established by
the organization, including any ministry, apostolate, committee,
or group within that organization.
(N)(1) Subject to division (N)(2) of this section,
"volunteer" means a manager, officer, member, or agent of an
unincorporated nonprofit association, or another person acting for
the association, who satisfies both of the following:
(a) Performs services for or on behalf of, and under the
authority or auspices of, that unincorporated nonprofit
association;
(b) Does not receive compensation, either directly or
indirectly, for performing those services.
(2) For purposes of division (N)(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 an
unincorporated nonprofit association 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 divisions (A) and (G) of
section 1745.43 of the Revised Code;
Sec. 1745.06. (A) Principles of law and equity supplement
this chapter unless displaced by a particular provision of this
chapter.
(B) A statute in this state governing a particular type of
unincorporated nonprofit association prevails over an inconsistent
provision in this chapter to the extent of the inconsistency.
(C) This chapter supplements all regulatory laws that are
applicable to nonprofit organizations operating in this state. In
the event of a conflict, those regulatory laws prevail.
Sec. 1745.07. (A) Except as otherwise provided in division
(B) of this section, the law of this state governs all
unincorporated nonprofit associations formed or operating in this
state.
(B) Unless the governing principles of an unincorporated
nonprofit association specify a different jurisdiction, the law of
the jurisdiction in which the association has its main place of
activities governs the internal affairs of the association.
Sec. 1745.08. All of the following apply to an
unincorporated nonprofit association:
(A) It is a legal entity distinct from its members and
managers.
(B) It has perpetual duration unless its governing principles
specify otherwise.
(C) It has the same powers as an individual to do all things
necessary or convenient to carry on its activities.
(D) It may engage in profit-making activities, but any
profits from those activities shall be used or set aside for the
association's nonprofit purposes.
Sec. 1745.09. An unincorporated nonprofit association may
acquire, hold, encumber, or transfer in its name an estate or
interest in real or personal property. An unincorporated nonprofit
association may be a legatee, a devisee, or a beneficiary of a
trust or contract. All property acquired by an unincorporated
nonprofit association by purchase, gift, devise, bequest, or
otherwise shall be the absolute property of the association,
unless it is otherwise specified in writing at the time of
acquiring that property.
Sec. 1745.10. A debt, obligation, or other liability of an
unincorporated nonprofit association, whether arising in contract,
tort, or otherwise, is solely the debt, obligation, or other
liability of the association and does not become the debt,
obligation, or other liability of a member or manager solely
because the member acts as a member or the manager acts as a
manager. A person's status as a member or a manager of an
unincorporated nonprofit association does not prevent or restrict
any law other than this chapter from imposing liability on the
person or association because of the person's conduct.
Sec. 1745.11. An unincorporated nonprofit association has
the capacity to sue and be sued in its own name. A member or a
manager of an unincorporated nonprofit association may assert a
claim that the member or manager has against the association. An
unincorporated nonprofit association may assert a claim that it
has against a member or a manager of the association.
Sec. 1745.12. All assets, property, funds, and rights or
interests, at law or in equity, of any unincorporated nonprofit
association shall be subject to judgment, execution, and other
process. A money judgment against an unincorporated nonprofit
association shall be enforced only against the association as an
entity and shall not be enforceable against the property of any
manager or member of the association.
Sec. 1745.13. (A) An unincorporated nonprofit association
may file in the office of the secretary of state a statement
appointing an agent authorized to receive service of process. The
agent may be a natural person who is a resident of this state or
may be a for profit domestic corporation or a for profit foreign
corporation holding a license as such under the laws of this state
and that has a business address in this state. The statement
appointing an agent shall set forth the name of the unincorporated
nonprofit association and the name and address in this state of
the agent, including the street and number or other particular
description, and shall otherwise be in the form that the secretary
of state prescribes. The secretary of state shall keep a record of
the names of all unincorporated nonprofit associations that have
filed a statement appointing an agent authorized to receive
service of process and the names and addresses of their respective
agents.
(B) A statement appointing an agent authorized to receive
service of process under division (A) of this section shall be
signed by a person authorized to manage the affairs of the
unincorporated nonprofit association. The statement also shall be
signed by the person appointed as agent who accepts the
appointment. The appointed agent may resign by filing with the
secretary of state, on a form prescribed by the secretary of
state, a written notice to that effect that is signed by the agent
and by sending a copy of the notice to the association at the
current or last known address of its principal office on or prior
to the date that the notice is filed with the secretary of state.
Upon the expiration of thirty days after the filing, the authority
of the agent shall terminate.
(C) An unincorporated nonprofit association may revoke the
appointment of an agent by filing with the secretary of state on a
form prescribed by the secretary of state a written appointment of
another agent and a statement that the appointment of the former
agent is revoked.
Sec. 1745.14. In an action or proceeding against an
unincorporated nonprofit association, a summons and complaint or
other process may be served on an agent authorized by appointment
to receive service of process or a manager of the association or
in any other manner authorized by the law of this state.
Sec. 1745.15. An action or proceeding against an
unincorporated nonprofit association does not abate merely because
of a change in its members or managers.
Sec. 1745.16. Unless otherwise provided by law, the venue of
an action against an unincorporated nonprofit association brought
in this state shall be determined under the statutes applicable to
an action brought in this state against a nonprofit corporation.
Sec. 1745.17. A member of an unincorporated nonprofit
association is not an agent of the association solely by reason of
being a member.
Sec. 1745.18. Except as otherwise provided in its governing
principles, an unincorporated nonprofit association shall have the
approval of its members to do any of the following:
(A) Admit, suspend, dismiss, or expel a member;
(B) Select or dismiss a manager;
(C) Adopt, amend, or repeal its governing principles;
(D) Sell, lease, exchange, or otherwise dispose of all or
substantially all of the association's property, with or without
the association's goodwill, outside the ordinary course of its
activities;
(E) Dissolve under section 1745.50 of the Revised Code or
merge or consolidate under section 1745.46 or 1745.461 of the
Revised Code;
(F) Undertake any other act outside the ordinary course of
the association's activities if the association has annual gross
receipts of less than twenty-five thousand dollars;
(G) Determine the purposes of the association and, if the
association has annual gross receipts of less than twenty-five
thousand dollars, determine the policies of the association;
(H) Do any other act or exercise any right that requires
action by the members under the governing principles.
Sec. 1745.19. (A) Unless another form of notice is required
by the governing principles of an unincorporated nonprofit
association or by applicable law, any notice required by this
chapter shall be in writing and shall be delivered personally or
sent by telegram, 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
governing principles of an unincorporated nonprofit association or
a resolution of its members or managers, the day on which the
notice is given shall be excluded, and the day when the act for
which the notice is given is to be done shall be included, unless
the instrument calling for the notice provides otherwise. If
notice is given by personal delivery or transmitted by telegram or
by the use of authorized communications equipment, the notice
shall be considered to have been given when it is delivered or
transmitted. If notice is sent by United States mail, express
mail, or courier service, the notice shall be considered to have
been given when it is 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 unincorporated
nonprofit association'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 association's current list of members, if
addressed or delivered to one of those members at the address
appearing on the association's current list of members.
Sec. 1745.20. (A) An unincorporated nonprofit association
shall maintain a record of its members containing the name and
address of each member and, if members are classified, the class
to which the member belongs.
(B) A member of an unincorporated nonprofit association may
be suspended, dismissed, or expelled as provided in division (A)
of section 1745.29 of the Revised Code or may resign as provided
in division (A) of section 1745.30 of the Revised Code. Upon the
suspension or termination of membership, that fact and the date of
the suspension or termination shall be recorded in the
association's membership records.
(C) Unless the governing principles provide otherwise, all
rights and privileges of a member in an unincorporated nonprofit
association and its property shall cease on termination of
membership.
(D) Whenever the number of members of an unincorporated
nonprofit association that, under the law or its governing
principles, must have a specified number of members is reduced
below the specified number, the unincorporated nonprofit
association shall not be required because of that reduction to
cease carrying on its activities, but the continuing members may
fill all vacancies.
(E) Unless otherwise provided in the governing principles of
an unincorporated nonprofit association, all members have the same
membership rights and privileges.
(F) All members of an unincorporated nonprofit association
shall exercise their membership rights and privileges consistent
with the obligation of good faith and fair dealing.
Sec. 1745.21. (A) Unless the governing principles provide
otherwise, meetings of voting members of an unincorporated
nonprofit association may be called by any of the following:
(1) 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 manager or managers by action at a meeting, or a
majority of the managers acting without a meeting;
(3) The lesser of ten per cent of the voting members or
twenty-five of the voting members, unless the governing principles
specify for that purpose a smaller or larger proportion or number,
but not in excess of fifty per cent of the voting members;
(4) Any other officers or persons that the governing
principles authorize to call those meetings.
(B) If so provided in the governing principles, meetings of
voting members may be held either within or outside this state or
solely by means of authorized communications equipment.
(C) Unless the governing principles provide otherwise, 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 considered 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 members or managers may adopt procedures and guidelines for
the use of authorized communications equipment in connection with
a meeting of voting members to permit the unincorporated nonprofit
association 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. 1745.22. Unless the governing principles provide for
notice of meetings otherwise than as provided in this section,
written notice stating the place, if any, and the time of a
meeting, 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 1745.19 of the Revised
Code, to each member entitled to notice of the meeting not less
than ten and not more than sixty days before the date of the
meeting. The notice of the meeting shall be given by or at the
direction of the president, the secretary, or any other person
required or permitted by the governing principles to give notice
or by the officers or persons calling the meeting. If mailed or
sent by overnight delivery service, that notice shall be addressed
to the member at the member's address as it appears on the records
of the unincorporated nonprofit association. 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 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 the meeting.
Sec. 1745.23. (A) Notice of the place, if any, the time, and
the purpose or purposes of any meeting of voting members or
managers, as the case may be, whether required by law or the
governing principles may be waived in writing, either before or
after the holding of that meeting, by any member or any manager.
That writing shall be filed with or entered upon the records of
the meeting. A transmission by authorized communications equipment
that contains a waiver is a writing for purposes of this division.
(B) If a member or manager 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 considered to be a waiver by the member or manager of notice of
the meeting.
(C) Unless the governing principles provide otherwise, a
member shall be considered in attendance at a meeting described in
division (A) of this section if the member is present in person,
by the use of authorized communications equipment, by mail, or, if
permitted, by proxy. Unless the governing principles provide
otherwise, a manager shall be considered in attendance at a
meeting described in division (A) of this section if the manager
is present in person or by the use of authorized communications
equipment.
Sec. 1745.24. Unless the governing principles provide
otherwise, the following apply:
(A) The voting members present in person, by the use of
authorized communications equipment, by mail, or, if permitted, by
proxy at any meeting of voting members shall constitute a quorum
for the meeting.
(B) 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) 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 or by the governing
principles 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.
Sec. 1745.25. (A) Except as otherwise provided in the
governing principles, 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.
(B) Unless the governing principles provide otherwise, voting
at elections and votes on other matters may be conducted by mail
or by the use of authorized communications equipment.
(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 members or managers may adopt procedures and
guidelines for the use of authorized communications equipment to
permit the unincorporated nonprofit association to verify that a
person is a voting member and to maintain a record of any vote.
(D) Unless the governing principles provide otherwise, no
member who is a natural person shall vote or act by proxy.
Sec. 1745.26. Whenever with respect to the authorization or
taking of any action by the members or the managers the governing
principles require the vote, consent, waiver, or release of a
greater proportion or number of the members or the managers than
that otherwise required by law with respect to that authorization
or taking of the action, the provisions of the governing
principles shall control.
Sec. 1745.27. The authorization or taking of any action by
vote, consent, waiver, or release of the members may be rescinded
or revoked by the same vote, consent, waiver, or release as at the
time of rescission or revocation would be required to authorize or
take that action in the first instance, subject to the contract
rights of other persons.
Sec. 1745.28. (A) Unless the governing principles prohibit
the authorization or taking of any action of the members or the
managers without a meeting, any action that may be authorized or
taken at a meeting of the members or the managers, 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 members or all of the managers, as the case
may be, who would be entitled to notice of a meeting for that
purpose, or, in the case of members, any other proportion or
number of voting members, not less than a majority, that the
governing principles permit. The writing or writings described in
this division shall be filed with or entered upon the records of
the unincorporated nonprofit association. Any certificate with
respect to the authorization or taking of any 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 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. 1745.29. (A) A person becomes a member of an
unincorporated nonprofit association and may be suspended,
dismissed, or expelled in accordance with the association's
governing principles. If there are no applicable governing
principles, a person may become a member or be suspended,
dismissed, or expelled from an unincorporated nonprofit
association by a vote of its members. A person may not be admitted
as a member of an unincorporated nonprofit association without the
person's consent.
(B) Unless the governing principles provide otherwise, the
suspension, dismissal, or expulsion of a member of an
unincorporated nonprofit association does not relieve the member
from any unpaid capital contribution, dues, assessments, fees, or
other obligation incurred or commitment made by the member before
the suspension, dismissal, or expulsion.
Sec. 1745.30. (A) A member may resign from membership in an
unincorporated nonprofit association in accordance with the
governing principles. In the absence of applicable governing
principles, a member may resign at any time.
(B) Unless the governing principles provide otherwise,
resignation of a member of an unincorporated nonprofit association
does not relieve the member from any unpaid capital contribution,
dues, assessments, fees, or other obligation incurred or
commitment made by the member before the resignation.
