Section 1. That sections 9.231, 169.01, 1702.01, 1702.05, | 12 |
1702.41, 1702.42, 1702.43, 1702.44, 1702.46, 2901.23, 3955.06, | 13 |
3956.06, 4121.70, 4303.201, 4303.204, 4303.207, 5111.151, and | 14 |
5701.13 be amended, and sections 1702.411, 1745.05, 1745.06, | 15 |
1745.07, 1745.08, 1745.09, 1745.10, 1745.11, 1745.12, 1745.13, | 16 |
1745.14, 1745.15, 1745.16, 1745.17, 1745.18, 1745.19, 1745.20, | 17 |
1745.21, 1745.22, 1745.23, 1745.24, 1745.25, 1745.26, 1745.27, | 18 |
1745.28, 1745.29, 1745.30, 1745.31, 1745.32, 1745.33, 1745.34, | 19 |
1745.35, 1745.36, 1745.37, 1745.38, 1745.39, 1745.40, 1745.41, | 20 |
1745.42, 1745.43, 1745.44, 1745.45, 1745.46, 1745.461, 1745.47, | 21 |
1745.48, 1745.49, 1745.50, 1745.51, 1745.52, 1745.53, 1745.54, | 22 |
1745.55, 1745.56, and 1745.57 of the Revised Code be enacted to | 23 |
read as follows: | 24 |
Sec. 9.231. (A)(1) Subject to divisions (A)(2) and (3) of | 25 |
this section, a governmental entity shall not disburse money | 26 |
totaling twenty-five thousand dollars or more to any person for | 27 |
the provision of services for the primary benefit of individuals | 28 |
or the public and not for the primary benefit of a governmental | 29 |
entity or the employees of a governmental entity, unless the | 30 |
contracting authority of the governmental entity first enters into | 31 |
a written contract with the person that is signed by the person or | 32 |
by an officer or agent of the person authorized to legally bind | 33 |
the person and that embodies all of the requirements and | 34 |
conditions set forth in sections 9.23 to 9.236 of the Revised | 35 |
Code. If the disbursement of money occurs over the course of a | 36 |
governmental entity's fiscal year, rather than in a lump sum, the | 37 |
contracting authority of the governmental entity shall enter into | 38 |
the written contract with the person at the point during the | 39 |
governmental entity's fiscal year that at least seventy-five | 40 |
thousand dollars has been disbursed by the governmental entity to | 41 |
the person. Thereafter, the contracting authority of the | 42 |
governmental entity shall enter into the written contract with the | 43 |
person at the beginning of the governmental entity's fiscal year, | 44 |
if, during the immediately preceding fiscal year, the governmental | 45 |
entity disbursed to that person an aggregate amount totaling at | 46 |
least seventy-five thousand dollars. | 47 |
(i) The amount received for the services is a set fee for | 60 |
each time the services are provided, is determined in accordance | 61 |
with a fixed rate per unit of time or per service, or is a | 62 |
capitated rate, and the fee or rate is established by competitive | 63 |
bidding or by a market rate survey of similar services provided in | 64 |
a defined market area. The market rate survey may be one conducted | 65 |
by or on behalf of the governmental entity or an independent | 66 |
survey accepted by the governmental entity as statistically valid | 67 |
and reliable. | 68 |
(c) Services, other than administrative or management | 122 |
services or any of the services described in division (B)(2)(a) or | 123 |
(b) of this section, that are commonly purchased by the public at | 124 |
an hourly rate or at a set fee for each time the services are | 125 |
provided, unless the services are performed for the benefit of | 126 |
children, persons who are eligible for the services by reason of | 127 |
advanced age, medical condition, or financial need, or persons who | 128 |
are confined in a detention facility as defined in section 2921.01 | 129 |
of the Revised Code, and the services are intended to help promote | 130 |
the health, safety, or welfare of those children or persons; | 131 |
(C) With respect to aan unincorporated nonprofit | 157 |
association, corporation, or organization established for the | 158 |
purpose of providing educational, technical, consulting, training, | 159 |
financial, or other services to its members in exchange for | 160 |
membership dues and other fees, any of the services provided to a | 161 |
member that is a governmental entity shall, for purposes of this | 162 |
section, be considered services "for the primary benefit of a | 163 |
governmental entity or the employees of a governmental entity. | 164 |
(b) Any payment or credit due to a business association from | 189 |
a business association representing sums payable to suppliers, or | 190 |
payment for services rendered, in the course of business, | 191 |
including, but not limited to, checks or memoranda, overpayments, | 192 |
unidentified remittances, nonrefunded overcharges, discounts, | 193 |
refunds, and rebates; | 194 |
(c) Any payment or credit received by a business association | 195 |
from a business association for tangible goods sold, or services | 196 |
performed, in the course of business, including, but not limited | 197 |
to, checks or memoranda, overpayments, unidentified remittances, | 198 |
nonrefunded overcharges, discounts, refunds, and rebates; | 199 |
(e) The records of such person do not indicate the last known | 223 |