Sec. 1745.31. Except as otherwise provided in the governing
principles, any interest or right of the member under the
governing principles is not transferable.
Sec. 1745.32. Except as otherwise provided in this chapter or
the governing principles, all of the following apply:
(A) The members of an unincorporated nonprofit association
may select the manager or managers.
(B) A manager may be a member of the association.
(C) If no manager is selected, all members are managers.
(D) Each manager has equal rights in the management and
conduct of the association's activities.
(E) All matters relating to the association's activities are
decided by its managers, except for those matters reserved for
approval by members as specified in section 1745.18 of the Revised
Code.
(F) A difference among managers is decided by a majority of
the managers.
Sec. 1745.33. (A) Except when the law or the governing
principles require that action be otherwise authorized or taken,
all of the authority of an unincorporated nonprofit association
shall be exercised by or under the direction of its manager or
managers.
(B) The only fiduciary duties a manager owes to the
association are the duties set forth in this division. The duties
of a manager are to act in good faith, in a manner the manager
reasonably believes to be in or not opposed to the best interests
of the unincorporated nonprofit association, and with the care
that an ordinarily prudent person in a similar position would use
under similar circumstances. A manager serving on a committee of
managers is acting as a manager.
(C) In performing the duties of a manager, a manager is
entitled to rely on information, opinions, reports, or statements,
including financial statements and other financial data, that are
prepared or presented by any of the following:
(1) One or more managers, officers, or employees of the
association who the manager reasonably believes are reliable and
competent in the matters prepared or presented;
(2) Counsel, public accountants, or other persons as to
matters that the manager reasonably believes are within the
person's professional or expert competence;
(3) A committee of the managers in which the manager does not
serve, duly established in accordance with a provision of the
governing principles as to matters within its designated
authority, which committee the manager reasonably believes to
merit confidence.
(D) For purposes of division (B) of this section, the
following apply:
(1) A manager shall not be found to have failed to perform
the manager's duties in accordance with that division, unless it
is proved by clear and convincing evidence in an action brought
against the manager that the manager has not acted in good faith,
in a manner the manager reasonably believes to be in or not
opposed to the best interests of the unincorporated nonprofit
association, or with the care that an ordinarily prudent person in
a similar position would use under similar circumstances. An
action under division (D)(1) of this section includes, but is not
limited to, an action that involves or affects any of the
following:
(a) A change or potential change in control of the
association;
(b) A termination or potential termination of the manager's
service to the association as manager;
(c) The manager's service in any other position or
relationship with the association.
(2) A manager shall not be considered to be acting in good
faith if the manager has knowledge concerning the matter in
question that would cause reliance on information, opinions,
reports, or statements that are prepared or presented by any of
the persons described in divisions (C)(1) to (3) of this section,
to be unwarranted.
(3) The provisions of division (D) of this section do not
limit relief available under section 1745.42 of the Revised Code.
(E)(1) Subject to divisions (E)(2) and (3) of this section, a
manager is liable in damages for any act that the manager takes or
fails to take as manager only if it is proved, by clear and
convincing evidence, in a court with jurisdiction that the act or
omission of the manager was one undertaken with a deliberate
intent to cause injury to the association or was one undertaken
with a reckless disregard for the best interests of the
association.
(2) Division (E)(1) of this section does not affect the
liability of a manager under section 1745.56 of the Revised Code.
(3) Subject to division (E)(2) of this section, division
(E)(1) of this section does not apply if, and only to the extent
that, at the time of an act or omission of a manager that is the
subject of the complaint, the governing principles of the
association state by specific reference to division (E)(1) of this
section that its provisions do not apply to the association.
(F) For purposes of this section, in determining what a
manager reasonably believes to be in or not opposed to the best
interests of the association, a manager shall consider the
purposes of the association and may consider any of the following:
(1) The interests of the employees, suppliers, creditors, and
customers of the association;
(2) The economy of this state and of the nation;
(3) Community and societal considerations;
(4) The long-term and short-term best interests of the
association, including, but not limited to, the possibility that
those interests may be best served by the continued independence
of the association.
(G) Divisions (E) and (F) of this section do not affect the
duties of a manager who acts in any capacity other than in the
capacity as a manager.
Sec. 1745.34. Unless otherwise provided in the governing
principles, the following apply:
(A) Meetings of the managers may be called by any two
managers or by any chairperson, president, or vice-president of
the unincorporated nonprofit association.
(B) Meetings of the managers may be held at any place within
or outside this state, including by means of authorized
communications equipment, unless the governing principles prohibit
participation by managers at a meeting by means of authorized
communications equipment. Participation at a meeting pursuant to
this division constitutes presence at that meeting.
(C) Notice of the place, if any, and time of each meeting of
the managers shall be given to each manager either by personal
delivery or by mail, by overnight delivery service, or by means of
authorized communications equipment at least two days before the
meeting. The notice need not specify the purposes of the meeting.
(D) Notice of adjournment of a meeting of the managers need
not be given if the time and place to which it is adjourned are
fixed and announced at that meeting.
Sec. 1745.35. Unless the governing principles provide
otherwise, a majority of the whole authorized number of managers
is necessary to constitute a quorum for a meeting of the managers,
except that a majority of the managers in office constitutes a
quorum for filling a vacancy in the position of manager. The act
of a majority of the managers present at a meeting at which a
quorum is present is the act of all of the managers, unless the
act of a greater number is required by the governing principles.
Sec. 1745.36. (A) The governing principles may provide for
the creation by the managers of an executive committee or any
other committee of the managers, to consist of one or more
managers, and may authorize the delegation to that committee of
any of the authority of the managers, however conferred.
(B) The managers may appoint one or more managers 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 managers, shall act only in the
intervals between meetings of the managers, and shall be subject
to the control and direction of the managers.
(D) Unless otherwise provided in the governing principles or
ordered by the managers, 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) Meetings of committees described in division (A) of this
section may be held by any means of authorized communication
equipment, unless participation by members of the committee at a
meeting by means of authorized communications equipment is
prohibited by the governing principles or any order of the
managers. Participation at 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 managers.
Sec. 1745.37. (A) The officers of an unincorporated nonprofit
association, if any, may consist of a president, a secretary, a
treasurer, and, if desired, a chairperson, one or more
vice-presidents, and any other officers and assistant officers
that may be considered necessary, each of whom may be designated
by any other titles that may be provided in the governing
principles or the resolutions of the managers. Unless the
governing principles provide otherwise, none of the officers need
be a manager. Any two or more offices may be held by the same
person. The officers shall be elected or appointed at the time, in
the manner, and for the terms that may be prescribed in the
governing principles. In the absence of any such provision, all
officers shall be elected annually by the managers.
(B) Unless the governing principles provide otherwise, the
following apply:
(1) All officers, as between themselves and the association,
shall respectively have the authority and perform the duties that
are determined by the persons authorized to elect or appoint them.
(2) Any officer may be removed, with or without cause, by the
persons authorized to elect or appoint the officer without
prejudice to the contract rights of that officer. The election or
appointment of an officer for a given term, or a general provision
in the governing principles with respect to term of office, shall
not be considered to create contract rights.
(3) The persons authorized to elect or appoint officers may
fill any vacancy in any office occurring for whatever reason.
Sec. 1745.38. The managers of an unincorporated nonprofit
association may authorize any mortgage, pledge, or deed of trust
of all or any of the property of the association of any
description or any interest in the property, for the purpose of
securing the payment or performance of any obligation or contract.
Unless the governing principles or the terms of any trust on which
the association holds any particular property provide otherwise,
no vote or consent of the members of the association or
authorization from the court under section 1715.39 of the Revised
Code is necessary for that action.
Sec. 1745.39. (A) On reasonable notice, a member or manager
of an unincorporated nonprofit association may inspect and copy
during the association's regular operating hours and at a
reasonable location specified by the association any record
maintained by the association regarding its activities, financial
condition, and other circumstances, to the extent the information
is material to the member's or manager's rights and duties under
the association's governing principles or this chapter.
(B) An unincorporated nonprofit association may impose
reasonable restrictions on access to and use of information to be
furnished under this section, including designating the
information confidential and imposing nondisclosure and
safeguarding obligations on the recipient.
(C) An unincorporated nonprofit association may charge a
person that makes a demand under this section reasonable copying
costs, limited to the costs of labor and materials.
(D) A former member or manager of an unincorporated nonprofit
association may have access to information to which the member or
manager was entitled while a member or manager of the association
if the information pertains to the period during which the person
was a member or manager, the former member or manager seeks the
information in good faith, and the former member or manager
satisfies divisions (A) to (C) of this section.
Sec. 1745.40. (A) Except as otherwise provided in division
(B) of this section, an unincorporated nonprofit association may
not pay dividends or distribute any part of its income or profits
to a member, manager, officer, or other private person.
(B) An unincorporated nonprofit association may do any of the
following:
(1) Pay reasonable compensation or reimburse reasonable
expenses to a member or manager for services rendered;
(2) Confer benefits on a member or manager in conformity with
its nonprofit purposes;
(3) Repurchase a membership and repay a capital contribution
made by a member to the extent authorized by its governing
principles;
(4) Make distributions of property to members upon winding up
and termination to the extent permitted by section 1745.52 of the
Revised Code.
Sec. 1745.41. (A) The office of a manager becomes vacant if
the manager dies or resigns. A resignation under this division
takes effect immediately or at any other time that the manager may
specify.
(B) A manager may be removed from office pursuant to any
procedure for removal from office provided in the governing
principles. That removal from office creates a vacancy.
(C) Unless the governing principles provide otherwise, the
remaining managers, although less than a majority of the whole
authorized number of managers, may by the vote of a majority of
their number fill any vacancy in the office of manager for the
unexpired term. For purposes of this section, a vacancy exists if
the voting members increase the authorized number of managers but
fail at the meeting at which that increase is authorized or an
adjournment of the meeting to elect the additional managers
provided for or if the voting members fail at any time to elect
the whole authorized number of managers.
Sec. 1745.42. (A) Unless otherwise provided in the governing
principles, the following apply:
(1) No contract, action, or transaction is void or voidable
with respect to an unincorporated nonprofit association because
the contract, action, or transaction is between or affects the
association and one or more of its members, managers, or officers
or is between or affects the association and any other person in
which one or more of the association's members, managers, or
officers are members, managers, or officers or in which one or
more of the association's members, managers, or officers have a
financial or personal interest, or because one or more interested
members, managers, or officers participate in or vote at the
meeting of the members, the managers, or a committee of the
managers that authorizes the contract, action, or transaction, if
any of the following applies:
(a) The material facts as to the member's, manager's, or
officer's relationship or interest and as to the contract, action,
or transaction are disclosed or are known to the managers or the
committee, and the managers or committee, in good faith reasonably
justified by the material facts, authorizes the contract, action,
or transaction by the affirmative vote of a majority of the
disinterested managers, even though the disinterested managers
constitute less than a quorum of the managers or the committee.
(b) The material facts as to the member's, manager's, or
officer's relationship or interest and as to the contract, action,
or transaction are disclosed or are known to the members entitled
to vote on the contract, action, or transaction, and the contract,
action, or transaction is specifically approved at a meeting of
the members held for the purpose of voting on the contract,
action, or transaction, by the affirmative vote of a majority of
the voting members of the unincorporated nonprofit association who
are not interested in the contract, action, or transaction.
(c) The contract, action, or transaction is fair as to the
unincorporated nonprofit association as of the time it is
authorized or approved by the managers, a committee of the
managers, or the members.
(2) Common or interested managers may be counted in
determining the presence of a quorum at a meeting of the managers
or a committee of the managers that authorizes the contract,
action, or transaction.
(3) The managers, by the affirmative vote of a majority of
those in office and irrespective of any financial or personal
interest of any of the managers, have the authority to establish
reasonable compensation, which may include pension, disability,
and death benefits, for services to the unincorporated nonprofit
association by the managers and officers, or to delegate that
authority to establish reasonable compensation to one or more
officers or managers.
(B) Divisions (A)(1) and (2) of this section do not limit or
otherwise affect the liability of managers under section 1745.56
of the Revised Code.
(C) For purposes of division (A) of this section, a manager
is not an interested manager solely because the subject of a
contract, action, or transaction may involve or effect a change in
control of the unincorporated nonprofit association or the
manager's continuation in office as a manager of the association.
(D) For purposes of this section, "action" means a resolution
that is adopted by the managers or a committee of the managers.
Sec. 1745.43. (A) An unincorporated nonprofit association
may indemnify or agree to indemnify any person who was or is a
party or is threatened to be made a party to any threatened,
pending, or completed civil, criminal, administrative, or
investigative action, suit, or proceeding, other than an action by
or in the right of the association, by reason of the fact that the
person is or was a manager, officer, employee, member, agent, or
volunteer of the association or a person acting in any other
representative capacity, however denominated, or is or was serving
at the request of the association as a director, officer,
employee, member, manager, agent, or volunteer of any other
entity, against expenses, including attorney's fees, judgments,
fines, and amounts paid in settlement actually and reasonably
incurred by the person in connection with that action, suit, or
proceeding, if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best
interests of the association, and, with respect to any criminal
action or proceeding if the person had no reasonable cause to
believe the person's conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent,
shall not create, of itself, a presumption that the person did not
act in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the association,
and, with respect to any criminal action or proceeding, a
presumption that the person had reasonable cause to believe that
the person's conduct was unlawful.