address of the owner of the moneys, rights to moneys, or other | 224 |
intangible property and the entity originating or issuing the | 225 |
moneys, rights to moneys, or other intangible property is this | 226 |
state or any political subdivision of this state, or is | 227 |
incorporated, organized, created, or otherwise located in this | 228 |
state. Division (D)(1)(e) of this section applies to all moneys, | 229 |
rights to moneys, or other intangible property that is in the | 230 |
possession, custody, or control of such person on or after July | 231 |
22, 1994, whether the moneys, rights to moneys, or other | 232 |
intangible property becomes unclaimed funds prior to or on or | 233 |
after that date. | 234 |
(E) "Person" includes a natural person; corporation, whether | 241 |
for profit or not for profit; copartnership; unincorporated | 242 |
nonprofit association or organization; public authority; estate; | 243 |
trust; two or more persons having a joint or common interest; | 244 |
eleemosynary organization; fraternal or cooperative association; | 245 |
other legal or community entity; the United States government, | 246 |
including any district, territory, possession, officer, agency, | 247 |
department, authority, instrumentality, board, bureau, or court; | 248 |
or any state or political subdivision thereof, including any | 249 |
officer, agency, board, bureau, commission, division, department, | 250 |
authority, court, or instrumentality. | 251 |
(J) "Income-bearing account" means a time or savings account, | 264 |
whether or not evidenced by a certificate of deposit, or an | 265 |
investment account through which investments are made solely in | 266 |
obligations of the United States or its agencies or | 267 |
instrumentalities or guaranteed as to principal and interest by | 268 |
the United States or its agencies or instrumentalities, debt | 269 |
securities rated as investment grade by at least two nationally | 270 |
recognized rating services, debt securities which the director of | 271 |
commerce has determined to have been issued for the safety and | 272 |
welfare of the residents of this state, and equity interests in | 273 |
mutual funds that invest solely in some or all of the above-listed | 274 |
securities and involve no general liability, without regard to | 275 |
whether income earned on such accounts, securities, or interests | 276 |
is paid periodically or at the end of a term. | 277 |
(C) "Nonprofit corporation" means a domestic or foreign | 289 |
corporation that is formed otherwise than for the pecuniary gain | 290 |
or profit of, and whose net earnings or any part of them is not | 291 |
distributable to, its members, directors, officers, or other | 292 |
private persons, except that the payment of reasonable | 293 |
compensation for services rendered and the distribution of assets | 294 |
on dissolution as permitted by section 1702.49 of the Revised Code | 295 |
is not pecuniary gain or profit or distribution of net earnings. | 296 |
In a corporation all of whose members are nonprofit corporations, | 297 |
distribution to members does not deprive it of the status of a | 298 |
nonprofit corporation. | 299 |
(E) "Articles" includes original articles of incorporation, | 305 |
agreements of merger or consolidation if and only to the extent | 306 |
that articles of incorporation are adopted or amended in the | 307 |
agreements, amended articles, and amendments to any of these, and, | 308 |
in the case of a corporation created before September 1, 1851, the | 309 |
special charter and any amendments to it made by special act of | 310 |
the general assembly or pursuant to general law. | 311 |
(P) "Public benefit corporation" means a corporation that is | 358 |
recognized as exempt from federal income taxation under section | 359 |
501(c)(3) of the "Internal Revenue Code of 1986," 100 Stat. 2085, | 360 |
26 U.S.C. 1, as amended, or is organized for a public or | 361 |
charitable purpose and that upon dissolution must distribute its | 362 |
assets to a public benefit corporation, the United States, a state | 363 |
or any political subdivision of a state, or a person that is | 364 |
recognized as exempt from federal income taxation under section | 365 |
501(c)(3) of the "Internal Revenue Code of 1986," as amended. | 366 |
"Public benefit corporation" does not include a nonprofit | 367 |
corporation that is organized by one or more municipal | 368 |
corporations to further a public purpose that is not a charitable | 369 |
purpose. | 370 |
(Q) "Authorized communications equipment" means any | 371 |
communications equipment that provides a transmission, including, | 372 |
but not limited to, by telephone, telecopy, or any electronic | 373 |
means, from which it can be determined that the transmission was | 374 |
authorized by, and accurately reflects the intention of, the | 375 |
member or director involved and, with respect to meetings, allows | 376 |
all persons participating in the meeting to contemporaneously | 377 |
communicate with each other. | 378 |
(S) "Public benefit entity" means any entity that is | 390 |