(B) An unincorporated nonprofit association may indemnify or
agree to indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending, or
completed action or suit by or in the right of the association to
procure a judgment in its favor by reason of the fact that the
person is or was a manager, officer, employee, member, agent, or
volunteer of the association or a person acting in any other
representative capacity, however denominated, or is or was serving
at the request of the association as a director, officer,
employee, member, manager, agent, or volunteer of any other
entity, against expenses, including attorney's fees, actually and
reasonably incurred by the person in connection with the defense
or settlement of that action or suit if the person acted in good
faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the association, except that
no indemnification shall be made with respect to any of the
following:
(1) Any claim, issue, or matter as to which the person is
adjudged to be liable for negligence or misconduct in the
performance of the person's duty to the unincorporated nonprofit
association unless and only to the extent that the court of common
pleas or the court in which the action or suit was brought
determines, upon application, that despite the adjudication of
liability but in view of all the circumstances of the case, the
person is fairly and reasonably entitled to indemnity for the
expenses that the court of common pleas or that other court
considers proper;
(2) Any action or suit in which liability is asserted against
a manager and that liability is asserted only pursuant to section
1745.56 of the Revised Code.
(C) To the extent that a manager, officer, employee, member,
agent, or volunteer of the association or a person acting in any
other representative capacity, however denominated, has been
successful on the merits or otherwise in defense of any action,
suit, or proceeding referred to in division (A) or (B) of this
section, or in defense of any claim, issue, or matter in the
action, suit, or proceeding, that person shall be indemnified
against expenses, including attorney's fees, actually and
reasonably incurred by the person in connection with that action,
suit, or proceeding.
(D)(1) Unless ordered by a court and subject to division (C)
of this section, any indemnification under division (A) or (B) of
this section shall be made by the unincorporated nonprofit
association only as authorized in the specific case upon a
determination that indemnification of the manager, officer,
employee, member, agent, or volunteer of the association or the
person acting in any other representative capacity, however
denominated, is proper in the circumstances because the person has
met the applicable standard of conduct set forth in division (A)
or (B) of this section. That determination shall be made in any of
the following manners:
(a) By a majority vote of a quorum consisting of managers of
the indemnifying unincorporated nonprofit association who were not
and are not parties to or threatened with the action, suit, or
proceeding referred to in division (A) or (B) of this section;
(b) Whether or not a quorum as described in division
(D)(1)(a) of this section is obtainable, and if a majority of a
quorum of disinterested managers so directs, in a written opinion
by independent legal counsel other than an attorney, or a firm
having associated with an attorney, who has been retained by or
has performed services for the association or any person to be
indemnified within the past five years;
(d) By the court of common pleas or the court in which the
action, suit, or proceeding referred to in division (A) or (B) of
this section was brought.
(2) If an action or suit by or in the right of the
unincorporated nonprofit association is involved, any
determination made by the disinterested managers under division
(D)(1)(a) of this section or by independent legal counsel under
division (D)(1)(b) of this section shall be communicated promptly
to the person who threatened or brought the action or suit under
division (B) of this section, and, within ten days after receipt
of that notification, the person shall have the right to petition
the court of common pleas or the court in which the action or suit
was brought to review the reasonableness of that determination.
(E)(1)(a) Unless at the time of a manager's or volunteer's
act or omission that is the subject of an action, suit, or
proceeding referred to in division (A) or (B) of this section the
governing principles of the unincorporated nonprofit association
stated, by specific reference to division (E)(1)(a) of this
section, that its provisions do not apply to the association,
unless the only liability asserted against a manager in an action,
suit, or proceeding referred to in division (A) or (B) of this
section is pursuant to section 1745.56 of the Revised Code, or
unless division (E)(1)(b) of this section applies, the expenses,
including attorney's fees, incurred by the manager or volunteer in
defending the action, suit, or proceeding shall be paid by the
unincorporated nonprofit association. Upon the request of the
manager or volunteer and in accordance with division (E)(2) of
this section, those expenses shall be paid as they are incurred,
in advance of the final disposition of the action, suit, or
proceeding.
(b) Notwithstanding division (E)(1)(a) of this section, the
expenses incurred by a manager or volunteer in defending an
action, suit, or proceeding referred to in division (A) or (B) of
this section, including attorney's fees, shall not be paid by the
unincorporated nonprofit association upon the final disposition of
the action, suit, or proceeding, or, if paid in advance of the
final disposition of the action, suit, or proceeding, shall be
repaid to the association by the manager or volunteer, if it is
proved, by clear and convincing evidence, in a court with
jurisdiction that the act or omission of the manager or volunteer
was one undertaken with a deliberate intent to cause injury to the
association or was one undertaken with a reckless disregard for
the best interests of the association.
(2) Expenses, including attorney's fees, incurred by a
manager, officer, employee, member, agent, or volunteer of the
association or a person acting in any other representative
capacity, however denominated, in defending any action, suit, or
proceeding referred to in division (A) or (B) of this section may
be paid by the unincorporated nonprofit association as they are
incurred, in advance of the final disposition of the action, suit,
or proceeding, as authorized by the managers in the specific case,
upon receipt of an undertaking by or on behalf of the manager,
officer, employee, member, agent, volunteer, or person acting in
any other representative capacity to repay the amount if it
ultimately is determined that the person is not entitled to be
indemnified by the association.
(F) The indemnification authorized by this section is not
exclusive of, and shall be in addition to, any other rights
granted to those seeking indemnification pursuant to the governing
principles, any agreement, a vote of the members or disinterested
managers, or otherwise, both as to action in their official
capacities and as to action in another capacity while holding
their offices or positions, shall continue as to a person who has
ceased to be a manager, officer, employee, member, agent, or
volunteer of the association or a person acting in any other
representative capacity, however denominated, and shall inure to
the benefit of the heirs, executors, and administrators of that
person.
(G) An unincorporated nonprofit association may purchase and
maintain insurance, or furnish similar protection, including, but
not limited to, trust funds, letters of credit, or self-insurance,
for or on behalf of any person who is or was a manager, officer,
employee, member, agent, or volunteer of the association or a
person acting in any other representative capacity, however
denominated, or is or was serving at the request of the
association as a director, manager, officer, employee, member,
agent, or volunteer of any other entity, against any liability
asserted against the person and incurred by the person in that
capacity, or arising out of the person's status as such, whether
or not the association would have the power to indemnify the
person against that liability under this section. Insurance may be
so purchased from or so maintained with a person in which the
association has a financial interest.
(H) The authority of an unincorporated nonprofit association
to indemnify persons pursuant to division (A) or (B) of this
section does not limit the payment of expenses as they are
incurred, in advance of the final disposition of an action, suit,
or proceeding, pursuant to division (E) of this section or the
payment of indemnification, insurance, or other protection that
may be provided pursuant to division (F) or (G) of this section.
Divisions (A) and (B) of this section do not create any obligation
to repay or return payments made by the association pursuant to
division (E), (F), or (G) of this section.
(I) As used in this section, "unincorporated nonprofit
association" includes all constituent entities in a consolidation
or merger, and the new or surviving entity, so that any person who
is or was a manager, officer, employee, member, agent, or
volunteer of a constituent entity or a person acting in any other
representative capacity, however denominated, or is or was serving
at the request of a constituent entity as a director, officer,
employee, member, manager, agent, or volunteer of any other
entity, shall stand in the same position under this section with
respect to the new or surviving entity as the person would if the
person had served the new or surviving entity in the same
capacity.
Sec. 1745.44. (A) Unless the governing principles of the
unincorporated nonprofit association provide otherwise, the lease,
sale, exchange, transfer, or other disposition of any assets of
the association may be made without the necessity of procuring
authorization from the court under section 1715.39 of the Revised
Code, upon terms and for the consideration that may be authorized
by the managers, except that a lease, sale, exchange, transfer, or
other disposition of all, or substantially all, of the assets may
be made only when that transaction is also authorized, either
before or after authorization by the managers, by the voting
members of the association at a meeting held for that purpose.
(B)(1) A public benefit association 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 association 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 association was organized, as set forth in
its governing principles, 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 public benefit association 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) The public benefit association has provided written
notice of the proposed transaction, including a copy or summary of
the terms of that 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 association, and the
proposed transaction has been approved by the members.
(c) The transaction is in accordance with the purpose or
purposes for which the public benefit association was organized,
as set forth in its governing principles, and the lessee,
purchaser, or transferee of the assets is a public benefit entity.
(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 association 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 public benefit association 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 unincorporated nonprofit association or the public
benefit association by its managers may abandon the proposed
lease, sale, exchange, transfer, or other disposition of the
assets of the association pursuant to division (A) or (B) of this
section, as applicable, subject to the contract rights of other
persons, if that power of abandonment is conferred upon the
managers either by the terms of the transaction or by the same
vote of 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 an unincorporated
nonprofit association or a public benefit association on the
ground that any section of the Revised Code applicable to the
lease, sale, exchange, transfer, or other disposition of the
assets of that association has not been complied with shall be
brought within one year after that transaction, or the action
shall be forever barred.
Sec. 1745.45. Property of any description and any interest
in the property of an unincorporated nonprofit association,
domestic or foreign, may be sold under the judgment or decree of a
court, as provided in the Revised Code with respect to similar
property of natural persons, at a public or private sale in the
manner, at the time and place, on the notice by publication or
otherwise, and on the terms that the court adjudging or decreeing
that sale considers equitable and proper. It is not necessary to
appraise that property or to advertise the sale of the property
otherwise than as the court adjudges or decrees.
Sec. 1745.46. (A)(1) Pursuant to an agreement of merger, an
unincorporated nonprofit association and one or more additional
domestic or foreign entities may be merged into a surviving
unincorporated nonprofit association. Pursuant to an agreement of
consolidation, one or more domestic or foreign entities may be
consolidated into a new unincorporated nonprofit association. 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.
(2) To effect a merger or consolidation under this section,
the manager or managers of each constituent unincorporated
nonprofit association shall approve an agreement of merger or
consolidation to be signed by the manager, the chairperson, the
president, or a vice-president and by the secretary or an
assistant secretary or, if there are no officers, by one or more
authorized managers. The agreement of merger or consolidation
shall be approved or otherwise authorized by or on behalf of each
other constituent entity in accordance with the laws under which
it exists.
(3) The agreement 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) That the named constituent entities have agreed to merge
into a specified constituent unincorporated nonprofit association,
designated in this section as the surviving unincorporated
nonprofit association, or that the named constituent entities have
agreed to consolidate into a new unincorporated nonprofit
association to be formed by the consolidation, designated in this
section as the new unincorporated nonprofit association;
(c) All statements and matters required to be set forth in an
agreement of merger or consolidation by the laws under which each
constituent entity exists;
(d) The name of the surviving or new unincorporated nonprofit
association, which may be the same as or similar to that of any
constituent unincorporated nonprofit association;
(e) The place in this state where the principal office of the
surviving or new unincorporated nonprofit association is to be
located;
(f) The names and addresses of the first managers and
officers, if any, of the surviving or new unincorporated nonprofit
association and, if desired, their term or terms of office;
(g) The name and address of the statutory agent, if any, upon
whom any process, notice, or demand against any constituent entity
or the surviving or new unincorporated nonprofit association may
be served;
(h) The terms of the merger or consolidation and the mode of
carrying those terms into effect;
(i) The governing principles of the surviving or new
unincorporated nonprofit association or a provision to the effect
that the governing principles of a specified constituent
unincorporated nonprofit association shall be the governing
principles of the surviving or new unincorporated nonprofit
association or to the effect that the voting members or the
managers of the surviving or new unincorporated nonprofit
association may adopt governing principles, or any combination of
them.
(4) The agreement of merger or consolidation also may set
forth any of the following:
(a) The specification of a date, which may be the date of the
filing of the agreement or a date subsequent to that date of
filing, upon which the merger or consolidation shall become
effective;
(b) A provision conferring upon the managers of one or more
of the constituent unincorporated nonprofit associations or the
comparable representatives of any other constituent entity the
power to abandon the merger or consolidation prior to the filing
of the agreement;
(c) Any additional provision permitted to be included in the
governing principles of a newly formed unincorporated nonprofit
association;
(d) Any additional provision considered necessary or
desirable with respect to the proposed merger or consolidation.
(B)(1) A merger or consolidation in which a public benefit
association is one of the constituent entities shall be approved
by the court of common pleas of the county in this state in which
the principal office of the public benefit association 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 the
attorney general may intervene as of right. No approval by the
court under division (B)(1) of this section is required if either
of the following applies:
(a) A public benefit association is the surviving entity in
the case of a merger and continues to be a public benefit
association or is the new unincorporated nonprofit association in
the case of a consolidation and continues to be a public benefit
association.
(b) A public benefit association is not the surviving entity
in the case of a merger or is not the new unincorporated nonprofit
association in the case of a consolidation, and all of the
following apply:
(i) On or prior to the effective date of the merger or
consolidation, assets with a value equal to the greater of the
fair market value of the net tangible and intangible assets,
including goodwill, of the public benefit association or the fair
market value of the public benefit association if it is to be
operated as a business concern, are transferred or conveyed to one
or more persons that would have received its assets under division
(D)(2) of section 1745.52 of the Revised Code had it voluntarily
dissolved.
(ii) The public benefit association returns, transfers, or
conveys any assets held by it upon a condition requiring return,
transfer, or conveyance, which condition occurs by reason of the
merger or consolidation, in accordance with that condition.
(iii) The merger or consolidation is approved by a majority
of managers of the public benefit association who will not receive
any financial or other benefit, directly or indirectly, as a
result of the merger or consolidation or by agreement, and who are
not and will not as a result of the merger or consolidation become
members, partners, or other owners, however denominated, of,
shareholders in, managers, officers, employees, agents, or other
representatives of, or consultants to, the surviving or new
entity.
(2) At least twenty days before consummation of any merger or
consolidation of a public benefit association pursuant to division
(B)(1)(b) of this section, written notice shall be delivered to
the attorney general's charitable law section. The notice shall
include a copy of the proposed plan of merger or consolidation.
The attorney general's charitable law section may review a
proposed merger or consolidation of a public benefit association
under division (B)(1)(b) of this section. 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
merger or consolidation under division (B)(1)(b) of this section.
The attorney general may retain, at the expense of the public
benefit association, 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 merger or
consolidation under division (B)(1)(b) of this section. The
attorney general may extend the date of any merger or
consolidation of a public benefit association under division
(B)(1)(b) of this section for a period not to exceed sixty days
and shall provide notice of that extension to the public benefit
association. The notice shall set forth the reasons necessitating
the extension.
(3) No member, other than a member that is a public benefit
entity, or manager of a public benefit association in that
person's capacity as a member or manager may receive or keep
anything as a result of a merger or consolidation other than as a
member or manager in the surviving or new public benefit
association without the prior written consent of the attorney
general or of the court of common pleas of the county in this
state in which the principal office of the public benefit
association is located in a proceeding in 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 the attorney general may intervene as of
right. The court shall approve the transaction if it is in the
public interest.
(4) The attorney general may institute a civil action to
enforce the requirements of divisions (B)(1), (2), and (3) of this
section in the court of common pleas of the county in this state
in which the principal office of the public benefit association 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.
Sec. 1745.461. (A)(1) Pursuant to an agreement of merger
between the constituent entities as provided in this section, a
domestic unincorporated nonprofit association and, if so provided,
one or more additional domestic or foreign entities may be merged
into a surviving entity other than a domestic unincorporated
nonprofit association. Pursuant to an agreement of consolidation,
a domestic unincorporated nonprofit association together with one
or more additional domestic or foreign entities may be
consolidated into a new entity other than a domestic
unincorporated nonprofit association to be formed by that
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.
(2) To effect a merger or consolidation under this section,
the manager or managers of each constituent unincorporated
nonprofit association shall approve an agreement of merger or
consolidation to be signed by the manager, the chairperson, the
president, or a vice-president and by the secretary or an
assistant secretary or, if there are no officers, by an authorized
manager. The agreement of merger or consolidation shall be
approved or otherwise authorized by or on behalf of each other
constituent entity in accordance with the laws under which it
exists.
(3) The agreement 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) In the case of a merger, that one or more specified
constituent entities will be merged into a specified surviving
foreign entity or surviving domestic entity other than a domestic
unincorporated nonprofit association or, in the case of a
consolidation, that the constituent entities will be consolidated
into a new foreign entity or domestic entity other than a domestic
unincorporated nonprofit association. The name of the surviving or
new entity may be the same as or similar to that of any
constituent entity.
(c) The terms of the merger or consolidation and the mode of
carrying those terms into effect;
(d) If the surviving or new entity is a foreign
unincorporated nonprofit association, all additional statements
and matters, other than the name and address of the statutory
agent, that would be required by section 1745.46 of the Revised
Code if the surviving or new unincorporated nonprofit association
were a domestic unincorporated nonprofit association;
(e) 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 in that state;
(f) All statements and matters required to be set forth in 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;
(g) The consent of the surviving or the new 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 entity any obligation of any domestic
constituent unincorporated nonprofit association. Such service
shall be made upon the secretary of state by leaving duplicate
copies of such process, together with an affidavit of the
plaintiff or one of the plaintiff's attorneys, showing the last
known address of such association, and a fee of up to five dollars
that shall be included as taxable costs in the case of judicial
proceedings. Upon receipt of such process, affidavit, and fee, the
secretary of state shall immediately give notice to the
association at the address specified in the affidavit and forward
to such address by certified mail, with a request for return
receipt, a copy of such process.
(h) If the surviving or new entity is a foreign
unincorporated nonprofit association that desires to transact
business in this state as a foreign unincorporated nonprofit
association, 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;
(i) 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;
(j) 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;
(k) If the surviving or new entity is a foreign
unincorporated association that desires to transact business in
this state as a foreign unincorporated association, a statement to
that effect, together with all of the information, if any,
required by the secretary of state when a foreign unincorporated
association registers to transact business in this state.
(4) The 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.
(B) A merger or consolidation pursuant to this section in
which a public benefit association is one of the constituent
entities shall be subject to, and shall comply with, the
provisions of divisions (B)(1)(b), (2), (3), and (4) of section
1745.46 of the Revised Code.
Sec. 1745.47. (A) The managers of each constituent domestic
unincorporated nonprofit association, upon approving an agreement
of merger or consolidation, shall direct that the agreement be
submitted to the members entitled to vote on it at a meeting of
voting members of that unincorporated nonprofit association held
for that purpose. Notice of the meeting shall be given to all
members of the constituent domestic unincorporated nonprofit
association entitled to vote at the meeting. The notice shall be
accompanied by a copy or summary of the material terms of the
agreement.
(B)(1) In order to be adopted, the agreement, including any
amendments or additions to the agreement proposed at each meeting
described in division (A) of this section, shall receive the
affirmative vote of a majority of the voting members of the
constituent domestic unincorporated nonprofit association present
at that meeting in person, by the use of authorized communications
equipment, by mail, or if permitted, by proxy if a quorum is
present, or, if the governing principles provide or permit, the
affirmative vote of a greater or lesser proportion or number of
the voting members, and the affirmative vote of the voting members
of any particular class that is required by the governing
principles. If the agreement would effect or authorize any action
by the unincorporated nonprofit association that, under any
applicable provision of law or under the governing principles of
the constituent domestic unincorporated nonprofit association,
could be effected or authorized only by or pursuant to a specified
vote of the members, the agreement, including any amendments or
additions to the agreement proposed at each meeting described in
division (A) of this section, shall be adopted by the same vote as
would be required for that action.
(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 managers of one or
more of the constituent unincorporated nonprofit associations or
the comparable representatives of any other constituent entity, if
the power of abandonment is conferred either by the agreement or
by the same vote or action as is required to adopt that agreement.
Sec. 1745.48. (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 officers, managers, general partners,
or other authorized representatives of the respective constituent
entities shall execute, acknowledge, and deliver those instruments
and do those acts. For these purposes, the existence of the
constituent entities and the authority of their respective
officers, managers, general partners, or other authorized
representatives is continued notwithstanding the merger or
consolidation.
(2) In the case of a merger in which the surviving entity is
a domestic unincorporated nonprofit association, the governing
principles of the domestic surviving unincorporated nonprofit
association in effect immediately prior to the time the merger
becomes effective shall continue as its governing principles after
the merger except as otherwise provided in the agreement of
merger. In the case of a consolidation, the new entity exists when
the consolidation becomes effective and, if it is a domestic
unincorporated nonprofit association, the governing principles
contained in or provided for in the agreement of consolidation
shall be its governing principles.
(3) The surviving or new entity possesses all assets and
property of every description and every interest in the assets and
property, wherever located, the rights, privileges, immunities,
powers, franchises, and authority, of a public as well as of a
private nature, of each constituent entity, and all obligations
belonging to or due to each constituent entity, all of which are
vested in the surviving or new entity without further act or deed.
Any right or interest in respect to any past or future devise,
bequest, conditional gift, or trust, property, or fund restricted
to particular uses, when vested in or claimed by the surviving or
new entity as a result of the merger or consolidation, shall
belong to it as a continuation without interruption of the
existence and identity of the constituent entity originally named
as taker or beneficiary. The surviving or new entity possesses
title to any real estate or any interest in the real estate vested
in any of the constituent entities. Title to any real estate or
any interest in the real estate vested in any constituent entity
shall not revert or in any way be impaired by reason of the merger
or consolidation.
(4) The surviving or new entity is liable for all of the
obligations of each constituent entity. 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 its place.
(5) All of 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 those liens immediately prior to the effective date of
the merger or consolidation. If a general partner of a constituent
partnership is not a general partner of the surviving entity or
the new entity resulting from the merger or consolidation, the
former general partner has 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 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 surviving entity or the new entity
resulting from the merger or consolidation, division (B) of
section 1782.434 of the Revised Code applies.
(C) In the case of a merger of a domestic constituent
unincorporated nonprofit association into a foreign surviving
unincorporated nonprofit association, limited liability company,
limited partnership, or unincorporated association that is not
licensed or registered to transact business in this state or in
the case of a consolidation of a domestic constituent
unincorporated nonprofit association into a new foreign
unincorporated nonprofit association, limited liability company,
limited partnership, or unincorporated association, if the
surviving or new entity intends to transact business in this
state, the surviving or new entity shall comply with all of the
requirements that are necessary for that entity to transact
business in this state as a foreign unincorporated nonprofit
association, limited liability company, limited partnership, or
unincorporated association, whichever is applicable.
(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 that merger
or consolidation or be forever barred.
(E) As used in this section, "unincorporated nonprofit
association" or "entity" applies to both domestic and foreign
unincorporated nonprofit associations or entities if the context
so permits. In the case of a foreign constituent entity or a
foreign new entity, 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. 1745.49. The merger or consolidation shall become
effective at the time that the constituent entities have complied
with the laws of each state under the laws of which the
constituent entities exist or at any later date that the agreement
of merger or consolidation specifies.
Sec. 1745.50. (A) An unincorporated nonprofit association
may be dissolved voluntarily in the manner provided in this
section.
(B) A resolution of dissolution for an unincorporated
nonprofit association shall set forth all of the following:
(1) That the association elects to be dissolved;
(2) Any additional provision considered necessary with
respect to the proposed dissolution and winding up of affairs.
(C) The managers of an unincorporated nonprofit association
may adopt a resolution of dissolution in any of the following
cases:
(1) If the association has been adjudged bankrupt or has made
a general assignment for the benefit of creditors;
(2) By leave of the court, if a receiver has been appointed
in a general creditors' suit or in any suit in which the affairs
of the association are to be wound up;
(3) If substantially all of the assets of the association
have been sold at judicial sale;
(4) When the period of existence of the association specified
in its governing principles has expired or upon the occurrence of
another event or condition specified in its governing principles;
(5) If no members of the association can be identified and
the association's operations have been discontinued for at least
three years by the managers or, if the association has no
incumbent managers, by its last preceding incumbent manager.
(D) The members of an unincorporated nonprofit association
may adopt a resolution of dissolution by the affirmative vote of
the members.
Sec. 1745.51. Following the adoption of a resolution of
dissolution, the managers in an expeditious manner shall do both
of the following:
(A) Cause a notice of voluntary dissolution to be published
once a week on the same day of each week for two successive weeks,
in a newspaper published and of general circulation in the county
in which the principal office of the unincorporated nonprofit
association was to be or is located;
(B) Cause written notice of dissolution to be given either
personally or by mail to all known creditors of, and to all known
claimants against, the dissolved association. If a statement is on
file with the secretary of state appointing an agent authorized to
receive service of process on the association, or if any other
document is on file with the secretary of state with respect to
the association, a copy of the written notice of dissolution shall
also be filed with the secretary of state.
Sec. 1745.52. (A) When an unincorporated nonprofit
association is dissolved voluntarily upon the expiration of the
period of existence of the association specified in its governing
principles, the association shall cease to carry on its activities
and shall do only those acts that are required to wind up its
affairs, and for those purposes it shall continue as an
unincorporated nonprofit association.
(B) Any claim existing or action or proceeding pending by or
against the unincorporated nonprofit association or that would
have accrued against it may be prosecuted to judgment with right
of appeal as in other cases, but any proceeding, execution, or
process, or the satisfaction or performance of any order,
judgment, or decree, may be stayed as provided in section 1745.53
of the Revised Code.
(C) Any process, notice, or demand against the unincorporated
nonprofit association may be served by delivering a copy to a
manager, liquidator, or person having charge of its assets or, if
none of those persons can be found, to the statutory agent.
(D) The managers of the unincorporated nonprofit association
and their survivors or successors shall act in accordance with the
governing principles until the affairs of the association are
completely wound up. Subject to the orders of courts of this state
having jurisdiction over the association, the managers shall
proceed as speedily as is practicable to a complete winding up of
the affairs of the association and, to the extent necessary or
expedient to that end, shall exercise all the authority of the
association. Without limiting the generality of that authority,
they may fill vacancies, elect managers, carry out contracts of
the association, make new contracts, borrow money, mortgage or
pledge the property of the association as security, sell its
assets at public or private sale, make conveyances in the
association's name, lease real property for any term, including
ninety-nine years renewable forever, settle or compromise claims
in favor of or against the association, employ one or more persons
as liquidators to wind up the affairs of the association with the
authority that the managers see fit to grant, cause the title to
any of the assets of the association to be conveyed to those
liquidators for that purpose, apply assets to the payment of
obligations, perform all other acts necessary or expedient to the
winding up of the affairs of the association, and, after paying or
adequately providing for the payment of all known obligations of
the association, distribute the remainder of the assets as
follows:
(1) Assets held upon a condition requiring return, transfer,
or conveyance, which condition will have occurred by reason of the
dissolution or otherwise, shall be returned, transferred, or
conveyed in accordance with those requirements;
(2) In the case of a public benefit association, the
following apply:
(a) Assets held by it in trust for specified purposes shall
be applied so far as is feasible in accordance with the terms of
the trust.