recognized as exempt from federal income taxation under section | 391 |
501(c)(3) of the "Internal Revenue Code of 1986," 100 Stat. 2085, | 392 |
26 U.S.C. 1, as amended, or is organized for a public or | 393 |
charitable purpose and that upon dissolution must distribute its | 394 |
assets to a public benefit entity, the United States, a state or | 395 |
any political subdivision of a state, or a person that is | 396 |
recognized as exempt from federal income taxation under section | 397 |
501(c)(3) of the "Internal Revenue Code of 1986," 100 Stat. 2085, | 398 |
26 U.S.C. 1, as amended. "Public benefit entity" does not include | 399 |
an entity that is organized by one or more municipal corporations | 400 |
to further a public purpose that is not a charitable purpose.
| 401 |
(C) A corporation may apply to the secretary of state for | 439 |
authorization to use a name that is not distinguishable upon the | 440 |
secretary of state's records from the name of any other | 441 |
corporation, any limited liability company, limited liability | 442 |
partnership, or limited partnership, or from a registered trade | 443 |
name, if there also is filed in the office of the secretary of | 444 |
state, on a form prescribed by the secretary of state, the consent | 445 |
of the other entity, or, in the case of a registered trade name, | 446 |
the person in whose name is registered the exclusive right to use | 447 |
the name, which consent is evidenced in a writing signed by any | 448 |
authorized officer or authorized representative of the other | 449 |
entity or person. | 450 |
(D) In case of judicial sale or judicial transfer, by sale or | 451 |
transfer of good will or otherwise, of the right to use the name | 452 |
of a nonprofit corporation or business corporation, whether that | 453 |
of a domestic corporation or of a foreign corporation authorized | 454 |
to exercise its corporate privileges in this state or to do | 455 |
business in this state, the secretary of state, at the instance of | 456 |
the purchaser or transferee of such right, shall accept for filing | 457 |
articles of a corporation with a name the same as or similar to | 458 |
the name of such other corporation, if there also is filed in the | 459 |
office of the secretary of state a certified copy of the decree or | 460 |
order of court confirming or otherwise evidencing the purchase or | 461 |
transfer. | 462 |
(E) Any person who wishes to reserve a name for a proposed | 463 |
new corporation, or any corporation intending to change its name, | 464 |
may submit to the secretary of state a written application, on a | 465 |
form prescribed by the secretary of state, for the exclusive right | 466 |
to use a specified name as the name of a corporation. If the | 467 |
secretary of state finds that, under this section, the specified | 468 |
name is available for such use, the secretary of state shall file | 469 |
such application, and, from the date of such filing, such | 470 |
applicant shall have the exclusive right for one hundred eighty | 471 |
days to use the specified name as the name of a corporation, | 472 |
counting the date of such filing as the first of the one hundred | 473 |
eighty days. The right so obtained may be transferred by the | 474 |
applicant or other holder of the right by the filing in the office | 475 |
of the secretary of state of a written transfer, on a form | 476 |
prescribed by the secretary of state, stating the name and address | 477 |
of the transferee. | 478 |
Sec. 1702.41. (A)(1) Any two or more corporations may merge | 479 |
into a single corporation which shall be one of the constituent | 480 |
corporations, or may consolidate into a single corporation which | 481 |
shall be a new corporation to be formed by the consolidation | 482 |
Pursuant to an agreement of merger, a domestic corporation and one | 483 |
or more additional domestic or foreign entities may be merged into | 484 |
a surviving domestic corporation. Pursuant to an agreement of | 485 |
consolidation, one or more domestic or foreign entities may be | 486 |
consolidated into a new domestic corporation. If any constituent | 487 |
entity is formed or organized under the laws of any state other | 488 |
than this state or under any chapter of the Revised Code other | 489 |
than this chapter, the merger or consolidation also must be | 490 |
permitted by the chapter of the Revised Code under which each | 491 |
domestic constituent entity exists and by the laws under which | 492 |
each foreign constituent entity exists. | 493 |
(2) To effect sucha merger or consolidation under this | 494 |
section, the directors of each constituent domestic corporation | 495 |
shall approve an agreement of merger or consolidation to be signed | 496 |
by the chairperson of the board of directors, the president, or a | 497 |
vice-president and by the secretary or an assistant secretary, | 498 |
which. The agreement of merger or consolidation shall be approved | 499 |
or otherwise authorized by or on behalf of each other constituent | 500 |
entity in accordance with the laws under which it exists.