(b) The remaining assets not held in trust shall be applied
so far as is feasible towards carrying out the purposes stated in
its governing principles.
(c) In the event and to the extent that in the judgment of
the managers it is not feasible to apply the assets as provided in
divisions (D)(2)(a) and (b) of this section, the assets shall be
applied as may be directed by the court of common pleas of the
county in this state in which the principal office of the
association is located, in an action brought for that purpose by
the managers or any one of them or by the association, to which
action the attorney general shall be a party, in an action brought
by the attorney general in a court of competent jurisdiction, or
in an action brought as provided in section 1745.53 of the Revised
Code for the purpose of winding up the affairs of the association
under the supervision of the court.
(3) In the case of a mutual benefit association, any
remaining assets shall be distributed in accordance with the
applicable provisions of the governing principles of the
association or, to the extent that no such provision is made, the
assets shall be distributed pursuant to a plan of distribution
adopted by the members of the association at a meeting held for
the purpose of voting on dissolution or any adjournment of the
meeting. If no plan of distribution is so adopted by the members,
those remaining assets shall be distributed pursuant to a plan of
distribution adopted by the managers. If no plan of distribution
is so adopted by the members or managers, the remaining assets
shall be applied in the manner directed by the court of common
pleas of the county in this state in which the principal office of
the association is located, in an action brought for that purpose
by the mutual benefit association, by the managers or any one of
them, or by the attorney general in a court of competent
jurisdiction or in an action brought as provided in section
1745.53 of the Revised Code for the purpose of winding up the
affairs of the association under the supervision of the court.
(E) Without limiting the authority of the managers, any
action within the purview of this section that is authorized or
approved by the members at a meeting held for that purpose shall
be conclusive for all purposes upon all of the members of the
association, except that nothing in this section shall impair the
jurisdiction of courts of competent jurisdiction to enforce the
duties of a public benefit association with respect to the
application of its assets towards its public or charitable
purposes, or impair the power of the state, acting through the
attorney general, to require those assets to be applied, as nearly
as may be, towards its public or charitable purposes.
(F) All deeds and other instruments of the unincorporated
nonprofit association shall be in the name of the association and
shall be executed, acknowledged, and delivered by a manager of the
association.
(G) At any time during the winding up of its affairs, the
unincorporated nonprofit association by its managers may make
application to the court of common pleas of the county in this
state in which the principal office of the association is located
to have the winding up continued under supervision of the court as
provided in section 1745.53 of the Revised Code.
Sec. 1745.53. (A) Without limiting the generality of its
authority, the court of common pleas of the county in this state
in which is located the principal office of a voluntarily
dissolved unincorporated nonprofit association or of an
unincorporated nonprofit association whose period of existence has
expired, upon the complaint of the association, a majority of the
managers, or a creditor or member of the association and upon
notice to all of the managers and any other interested persons
that the court considers proper, at any time may order and adjudge
in regard to the following matters:
(1) The presentation and proof of all claims and demands
against the association and of all rights, interests, or liens in
or on any of its property, the fixing of the time within which and
the manner in which that proof shall be made and the person to
whom that presentation shall be made, and the barring from
participation in any distribution of assets of all persons failing
to make and present proofs as required by the order of the court;
(2) The stay of the prosecution of any proceeding against the
association or involving any of its property, and the requirement
that the parties to it present and prove their claims, demands,
rights, interests, or liens at the time and in the manner required
of creditors or others, or the grant of leave to bring or maintain
an independent proceeding to enforce liens;
(3) The settlement or determination of all claims of every
nature against the association or any of its property, the
determination of the assets required to be retained to pay or
provide for the payment of those claims or any claim, the
determination of the assets available for distribution among
members and others, and the making of new parties to the
proceeding so far as the court considers proper for the
determination of all matters;
(4) The determination of the rights of members or others in
and to the assets of the association;
(5) The presentation and the filing of intermediate and final
accounts of the managers or of the liquidators and hearings on
them, the allowance, disallowance, or settlement of those
accounts, and the discharge of the managers, the liquidators, or
any of them from their duties and liabilities;
(6) The appointment of a special master commissioner to hear
and determine any matters with the authority that the court
considers proper;
(7) The filling of any vacancies in the number of managers or
liquidators if the managers are unable to act on the vacancies for
want of a quorum or for any other reason;
(8) The appointment of a receiver, in accordance with the
usages of a court in equitable matters, to wind up the affairs of
the association, to take custody of any of its property, or for
any other purpose;
(9) The issuance or entry of any injunction or any other
order that the court considers proper in the administration of the
trust involved in the winding up of the affairs of the association
and the giving of notice of it;
(10) The allowance and payment of compensation to the
managers or any of them, to liquidators, to a receiver, to the
attorney for the complainant, or to any person properly rendering
services beneficial to the association or to those interested in
it;
(11) The entry of a judgment or decree that, if it so
provides, may operate as the deed or other instrument ordered to
be executed, or the appointment of a master to execute that deed
or instrument in the name of the association with the same effect
as if executed by an authorized manager pursuant to authority
conferred by the managers or by the members of the association if
there is no manager competent to execute the deed or instrument,
if the association or its managers do not perform or comply with a
judgment or decree of court, or if the court considers it proper.
(B) A judicial proceeding under this section concerning the
winding up of the affairs of an unincorporated nonprofit
association is a special proceeding, and final orders in the
proceeding 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.
Sec. 1745.54. (A) If after an unincorporated nonprofit
association is dissolved voluntarily or the period of existence of
the association has expired a receiver is appointed to wind up the
affairs of the association, all of the claims, demands, rights,
interests, or liens of creditors, claimants, and members shall be
determined as of the day on which the receiver was appointed.
Unless it is otherwise ordered, that appointment vests in the
receiver and the receiver's successors the right to the immediate
possession of all of the property of the association that shall,
if so ordered, execute and deliver conveyances of the property to
the receiver or the receiver's nominee.
(B) Any manager, member, or other person, whether a resident
or nonresident of this state and however interested, may be
appointed as receiver.
(C) The receiver has all the authority vested in the managers
and members of the association, shall exercise that authority
subject to the orders that are made by the court, and may be
required to qualify by giving bond to the state in the amount that
the court fixes, with surety to the satisfaction of the clerk of
the court, conditioned for the faithful discharge of the
receiver's duties and for a due accounting for all money or
property received by the receiver.
Sec. 1745.55. (A) An unincorporated nonprofit association
may be dissolved judicially and its affairs wound up in any of the
following manners:
(1) By an order of the supreme court or of a court of appeals
in an action in quo warranto brought as provided by sections
2733.02 to 2733.39 of the Revised Code, in which event the court
may order the affairs of the association to be wound up by its
managers as in the case of voluntary dissolution or by proceedings
in, and under the order of, the court of common pleas of the
county in this state in which the association has its principal
office;
(2) By an order of the court of common pleas of the county in
this state in which that association has its principal office, in
an action brought by members entitled to dissolve the association
voluntarily, if any of the following is established:
(a) The association's period of existence as set forth in its
governing principles has expired, and it is necessary in order to
protect the members that the association be judicially dissolved.
(b) The association is insolvent or is unable to afford
reasonable security to those who may deal with it, and it is
necessary in order to protect the creditors of the association
that the association be judicially dissolved.
(c) The objects of the association have wholly failed or are
entirely abandoned, or their accomplishment is impracticable.
(3) By an order of the court of common pleas of the county in
this state in which the association has its principal office, in
an action brought by a majority of the voting members or by any
lesser proportion or number of members that are entitled by the
governing principles to dissolve the association voluntarily, if
it is established that it is beneficial to the members that the
association be judicially dissolved;
(4) By an order of the court of common pleas of the county in
this state in which the association has its principal office, in
an action brought by one-half of the managers if there is an even
number of managers or by one-half of the members if it is
established that the association has an even number of managers
who are deadlocked in the management of the association's affairs,
and the members are unable to break the deadlock, or if it is
established that the association has an uneven number of managers,
and the members are deadlocked in voting power and unable to agree
upon or vote for the election of managers as successors to
managers whose terms normally would expire upon the election of
their successors.
(B) A complaint for judicial dissolution shall be verified by
any of the complainants and shall set forth facts showing that the
case is one of those specified in this section. Unless the
complainants set forth in the complaint that they are unable to
annex a list of members, a schedule shall be annexed to the
complaint setting forth the name of each member and the member's
address if it is known.
(C) Upon the filing of a complaint for judicial dissolution,
the court with which it is filed shall have the power to issue
injunctions, to appoint a receiver with the authority and duties
that the court from time to time may direct, to take any other
proceedings that may be necessary to protect the property or the
rights of the complainants or of the persons interested, and to
carry on the activities of the unincorporated nonprofit
association until a full hearing can be had. Upon or after the
filing of a complaint for judicial dissolution, the court by
injunction or order may stay the prosecution of any proceeding
against the unincorporated nonprofit association or involving any
of its property and require the parties to it to present and prove
their claims, demands, rights, interests, or liens at the time and
in the manner required of creditors or others. The court may refer
the complaint to a special master commissioner.
(D) After a hearing had upon the notice that the court may
direct to be given to all parties to the proceeding and to any
other parties in interest designated by the court, a final order
based either upon the evidence or upon the report of the special
master commissioner if one has been appointed, shall be made
dissolving the association or dismissing the complaint. An order
or judgment for the judicial dissolution of an unincorporated
nonprofit association shall contain a concise statement of the
proceedings leading up to the order or judgment, the name of the
association, the place in this state where its principal office is
located, the names and addresses of its managers, the name and
address of a statutory agent, and if desired, any other provisions
with respect to the judicial dissolution and winding up of affairs
that are considered necessary or desirable. Upon the issuance of
that order or judgment, the association shall be dissolved. To the
extent consistent with orders entered in that proceeding, the
effect of the judicial dissolution shall be the same as in the
case of voluntary dissolution, and the provisions of sections
1745.52, 1745.53, and 1745.54 of the Revised Code with respect to
the authority and duties of managers during the winding up of the
affairs of an association dissolved voluntarily, the jurisdiction
of courts over the winding up of the affairs of an association,
and receivers for winding up the affairs of an association are
applicable to associations that are judicially dissolved. If a
statement is on file with the secretary of state appointing an
agent authorized to receive service of process on the association,
or if any other document is on file with the secretary of state
with respect to the association, a certified copy of any order or
judgment dissolving the association shall be filed with the
secretary of state.
(E) A judicial proceeding under this section concerning the
judicial dissolution of an unincorporated nonprofit association is
a special proceeding, and final orders in the proceeding may be
vacated, modified, or reversed on appeal pursuant to the Rules of
Appellate Procedure or the Rules of Practice of the Supreme Court,
whichever are applicable, and, to the extent not in conflict with
those rules, Chapter 2505. of the Revised Code.
Sec. 1745.56. (A) The members, the managers, and the
officers of an unincorporated nonprofit association shall not be
personally liable for any obligation of the association.
(B)(1) Managers who vote for or assent to any of the
following shall be jointly and severally liable to the association
as provided in division (B)(2) of this section:
(a) A distribution of assets to members contrary to law or
the governing principles;
(b) A distribution of assets to persons other than creditors
during the winding up of the affairs of the association on
dissolution or otherwise without the payment of all known
obligations of the association or without making adequate
provision for that payment;
(c) The making of loans, other than in the usual conduct of
its affairs or in accordance with provisions for the making of
loans in the governing principles, to an officer, manager, or
member of the association.
(2) The managers described in division (B)(1) of this section
shall be jointly and severally liable to the association as
follows:
(a) In cases under division (B)(1)(a) of this section, except
as provided in division (B)(3) of this section, up to the amount
of the distribution in excess of the amount that could have been
distributed without violation of law or the governing principles
but not in excess of the amount that would inure to the benefit of
the creditors of the association if it was insolvent at the time
of the distribution or there was reasonable ground to believe that
by that action it would be rendered insolvent, or to the benefit
of the members other than members of the class in respect of which
the distribution was made;
(b) In cases under division (B)(1)(b) of this section, except
as provided in division (B)(3) of this section, to the extent that
those obligations that are not otherwise barred by statute are not
paid or for the payment of which adequate provision has not been
made;
(c) In cases under division (B)(1)(c) of this section, for
the amount of the loan with interest at the rate of six per cent
per annum until that amount has been paid.
(3) A manager shall not be liable under division (B)(1)(a) or
(b) of this section if in determining the amount available for any
distribution under that division, the manager in good faith relied
on a financial statement of the association prepared by an officer
or employee of the association in charge of its accounts or
certified by a public accountant or firm of public accountants, in
good faith considered the assets to be of their book value, or
followed what the manager believed to be sound accounting and
business practice.
(C) A manager who is present at a meeting of the managers or
of a committee of the managers at which action on any matter is
authorized or taken and who has not voted for or against that
action shall be presumed to have voted for the action unless the
manager's written dissent from the action is filed either during
the meeting or within a reasonable time after the adjournment of
the meeting, with the person acting as secretary of the meeting or
with the secretary of the association.
(D) A member who knowingly receives any distribution made
contrary to law or the governing principles shall be liable to the
association for the amount received by the member that is in
excess of the amount that could have been distributed without
violation of law or the governing principles.
(E) A manager against whom a claim is asserted under or
pursuant to this section and who is held liable on the claim shall
be entitled to contribution, on equitable principles, from other
managers who are also liable. Additionally, any manager against
whom a claim is asserted under or pursuant to this section or who
is held liable on the claim shall have a right of contribution
from the members who knowingly received any distribution made
contrary to law or the governing principles, and those members as
among themselves shall also be entitled to contribution in
proportion to the amounts received by them respectively.
(F) No action shall be brought by or on behalf of an
association upon any cause of action arising under division
(B)(1)(a) or (b) of this section at any time after two years from
the day on which the violation occurs.
(G) Nothing in this section shall preclude any creditor whose
claim is unpaid from exercising any rights that the creditor
otherwise would have by law to enforce the creditor's claim
against the assets of the association distributed to the members
or other persons.
Sec. 1745.57. Sections 1745.05 to 1745.56 of the Revised
Code do not affect any action or proceeding that is commenced, or
any right that accrues, before those sections take effect.
Sec. 2901.23. (A) An organization may be convicted of an
offense under any of the following circumstances:
(1) The offense is a minor misdemeanor committed by an
officer, agent, or employee of the organization acting in its
behalf and within the scope of his the officer's, agent's, or
employee's office or employment, except that if the section
defining the offense designates the officers, agents, or employees
for whose conduct the organization is accountable or the
circumstances under which it is accountable,
such those provisions
shall apply.
(2) A purpose to impose organizational liability plainly
appears in the section defining the offense, and the offense is
committed by an officer, agent, or employee of the organization
acting in its behalf and within the scope of his the officer's,
agent's, or employee's office or employment, except that if the
section defining the offense designates the officers, agents, or
employees for whose conduct the organization is accountable or the
circumstances under which it is accountable, such those provisions
shall apply.
(3) The offense consists of an omission to discharge a
specific duty imposed by law on the organization.
(4) If, acting with the kind of culpability otherwise
required for the commission of the offense, its commission was
authorized, requested, commanded, tolerated, or performed by the
board of directors, trustees, partners, or by a high managerial
officer, agent, or employee acting in behalf of the organization
and within the scope of his such a board's or person's office or
employment.
(B) When If strict liability is imposed for the commission of
an offense, a purpose to impose organizational liability shall be
presumed, unless the contrary plainly appears.
(C) In a prosecution of an organization for an offense other
than one for which strict liability is imposed, it is a defense
that the high managerial officer, agent, or employee having
supervisory responsibility over the subject matter of the offense
exercised due diligence to prevent its commission. This defense is
not available if it plainly appears inconsistent with the purpose
of the section defining the offense.
(D) As used in this section, "organization" means a
corporation for profit or not for profit, partnership, limited
partnership, joint venture, unincorporated nonprofit association,
estate, trust, or other commercial or legal entity. "Organization"
does not include an entity organized as or by a governmental
agency for the execution of a governmental program.
Sec. 3955.06. (A) There is hereby created a nonprofit an
unincorporated nonprofit association to be known as the Ohio
insurance guaranty association. All member insurers, as defined in
division (D) of section 3955.01 of the Revised Code, shall be and
remain members of the association as a condition of their
authority to transact insurance in this state. The association
shall perform its functions under a plan of operation established
and approved under section 3955.09 of the Revised Code and shall
exercise its powers through a board of directors established under
section 3955.07 of the Revised Code.
(B) For purposes of administration and assessment, the
association shall be divided into two accounts:
(1) The automobile insurance account;
(2) The account for all other insurance to which sections
3955.01 to 3955.19 of the Revised Code apply.
Sec. 3956.06. (A) There is hereby created a nonprofit an
unincorporated nonprofit association to be known as the Ohio life
and health insurance guaranty association. All member insurers
shall be and remain members of the association as a condition of
their authority to transact the business of insurance in this
state. The association shall perform its functions under the plan
of operation established and approved under section 3956.10 of the
Revised Code and shall exercise its powers through a board of
directors established under section 3956.07 of the Revised Code.
For purposes of administration and assessment, the association
shall maintain the following two accounts:
(1) The life insurance and annuity account which that
includes the following subaccounts:
(a) Life insurance subaccount;
(c) Unallocated annuity subaccount which that also includes
all annuity contracts meeting the requirements of section 403(b)
of the "Internal Revenue Code of 1986," 100 Stat. 2085, 26
U.S.C.A. 1, as amended.
(2) The health insurance account.
(B) The association is subject to the supervision of the
superintendent of insurance and to the applicable insurance laws
of this state.
Sec. 4121.70. (A) There is hereby created the
labor-management government advisory council consisting of fifteen
members appointed as follows:
(1) The governor, with the advice and consent of the senate,
shall appoint three members who, by training and vocation, are
representative of labor and three members who, by training and
vocation, are representative of employers.
(2) Ex officio, the chairpersons of the standing committees
of the house of representatives and the senate to which
legislation concerned with workers' compensation is customarily
referred. A chairperson may designate the vice-chairperson of the
committee to serve instead.
(3) One person who by training and vocation represents labor
and one person who by training and vocation represents employers
of differing political parties appointed by the speaker of the
house of representatives.
(4) One person who by training and vocation represents labor
and one person who by training and vocation represents employers
of differing political parties appointed by the president of the
senate.
(5) One person who by training and vocation represents
nonprofit vocational rehabilitation services providers that
deliver services to injured workers, appointed by the speaker of
the house of representatives;
(6) One person who by training and vocation represents
nonprofit vocational rehabilitation services providers that
deliver services to injured workers, appointed by the president of
the senate;
(7) The governor, with the advice and consent of the senate,
shall apoint appoint one member who, by training and vocation,
represents a nonprofit association organization of vocational
rehabilitation services providers that deliver services to injured
workers.
(B) Members appointed by the governor shall serve for a term
of six years with each term ending on the same day of the year in
which the member was first appointed, except that each member
shall serve for a period of sixty additional days at the end of
the member's term or until the member's successor is appointed and
qualifies, whichever date occurs first. Of the members first
appointed to the council by the governor, one member each
representing labor and management shall serve an initial term of
two years, one member each representing labor and management shall
serve a term of four years, and the remaining two members shall
serve full six-year terms. The members initially appointed by the
speaker of the house of representatives and the president of the
senate shall serve a term of six years. Thereafter, members shall
be appointed to and serve full six-year terms. Members are
eligible for reappointment to any number of additional terms.
Legislative members shall serve a term that coincides with
the two-year legislative session in which they are first appointed
with each term ending on the thirty-first day of December of the
even-numbered year. Legislative members are eligible for
reappointment.
Vacancies on the council shall be filled in the same manner
as the original appointment. All members of the council shall
serve without additional compensation but shall be reimbursed by
the bureau of workers' compensation for actual and necessary
expenses.
The council shall advise the bureau of workers' compensation
board of directors and the administrator of workers' compensation
on the quality and effectiveness of rehabilitation services and
make recommendations pertaining to the bureau's rehabilitation
program, including the operation of that program.
Sec. 4303.201. (A) As used in this section:
(1) "Convention facility" means any structure owned or leased
by a municipal corporation or county which was expressly designed
and constructed and is currently used for the purpose of
presenting conventions, public meetings, and exhibitions.
(2) "Nonprofit organization" means any unincorporated
nonprofit association or nonprofit corporation that is not formed
for the pecuniary gain or profit of, and whose net earnings or any
part thereof of whose net earnings is not distributable to, its
members, trustees, officers, or other private persons; provided,
that the payment of reasonable compensation for services rendered
and the distribution of assets on dissolution shall not be
considered pecuniary gain or profit or distribution of earnings in
an association or corporation all of whose members are nonprofit
corporations. Distribution of earnings to member organizations
does not deprive it of the status of a nonprofit organization.
(B) An F-1 permit may be issued to any nonprofit organization
to allow the nonprofit organization and its members and their
guests to lawfully bring beer, wine, and intoxicating liquor in
its original package, flasks, or other containers into a
convention facility for consumption therein, if both of the
following requirements are met:
(1) The superintendent of liquor control is satisfied the
organization meets the definition of a nonprofit organization as
set forth in division (A)(2) of this section, the nonprofit
organization's membership includes persons residing in two or more
states, and the organization's total membership is in excess of
five hundred. The superintendent may accept a sworn statement by
the president or other chief executive officer of the nonprofit
organization as proof of the matters required in this division.
(2) The managing official or employee of the convention
facility has given written consent to the use of the convention
facility and to the application for the F-1 permit, as shown in
the nonprofit organization's application to the superintendent.
(C) The superintendent shall specify individually the
effective period of each F-1 permit on the permit, which shall not
exceed three days. The fee for an F-1 permit is two hundred fifty
dollars. The superintendent shall prepare and make available
application forms to request F-1 permits and may require
applicants to furnish such information as the superintendent
determines to be necessary for the administration of this section.
(D) No holder of an F-1 permit shall make a specific charge
for beer, wine, or intoxicating liquor by the drink, or in its
original package, flasks, or other containers in connection with
its use of the convention facility under the permit.
Sec. 4303.204. (A) The division of liquor control may issue
an F-4 permit to an association organization or corporation
organized not-for-profit in this state to conduct an event that
includes the introduction, showcasing, or promotion of Ohio wines,
if the event has all of the following characteristics:
(1) It is coordinated by that association organization or
corporation, and the association organization or corporation is
responsible for the activities at it.
(2) It has as one of its purposes the intent to introduce,
showcase, or promote Ohio wines to persons who attend it.
(3) It includes the sale of food for consumption on the
premises where sold.
(4) It features at least three A-2 permit holders who sell
Ohio wine at it.
(B) The holder of an F-4 permit may furnish, with or without
charge, wine that it has obtained from the A-2 permit holders that
are participating in the event for which the F-4 permit is issued,
in two-ounce samples for consumption on the premises where
furnished and may sell such wine by the glass for consumption on
the premises where sold. The holder of an A-2 permit that is
participating in the event for which the F-4 permit is issued may
sell wine that it has manufactured, in sealed containers for
consumption off the premises where sold. Wine may be furnished or
sold on the premises of the event for which the F-4 permit is
issued only where and when the sale of wine is otherwise permitted
by law.
(C) The premises of the event for which the F-4 permit is
issued shall be clearly defined and sufficiently restricted to
allow proper enforcement of the permit by state and local law
enforcement officers. If an F-4 permit is issued for all or a
portion of the same premises for which another class of permit is
issued, that permit holder's privileges will be suspended in that
portion of the premises in which the F-4 permit is in effect.
(D) No F-4 permit shall be effective for more than
seventy-two consecutive hours. No sales or furnishing of wine
shall take place under an F-4 permit after one a.m.
(E) The division shall not issue more than six F-4 permits to
the same not-for-profit association organization or corporation in
any one calendar year.
(F) An applicant for an F-4 permit shall apply for the permit
not later than thirty days prior to the first day of the event for
which the permit is sought. The application for the permit shall
list all of the A-2 permit holders that will participate in the
event for which the F-4 permit is sought. The fee for the F-4
permit is sixty dollars per day.
The division shall prepare and make available an F-4 permit
application form and may require applicants for and holders of the
F-4 permit to provide information that is in addition to that
required by this section and that is necessary for the
administration of this section.
(G)(1) The holder of an F-4 permit is responsible for, and is
subject to penalties for, any violations of this chapter or
Chapter 4301. of the Revised Code or the rules adopted under this
and that chapter.
(2) An F-4 permit holder shall not allow an A-2 permit holder
to participate in the event for which the F-4 permit is issued if
the A-2 or A-1-A permit of that A-2 permit holder is under
suspension.
(3) The division may refuse to issue an F-4 permit to an
applicant who has violated any provision of this chapter or
Chapter 4301. of the Revised Code during the applicant's previous
operation under an F-4 permit, for a period of up to two years
after the date of the violation.
(H)(1) Notwithstanding division (D) of section 4301.22 of the
Revised Code, an A-2 permit holder that participates in an event
for which an F-4 permit is issued may donate wine that it has
manufactured to the holder of that F-4 permit. The holder of an
F-4 permit may return unused and sealed containers of wine to the
A-2 permit holder that donated the wine at the conclusion of the
event for which the F-4 permit was issued.
(2) The participation by an A-2 permit holder or its
employees in an event for which an F-4 permit is issued does not
violate section 4301.24 of the Revised Code.
Sec. 4303.207. (A) As used in this section:
(1) "Nonprofit organization" means any unincorporated
nonprofit association or nonprofit corporation that is not formed
for the pecuniary gain or profit of, and whose net earnings or any
part of whose net earnings is not distributable to, its members,
trustees, directors, officers, or other private persons.
(2) "Qualified golf event" means a golf tournament or other
golf competition event that meets all of the following
requirements:
(a) It is hosted by the nonprofit organization to which an
F-7 permit is issued.
(b) It is sanctioned by a recognized national golf
organization.
(c) It includes the sale of food for consumption on the
premises for which an F-7 permit is issued.
(d) Contributions to charity are made from the proceeds of
the event that equal in the aggregate at least two hundred
thousand dollars.
(3) "Recognized national golf organization" means any of the
following:
(a) The United States golf association;
(b) The professional golf association of America (PGA);
(c) The PGA tour, including the champions tour and the
nationwide tour;
(e) The successors of any organization listed in divisions
(A)(3)(a) to (d) of this section.
(B) An F-7 permit may be issued to a nonprofit organization
to sell beer, wine, mixed beverages, and spirituous liquor by the
individual drink at a qualified golf event being held on premises
located in a political subdivision or part of a political
subdivision where the sale of beer, wine, mixed beverages, and
spirituous liquor is otherwise permitted by law on that day, if
both of the following requirements are met:
(1) The superintendent of liquor control is satisfied that
the organization is a nonprofit organization. For this purpose,
the superintendent may accept as proof a sworn statement by the
president or other chief executive officer of the applicant
organization.