| 501 |
(B)(1) Without the prior approval ofA merger or | 550 |
consolidation in which a domestic public benefit corporation is | 551 |
one of the constituent entities shall be approved by the court of | 552 |
common pleas of the county in this state in which the principal | 553 |
office of the public benefit corporation is located, in a | 554 |
proceeding of which the attorney general's charitable law section | 555 |
has been given written notice by certified mail within three days | 556 |
of the initiation of the proceeding, and in which proceeding the | 557 |
attorney general may intervene as of right, a public benefit | 558 |
corporation may merge or consolidate only with any of the | 559 |
following. No approval by the court under division (B)(1) of this | 560 |
section is required if either of the following applies: | 561 |
(i) On or prior to the effective date of the merger or | 576 |
consolidation, assets with a value equal to the greater of the | 577 |
fair market value of the net tangible and intangible assets, | 578 |
including goodwill, of the domestic public benefit corporation or | 579 |
the fair market value of the domestic public benefit corporation | 580 |
if it is to be operated as a business concern, are transferred or | 581 |
conveyed to one or more persons that would have received its | 582 |
assets under section 1702.49 of the Revised Code had it | 583 |
voluntarily dissolved. | 584 |
(iii) The merger or consolidation is approved by a majority | 590 |
of directors of the domestic public benefit corporation who will | 591 |
not receive any financial or other benefit, directly or | 592 |
indirectly, as a result of the merger or consolidation or by | 593 |
agreement, and who are not and will not as a result of the merger | 594 |
or consolidation become members, partners, or other owners, | 595 |
however denominated, of, shareholders in, ordirectors, officers, | 596 |
managers, employees, agents, or other representatives of, or | 597 |
consultants ofto, the surviving or new business corporation or | 598 |
mutual benefit corporationentity. | 599 |
(2) At least twenty days before consummation of any merger or | 600 |
consolidation of a domestic public benefit corporation pursuant to | 601 |
division (B)(1)(d)(b) of this section, written notice, including a | 602 |
copy of the proposed plan of merger or consolidation, shall be | 603 |
delivered to the attorney general's charitable law section. The | 604 |
attorney general's charitable law section may review a proposed | 605 |
merger or consolidation of a domestic public benefit corporation | 606 |
under division (B)(1)(d)(b) of this section. The attorney general | 607 |
may require, pursuant to section 109.24 of the Revised Code, the | 608 |
production of the documents necessary for review of a proposed | 609 |
merger or consolidation under division (B)(1)(d)(b) of this | 610 |
section. The attorney general may retain, at the expense of the | 611 |
domestic public benefit corporation, one or more experts, | 612 |
including an investment banker, actuary, appraiser, certified | 613 |
public accountant, or other expert, that the attorney general | 614 |
considers reasonably necessary to provide assistance in reviewing | 615 |
a proposed merger or consolidation under division (B)(1)(d)(b) of | 616 |
this section. The attorney general may extend the date of any | 617 |
merger or consolidation of a domestic public benefit corporation | 618 |
under division (B)(1)(d)(b) of this section for a period not to | 619 |
exceed sixty days and shall provide notice of that extension to | 620 |
the domestic public benefit corporation. The notice shall set | 621 |
forth the reasons necessitating the extension. | 622 |
(3) WithoutNo member, other than a member that is a public | 623 |
benefit entity, or director of a domestic public benefit | 624 |
corporation in that person's capacity as a member or director may | 625 |
receive or keep anything as a result of a merger or consolidation | 626 |
other than membership or directorship in the surviving or new | 627 |
public benefit corporation, without the prior written consent of | 628 |
the attorney general or of the court of common pleas of the county | 629 |
in this state in which the principal office of the domestic public | 630 |
benefit corporation is located, in a proceeding in which the | 631 |
attorney general's charitable law section has been given written | 632 |
notice by certified mail within three days of the initiation of | 633 |
the proceeding, and in which proceeding the attorney general may | 634 |
intervene as of right, no member or director of a public benefit | 635 |
corporation in that person's capacity as a member or director may | 636 |
receive or keep anything as a result of a merger of consolidation | 637 |