(2) The superintendent is satisfied that the event for which
the F-7 permit is sought to be issued is a qualified golf event.
For this purpose, the superintendent may accept as proof a sworn
statement by the president or other chief executive officer of the
applicant organization.
(C) The premises for which the F-7 permit is issued shall
meet all of the following requirements:
(1) Be owned or leased by the nonprofit organization to which
the F-7 permit is issued;
(2) Be limited to areas in which the qualified golf event is
conducted and to other areas that are contiguous to those areas in
which the qualified golf event is conducted, which areas are
specifically designated for food and beverage consumption and
hospitality for the qualified golf event;
(4) Be sufficiently restricted to allow proper supervision of
use of the permit by state and local law enforcement personnel.
(D) A nonprofit organization to which an F-7 permit is issued
shall be held responsible for any conduct that violates the laws
pertaining to the sale of beer, wine, mixed beverages, or
spirituous liquor.
(E) The division of liquor control shall prepare and make
available an F-7 permit application form and may require
applicants for the permit to provide information that, in addition
to the information required by this section, is necessary for the
administration of this section.
(F) An F-7 permit shall be effective for a period not to
exceed eight consecutive days. The division of liquor control
shall not issue more than two F-7 permits per calendar year to the
same nonprofit organization. The fee for an F-7 permit is four
hundred fifty dollars.
Sec. 5111.151. (A)(1) This section applies only to either of
the following:
(a) Initial eligibility determinations for the medicaid
program made by the department of job and family services pursuant
to section 5101.47 of the Revised Code or by a county department
of job and family services pursuant to section 5111.012 of the
Revised Code;
(b) An appeal from a determination described in division
(A)(1)(a) of this section pursuant to section 5101.35 of the
Revised Code.
(2)(a) Except as provided in division (A)(2)(b) of this
section, this section shall not be used by a court to determine
the effect of a trust on an individual's initial eligibility for
the medicaid program.
(b) The prohibition in division (A)(2)(a) of this section
does not apply to an appeal described in division (A)(1)(b) of
this section.
(B) As used in this section:
(1) "Trust" means any arrangement in which a grantor
transfers real or personal property to a trust with the intention
that it be held, managed, or administered by at least one trustee
for the benefit of the grantor or beneficiaries. "Trust" includes
any legal instrument or device similar to a trust.
(2) "Legal instrument or device similar to a trust" includes,
but is not limited to, escrow accounts, investment accounts,
partnerships, contracts, and other similar arrangements that are
not called trusts under state law but are similar to a trust and
to which all of the following apply:
(a) The property in the trust is held, managed, retained, or
administered by a trustee.
(b) The trustee has an equitable, legal, or fiduciary duty to
hold, manage, retain, or administer the property for the benefit
of the beneficiary.
(c) The trustee holds identifiable property for the
beneficiary.
(3) "Grantor" is a person who creates a trust, including all
of the following:
(b) An individual's spouse;
(c) A person, including a court or administrative body, with
legal authority to act in place of or on behalf of an individual
or an individual's spouse;
(d) A person, including a court or administrative body, that
acts at the direction or on request of an individual or the
individual's spouse.
(4) "Beneficiary" is a person or persons, including a
grantor, who benefits in some way from a trust.
(5) "Trustee" is a person who manages a trust's principal and
income for the benefit of the beneficiaries.
(6) "Person" has the same meaning as in section 1.59 of the
Revised Code and includes an individual, corporation, business
trust, estate, trust, partnership, and association.
(7) "Applicant" is an individual who applies for medicaid or
the individual's spouse.
(8) "Recipient" is an individual who receives medicaid or the
individual's spouse.
(9) "Revocable trust" is a trust that can be revoked by the
grantor or the beneficiary, including all of the following, even
if the terms of the trust state that it is irrevocable:
(a) A trust that provides that the trust can be terminated
only by a court;
(b) A trust that terminates on the happening of an event, but
only if the event occurs at the direction or control of the
grantor, beneficiary, or trustee.
(10) "Irrevocable trust" is a trust that cannot be revoked by
the grantor or terminated by a court and that terminates only on
the occurrence of an event outside of the control or direction of
the beneficiary or grantor.
(11) "Payment" is any disbursal from the principal or income
of the trust, including actual cash, noncash or property
disbursements, or the right to use and occupy real property.
(12) "Payments to or for the benefit of the applicant or
recipient" is a payment to any person resulting in a direct or
indirect benefit to the applicant or recipient.
(13) "Testamentary trust" is a trust that is established by a
will and does not take effect until after the death of the person
who created the trust.
(C)(1) If an applicant or recipient is a beneficiary of a
trust, the county department of job and family services shall
determine what type of trust it is and shall treat the trust in
accordance with the appropriate provisions of this section and
rules adopted by the department of job and family services
governing trusts. The county department of job and family services
may determine that the trust or portion of the trust:
(a) Is a resource available to the applicant or recipient;
(b) Contains income available to the applicant or recipient;
(c) Constitutes both items described in divisions (C)(1)(a)
and (b) of this section;
(d) Is neither an item described in division (C)(1)(a) nor
(C)(1)(b) of this section.
(2) Except as provided in division (F) of this section, a
trust or portion of a trust that is a resource available to the
applicant or recipient or contains income available to the
applicant or recipient shall be counted for purposes of
determining medicaid eligibility.
(D)(1) A trust or legal instrument or device similar to a
trust shall be considered a medicaid qualifying trust if all of
the following apply:
(a) The trust was established on or prior to August 10, 1993.
(b) The trust was not established by a will.
(c) The trust was established by an applicant or recipient.
(d) The applicant or recipient is or may become the
beneficiary of all or part of the trust.
(e) Payment from the trust is determined by one or more
trustees who are permitted to exercise any discretion with respect
to the distribution to the applicant or recipient.
(2) If a trust meets the requirement of division (D)(1) of
this section, the amount of the trust that is considered by the
county department of job and family services to be a resource
available to the applicant or recipient shall be the maximum
amount of payments permitted under the terms of the trust to be
distributed to the applicant or recipient, assuming the full
exercise of discretion by the trustee or trustees. The maximum
amount shall include only amounts that are permitted to be
distributed but are not distributed from either the income or
principal of the trust.
(3) Amounts that are actually distributed from a medicaid
qualifying trust to a beneficiary for any purpose shall be treated
in accordance with rules adopted by the department of job and
family services governing income.
(4) Availability of a medicaid qualifying trust shall be
considered without regard to any of the following:
(a) Whether or not the trust is irrevocable or was
established for purposes other than to enable a grantor to qualify
for medicaid, medical assistance for covered families and
children, or as a qualified medicare beneficiary, specified
low-income medicare beneficiary, qualifying individual-1, or
qualifying individual-2;
(b) Whether or not the trustee actually exercises discretion.
(5) If any real or personal property is transferred to a
medicaid qualifying trust that is not distributable to the
applicant or recipient, the transfer shall be considered an
improper disposition of assets and shall be subject to section
5111.0116 of the Revised Code and rules to implement that section
adopted under section 5111.011 of the Revised Code.
(6) The baseline date for the look-back period for
disposition of assets involving a medicaid qualifying trust shall
be the date on which the applicant or recipient is both
institutionalized and first applies for medicaid.
(E)(1) A trust or legal instrument or device similar to a
trust shall be considered a self-settled trust if all of the
following apply:
(a) The trust was established on or after August 11, 1993.
(b) The trust was not established by a will.
(c) The trust was established by an applicant or recipient,
spouse of an applicant or recipient, or a person, including a
court or administrative body, with legal authority to act in place
of or on behalf of an applicant, recipient, or spouse, or acting
at the direction or on request of an applicant, recipient, or
spouse.
(2) A trust that meets the requirements of division (E)(1) of
this section and is a revocable trust shall be treated by the
county department of job and family services as follows:
(a) The corpus of the trust shall be considered a resource
available to the applicant or recipient.
(b) Payments from the trust to or for the benefit of the
applicant or recipient shall be considered unearned income of the
applicant or recipient.
(c) Any other payments from the trust shall be considered an
improper disposition of assets and shall be subject to section
5111.0116 of the Revised Code and rules to implement that section
adopted under section 5111.011 of the Revised Code.
(3) A trust that meets the requirements of division (E)(1) of
this section and is an irrevocable trust shall be treated by the
county department of job and family services as follows:
(a) If there are any circumstances under which payment from
the trust could be made to or for the benefit of the applicant or
recipient, including a payment that can be made only in the
future, the portion from which payments could be made shall be
considered a resource available to the applicant or recipient. The
county department of job and family services shall not take into
account when payments can be made.
(b) Any payment that is actually made to or for the benefit
of the applicant or recipient from either the corpus or income
shall be considered unearned income.
(c) If a payment is made to someone other than to the
applicant or recipient and the payment is not for the benefit of
the applicant or recipient, the payment shall be considered an
improper disposition of assets and shall be subject to section
5111.0116 of the Revised Code and rules to implement that section
adopted under section 5111.011 of the Revised Code.
(d) The date of the disposition shall be the later of the
date of establishment of the trust or the date of the occurrence
of the event.
(e) When determining the value of the disposed asset under
this provision, the value of the trust shall be its value on the
date payment to the applicant or recipient was foreclosed.
(f) Any income earned or other resources added subsequent to
the foreclosure date shall be added to the total value of the
trust.
(g) Any payments to or for the benefit of the applicant or
recipient after the foreclosure date but prior to the application
date shall be subtracted from the total value. Any other payments
shall not be subtracted from the value.
(h) Any addition of assets after the foreclosure date shall
be considered a separate disposition.
(4) If a trust is funded with assets of another person or
persons in addition to assets of the applicant or recipient, the
applicable provisions of this section and rules adopted by the
department of job and family services governing trusts shall apply
only to the portion of the trust attributable to the applicant or
recipient.
(5) The availability of a self-settled trust shall be
considered without regard to any of the following:
(a) The purpose for which the trust is established;
(b) Whether the trustees have exercised or may exercise
discretion under the trust;
(c) Any restrictions on when or whether distributions may be
made from the trust;
(d) Any restrictions on the use of distributions from the
trust.
(6) The baseline date for the look-back period for
dispositions of assets involving a self-settled trust shall be the
date on which the applicant or recipient is both institutionalized
and first applies for medicaid.
(F) The principal or income from any of the following shall
not be a resource available to the applicant or recipient:
(1)(a) A special needs trust that meets all of the following
requirements:
(i) The trust contains assets of an applicant or recipient
under sixty-five years of age and may contain the assets of other
individuals.
(ii) The applicant or recipient is disabled as defined in
rules adopted by the department of job and family services.
(iii) The trust is established for the benefit of the
applicant or recipient by a parent, grandparent, legal guardian,
or a court.
(iv) The trust requires that on the death of the applicant or
recipient the state will receive all amounts remaining in the
trust up to an amount equal to the total amount of medicaid paid
on behalf of the applicant or recipient.
(b) If a special needs trust meets the requirements of
division (F)(1)(a) of this section and has been established for a
disabled applicant or recipient under sixty-five years of age, the
exemption for the trust granted pursuant to division (F) of this
section shall continue after the disabled applicant or recipient
becomes sixty-five years of age if the applicant or recipient
continues to be disabled as defined in rules adopted by the
department of job and family services. Except for income earned by
the trust, the grantor shall not add to or otherwise augment the
trust after the applicant or recipient attains sixty-five years of
age. An addition or augmentation of the trust by the applicant or
recipient with the applicant's own assets after the applicant or
recipient attains sixty-five years of age shall be treated as an
improper disposition of assets.
(c) Cash distributions to the applicant or recipient shall be
counted as unearned income. All other distributions from the trust
shall be treated as provided in rules adopted by the department of
job and family services governing in-kind income.
(d) Transfers of assets to a special needs trust shall not be
treated as an improper transfer of resources. An Asset asset held
prior to the transfer to the trust shall be considered as a
resource available to the applicant or recipient, income available
to the applicant or recipient, or both a resource and income
available to the individual.
(2)(a) A qualifying income trust that meets all of the
following requirements:
(i) The trust is composed only of pension, social security,
and other income to the applicant or recipient, including
accumulated interest in the trust.
(ii) The income is received by the individual and the right
to receive the income is not assigned or transferred to the trust.
(iii) The trust requires that on the death of the applicant
or recipient the state will receive all amounts remaining in the
trust up to an amount equal to the total amount of medicaid paid
on behalf of the applicant or recipient.
(b) No resources shall be used to establish or augment the
trust.
(c) If an applicant or recipient has irrevocably transferred
or assigned the applicant's or recipient's right to receive income
to the trust, the trust shall not be considered a qualifying
income trust by the county department of job and family services.
(d) Income placed in a qualifying income trust shall not be
counted in determining an applicant's or recipient's eligibility
for medicaid. The recipient of the funds may place any income
directly into a qualifying income trust without those funds
adversely affecting the applicant's or recipient's eligibility for
medicaid. Income generated by the trust that remains in the trust
shall not be considered as income to the applicant or recipient.
(e) All income placed in a qualifying income trust shall be
combined with any income available to the individual that is not
placed in the trust to arrive at a base income figure to be used
for spend down calculations.
(f) The base income figure shall be used for post-eligibility
deductions, including personal needs allowance, monthly income
allowance, family allowance, and medical expenses not subject to
third party payment. Any income remaining shall be used toward
payment of patient liability. Payments made from a qualifying
income trust shall not be combined with the base income figure for
post-eligibility calculations.
(g) The base income figure shall be used when determining the
spend down budget for the applicant or recipient. Any income
remaining after allowable deductions are permitted as provided
under rules adopted by the department of job and family services
shall be considered the applicant's or recipient's spend down
liability.
(3)(a) A pooled trust that meets all of the following
requirements:
(i) The trust contains the assets of the applicant or
recipient of any age who is disabled as defined in rules adopted
by the department of job and family services.
(ii) The trust is established and managed by a nonprofit
association organization.
(iii) A separate account is maintained for each beneficiary
of the trust but, for purposes of investment and management of
funds, the trust pools the funds in these accounts.
(iv) Accounts in the trust are established by the applicant
or recipient, the applicant's or recipient's parent, grandparent,
or legal guardian, or a court solely for the benefit of
individuals who are disabled.
(v) The trust requires that, to the extent that any amounts
remaining in the beneficiary's account on the death of the
beneficiary are not retained by the trust, the trust pay to the
state the amounts remaining in the trust up to an amount equal to
the total amount of medicaid paid on behalf of the beneficiary.
(b) Cash distributions to the applicant or recipient shall be
counted as unearned income. All other distributions from the trust
shall be treated as provided in rules adopted by the department of
job and family services governing in-kind income.
(c) Transfers of assets to a pooled trust shall not be
treated as an improper disposition of assets. An asset held prior
to the transfer to the trust shall be considered as a resource
available to the applicant or recipient, income available to the
applicant or recipient, or both a resource and income available to
the applicant or recipient.
(4) A supplemental services trust that meets the requirements
of section 5815.28 of the Revised Code and to which all of the
following apply:
(a) A person may establish a supplemental services trust
pursuant to section 5815.28 of the Revised Code only for another
person who is eligible to receive services through one of the
following agencies:
(i) The department of developmental disabilities;
(ii) A county board of developmental disabilities;
(iii) The department of mental health;
(iv) A board of alcohol, drug addiction, and mental health
services.
(b) A county department of job and family services shall not
determine eligibility for another agency's program. An applicant
or recipient shall do one of the following:
(i) Provide documentation from one of the agencies listed in
division (F)(4)(a) of this section that establishes that the
applicant or recipient was determined to be eligible for services
from the agency at the time of the creation of the trust;
(ii) Provide an order from a court of competent jurisdiction
that states that the applicant or recipient was eligible for
services from one of the agencies listed in division (F)(4)(a) of
this section at the time of the creation of the trust.
(c) At the time the trust is created, the trust principal
does not exceed the maximum amount permitted. The maximum amount
permitted in calendar year 2006 is two hundred twenty-two thousand
dollars. Each year thereafter, the maximum amount permitted is the
prior year's amount plus two thousand dollars.
(d) A county department of job and family services shall
review the trust to determine whether it complies with the
provisions of section 5815.28 of the Revised Code.
(e) Payments from supplemental services trusts shall be
exempt as long as the payments are for supplemental services as
defined in rules adopted by the department of job and family
services. All supplemental services shall be purchased by the
trustee and shall not be purchased through direct cash payments to
the beneficiary.
(f) If a trust is represented as a supplemental services
trust and a county department of job and family services
determines that the trust does not meet the requirements provided
in division (F)(4) of this section and section 5815.28 of the
Revised Code, the county department of job and family services
shall not consider it an exempt trust.
(G)(1) A trust or legal instrument or device similar to a
trust shall be considered a trust established by an individual for
the benefit of the applicant or recipient if all of the following
apply:
(a) The trust is created by a person other than the applicant
or recipient.
(b) The trust names the applicant or recipient as a
beneficiary.
(c) The trust is funded with assets or property in which the
applicant or recipient has never held an ownership interest prior
to the establishment of the trust.
(2) Any portion of a trust that meets the requirements of
division (G)(1) of this section shall be a resource available to
the applicant or recipient only if the trust permits the trustee
to expend principal, corpus, or assets of the trust for the
applicant's or recipient's medical care, care, comfort,
maintenance, health, welfare, general well being, or any
combination of these purposes.
(3) A trust that meets the requirements of division (G)(1) of
this section shall be considered a resource available to the
applicant or recipient even if the trust contains any of the
following types of provisions:
(a) A provision that prohibits the trustee from making
payments that would supplant or replace medicaid or other public
assistance;
(b) A provision that prohibits the trustee from making
payments that would impact or have an effect on the applicant's or
recipient's right, ability, or opportunity to receive medicaid or
other public assistance;
(c) A provision that attempts to prevent the trust or its
corpus or principal from being a resource available to the
applicant or recipient.
(4) A trust that meets the requirements of division (G)(1) of
this section shall not be counted as a resource available to the
applicant or recipient if at least one of the following
circumstances applies:
(a) If a trust contains a clear statement requiring the
trustee to preserve a portion of the trust for another beneficiary
or remainderman, that portion of the trust shall not be counted as
a resource available to the applicant or recipient. Terms of a
trust that grant discretion to preserve a portion of the trust
shall not qualify as a clear statement requiring the trustee to
preserve a portion of the trust.
(b) If a trust contains a clear statement requiring the
trustee to use a portion of the trust for a purpose other than
medical care, care, comfort, maintenance, welfare, or general well
being of the applicant or recipient, that portion of the trust
shall not be counted as a resource available to the applicant or
recipient. Terms of a trust that grant discretion to limit the use
of a portion of the trust shall not qualify as a clear statement
requiring the trustee to use a portion of the trust for a
particular purpose.
(c) If a trust contains a clear statement limiting the
trustee to making fixed periodic payments, the trust shall not be
counted as a resource available to the applicant or recipient and
payments shall be treated in accordance with rules adopted by the
department of job and family services governing income. Terms of a
trust that grant discretion to limit payments shall not qualify as
a clear statement requiring the trustee to make fixed periodic
payments.
(d) If a trust contains a clear statement that requires the
trustee to terminate the trust if it is counted as a resource
available to the applicant or recipient, the trust shall not be
counted as such. Terms of a trust that grant discretion to
terminate the trust do not qualify as a clear statement requiring
the trustee to terminate the trust.
(e) If a person obtains a judgment from a court of competent
jurisdiction that expressly prevents the trustee from using part
or all of the trust for the medical care, care, comfort,
maintenance, welfare, or general well being of the applicant or
recipient, the trust or that portion of the trust subject to the
court order shall not be counted as a resource available to the
applicant or recipient.
(f) If a trust is specifically exempt from being counted as a
resource available to the applicant or recipient by a provision of
the Revised Code, rules, or federal law, the trust shall not be
counted as such.
(g) If an applicant or recipient presents a final judgment
from a court demonstrating that the applicant or recipient was
unsuccessful in a civil action against the trustee to compel
payments from the trust, the trust shall not be counted as a
resource available to the applicant or recipient.
(h) If an applicant or recipient presents a final judgment
from a court demonstrating that in a civil action against the
trustee the applicant or recipient was only able to compel limited
or periodic payments, the trust shall not be counted as a resource
available to the applicant or recipient and payments shall be
treated in accordance with rules adopted by the department of job
and family services governing income.
(i) If an applicant or recipient provides written
documentation showing that the cost of a civil action brought to
compel payments from the trust would be cost prohibitive, the
trust shall not be counted as a resource available to the
applicant or recipient.
(5) Any actual payments to the applicant or recipient from a
trust that meet the requirements of division (G)(1) of this
section, including trusts that are not counted as a resource
available to the applicant or recipient, shall be treated as
provided in rules adopted by the department of job and family
services governing income. Payments to any person other than the
applicant or recipient shall not be considered income to the
applicant or recipient. Payments from the trust to a person other
than the applicant or recipient shall not be considered an
improper disposition of assets.
Sec. 5701.13. (A) As used in this section:
(1) "Nursing home" means a nursing home or a home for the
aging, as those terms are defined in section 3721.01 of the
Revised Code, that is issued a license pursuant to section 3721.02
of the Revised Code.
(2) "Residential care facility" means a residential care
facility, as defined in section 3721.01 of the Revised Code, that
is issued a license pursuant to section 3721.02 of the Revised
Code.
(3) "Adult care facility" means an adult care facility as
defined in section 5119.70 of the Revised Code that is issued a
license pursuant to section 5119.73 of the Revised Code.
(B) As used in Title LVII of the Revised Code, and for the
purpose of other sections of the Revised Code that refer
specifically to Chapter 5701. or section 5701.13 of the Revised
Code, a "home for the aged" means either of the following:
(1) A place of residence for aged and infirm persons that
satisfies divisions (B)(1)(a) to (e) of this section:
(a) It is a nursing home, residential care facility, or adult
care facility.
(b) It is owned by a corporation, unincorporated nonprofit
association, or trust of a charitable, religious, or fraternal
nature, which that is organized and operated not for profit, which
is not formed for the pecuniary gain or profit of, and whose net
earnings or any part of whose net earnings is not distributable
to, its members, trustees, officers, or other private persons, and
which is exempt from federal income taxation under section 501 of
the "Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C. 1.
(c) It is open to the public without regard to race, color,
or national origin.
(d) It does not pay, directly or indirectly, compensation for
services rendered, interest on debts incurred, or purchase price
for land, building, equipment, supplies, or other goods or
chattels, which compensation, interest, or purchase price is
unreasonably high.
(e) It provides services for the life of each resident
without regard to the resident's ability to continue payment for
the full cost of the services.
(2) A place of residence that satisfies divisions (B)(1)(b),
(d), and (e) of this section; that satisfies the definition of
"nursing home" or "residential care facility" under section
3721.01 of the Revised Code or the definition of "adult care
facility" under section 5119.70 of the Revised Code regardless of
whether it is licensed as such a home or facility; and that is
provided at no charge to individuals on account of their service
without compensation to a charitable, religious, fraternal, or
educational institution, which individuals are aged or infirm and
are members of the corporation, association, or trust that owns
the place of residence. For the purposes of division (B)(2) of
this section, "compensation" does not include furnishing room and
board, clothing, health care, or other necessities, or stipends or
other de minimis payments to defray the cost thereof.
Exemption from taxation shall be accorded, on proper
application, only to those homes or parts of homes which that meet
the standards and provide the services specified in this section.
Nothing in this section shall be construed as preventing a
home from requiring a resident with financial need to apply for
any applicable financial assistance or requiring a home to retain
a resident who willfully refuses to pay for services for which the
resident has contracted even though the resident has sufficient
resources to do so.
(C)(1) If a corporation, unincorporated nonprofit
association, or trust described in division (B)(1)(b) of this
section is granted a certificate of need pursuant to section
3702.52 of the Revised Code to construct, add to, or otherwise
modify a nursing home, or is given approval pursuant to section
3791.04 of the Revised Code to construct, add to, or otherwise
modify a residential care facility or adult care facility and if
the corporation, association, or trust submits an affidavit to the
tax commissioner stating that, commencing on the date of licensure
and continuing thereafter, the home or facility will be operated
in accordance with the requirements of divisions (B)(1)(a) to (e)
of this section, the corporation, association, or trust shall be
considered to be operating a "home for the aged" within the
meaning of division (B)(1) of this section, beginning on the first
day of January of the year in which such certificate is granted or
approval is given.
(2) If a corporation, association, or trust is considered to
be operating a "home for the aged" pursuant to division (C)(1) of
this section, the corporation, association, or trust shall notify
the tax commissioner in writing upon the occurrence of any of the
following events:
(a) The corporation, association, or trust no longer intends
to complete the construction of, addition to, or modification of
the home or facility, to obtain the appropriate license for the
home or facility, or to commence operation of the home or facility
in accordance with the requirements of divisions (B)(1)(a) to (e)
of this section;
(b) The certificate of approval referred to in division
(C)(1) of this section expires, is revoked, or is otherwise
terminated prior to the completion of the construction of,
addition to, or modification of the home or facility;
(c) The license to operate the home or facility is not
granted by the director of health within one year following
completion of the construction of, addition to, or modification of
the home or facility;
(d) The license to operate the home or facility is not
granted by the director of health within four years following the
date upon which the certificate or approval referred to in
division (C)(1) of this section was granted or given;
(e) The home or facility is granted a license to operate as a
nursing home, residential care facility, or adult care facility.
(3) Upon the occurrence of any of the events referred to in
divisions (C)(2)(a), (b), (c), (d), and (e) of this section, the
corporation, association, or trust shall no longer be considered
to be operating a "home for the aged" pursuant to division (C)(1)
of this section, except that the tax commissioner, for good cause
shown and to the extent the commissioner considers appropriate,
may extend the time period specified in division (C)(2)(c) or (d)
of this section, or both. Nothing in division (C)(3) of this
section shall be construed to prevent a nursing home, residential
care facility, or adult care facility from qualifying as a "home
for the aged" if, upon proper application made pursuant to
division (B) of this section, it is found to meet the requirements
of divisions (A) and (B) of this section.
Section 2. That existing sections 9.231, 169.01, 1702.01,
1702.05, 1702.41, 1702.42, 1702.43, 1702.44, 1702.46, 1702.462,
2901.23, 3955.06, 3956.06, 4121.70, 4303.201, 4303.204, 4303.207,
5111.151, and 5701.13 and sections 1702.45, 1745.01, 1745.02, and
1745.04 of the Revised Code are hereby repealed.
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