other than membership or directorship in the surviving or new | 638 |
public benefit corporation. The court shall approve the | 639 |
transaction if it is in the public interest. | 640 |
(4) The attorney general may institute a civil action to | 641 |
enforce the requirements of divisions (B)(1), (2), and (3) of this | 642 |
section in the court of common pleas of the county in this state | 643 |
in which the principal office of the domestic public benefit | 644 |
corporation is located or in the Franklin county court of common | 645 |
pleas. In addition to any civil remedies that may exist under | 646 |
common law or the Revised Code, a court may rescind the | 647 |
transaction or grant injunctive relief or impose any combination | 648 |
of these remedies. | 649 |
(C) A corporation may be the surviving or new entity in a | 650 |
merger or consolidation with one or more business corporations, or | 651 |
a corporation may merge or consolidate into one or more business | 652 |
corporations with a business corporation, a mutual benefit | 653 |
corporation, or a foreign corporation as the surviving or new | 654 |
entity, provided that the corporation complies with the provisions | 655 |
of this section and sections 1702.42 and 1702.43 of the Revised | 656 |
Code, as applicable to the corporation, and that the business | 657 |
corporation complies with the provisions of section 1701.781 or | 658 |
1701.791 of the Revised Code, as applicable to the business | 659 |
corporation. | 660 |
Sec. 1702.411. (A)(1) Pursuant to an agreement of merger | 661 |
between the constituent entities as provided in this section, a | 662 |
domestic corporation and, if so provided, one or more additional | 663 |
domestic or foreign entities, may be merged into a surviving | 664 |
entity other than a domestic corporation. Pursuant to an agreement | 665 |
of consolidation, a domestic corporation together with one or more | 666 |
additional domestic or foreign entities may be consolidated into a | 667 |
new entity other than a domestic corporation, to be formed by that | 668 |
consolidation. The merger or consolidation must be permitted by | 669 |
the chapter of the Revised Code under which each domestic | 670 |
constituent entity exists and by the laws under which each foreign | 671 |
constituent entity exists. The name of the surviving or new entity | 672 |
may be the same as or similar to that of any constituent entity. | 673 |
(2) To effect a merger or consolidation under this section, | 674 |
the directors of each constituent domestic corporation shall | 675 |
approve an agreement of merger or consolidation to be signed by | 676 |
the chairperson of the board of directors, the president, or a | 677 |
vice-president and by the secretary or an assistant secretary. The | 678 |
agreement of merger or consolidation shall be approved or | 679 |
otherwise authorized by or on behalf of each other constituent | 680 |
entity in accordance with the laws under which it exists. | 681 |
(h) If the surviving or new entity is a foreign corporation | 714 |
that desires to transact business in this state as a foreign | 715 |
corporation, a statement to that effect, together with a statement | 716 |
regarding the appointment of a statutory agent and service of any | 717 |
process, notice, or demand upon that statutory agent or the | 718 |
secretary of state, as required when a foreign corporation applies | 719 |
for a license to transact business in this state; | 720 |
(B)(1) A merger or consolidation in which a domestic public | 744 |
benefit corporation is one of the constituent entities shall be | 745 |
approved by the court of common pleas of the county in this state | 746 |
in which the principal office of the domestic public benefit | 747 |
corporation is located in a proceeding of which the attorney | 748 |
general's charitable law section has been given written notice by | 749 |
certified mail within three days of the initiation of the | 750 |
proceeding and in which proceeding the attorney general may | 751 |
intervene as of right. No approval by the court under division | 752 |
(B)(1) of this section is required if either of the following | 753 |
applies: | 754 |
(i) On or prior to the effective date of the merger or | 762 |
consolidation, assets with a value equal to the greater of the | 763 |
fair market value of the net tangible and intangible assets, | 764 |
including goodwill, of the domestic public benefit corporation or | 765 |
the fair market value of the domestic public benefit corporation | 766 |
if it is to be operated as a business concern are transferred or | 767 |
conveyed to one or more persons that would have received its | 768 |
assets under section 1702.49 of the Revised Code had it | 769 |
voluntarily dissolved. | 770 |
(iii) The merger or consolidation is approved by a majority | 776 |
of directors of the domestic public benefit corporation who will | 777 |
not receive any financial or other benefit, directly or | 778 |
indirectly, as a result of the merger or consolidation or by | 779 |
agreement, and who are not and will not as a result of the merger | 780 |
or consolidation become members, partners, or other owners, | 781 |
however denominated, of, shareholders in, directors, officers, | 782 |
managers, employees, agents, or other representatives of, or | 783 |
consultants to, the surviving or new entity. | 784 |
(2) At least twenty days before consummation of any merger or | 785 |
consolidation of a domestic public benefit corporation pursuant to | 786 |
division (B)(1)(b) of this section, written notice, including a | 787 |
copy of the proposed plan of merger or consolidation, shall be | 788 |
delivered to the attorney general's charitable law section. The | 789 |
attorney general's charitable law section may review a proposed | 790 |
merger or consolidation of a domestic public benefit corporation | 791 |
under division (B)(1)(b) of this section. The attorney general may | 792 |
require pursuant to section 109.24 of the Revised Code the | 793 |
production of the documents necessary for review of a proposed | 794 |
merger or consolidation under division (B)(1)(b) of this section. | 795 |
The attorney general may retain at the expense of the domestic | 796 |
public benefit corporation one or more experts, including an | 797 |
investment banker, actuary, appraiser, certified public | 798 |
accountant, or other expert, that the attorney general considers | 799 |
reasonably necessary to provide assistance in reviewing a proposed | 800 |
merger or consolidation under division (B)(1)(b) of this section. | 801 |
The attorney general may extend the date of any merger or | 802 |
consolidation of a domestic public benefit corporation under | 803 |
division (B)(1)(b) of this section for a period not to exceed | 804 |
sixty days and shall provide notice of that extension to the | 805 |
domestic public benefit corporation. The notice shall set forth | 806 |
the reasons necessitating the extension. | 807 |
(3) No member, other than a member that is a public benefit | 808 |
entity, or director of a domestic public benefit corporation in | 809 |
that person's capacity as a member or director may receive or keep | 810 |
anything as a result of a merger or consolidation other than | 811 |
membership or directorship in the surviving or new public benefit | 812 |
entity without the prior written consent of the attorney general | 813 |
or of the court of common pleas of the county in this state in | 814 |
which the principal office of the domestic public benefit | 815 |
corporation is located that is obtained in a proceeding in which | 816 |
the attorney general's charitable law section has been given | 817 |
written notice by certified mail within three days of the | 818 |
initiation of the proceeding and in which proceeding the attorney | 819 |
general may intervene as of right. The court shall approve the | 820 |
transaction if it is in the public interest. | 821 |
(4) The attorney general may institute a civil action to | 822 |
enforce the requirements of divisions (B)(1), (2), and (3) of this | 823 |
section in the court of common pleas of the county in this state | 824 |
in which the principal office of the domestic public benefit | 825 |
corporation is located or in the Franklin county court of common | 826 |
pleas. In addition to any civil remedies that may exist under | 827 |
common law or the Revised Code, a court may rescind the | 828 |
transaction or grant injunctive relief or impose any combination | 829 |
of these remedies. | 830 |
Sec. 1702.42. (A) The directors of each constituent domestic | 831 |
corporation, upon approving an agreement of merger or | 832 |
consolidation, shall direct that the agreement be submitted to the | 833 |
voting members entitled to vote on it at a meeting of voting | 834 |
members of suchthat corporation held for that purpose, and | 835 |
notice. Notice of the meeting shall be given to all members of the | 836 |
constituent domestic corporation entitled to vote at the meeting. | 837 |
The notice shall be accompanied by a copy or summary of the | 838 |
material terms of the agreement. | 839 |
(B)(1) At each meeting described in division (A) of this | 840 |
section, a vote of the members shall be taken on the proposed | 841 |
agreement. In order to be adopted, the agreement (, including any | 842 |
amendments or additions to the agreement proposed at each such | 843 |
meeting) must, shall receive the affirmative vote of a majority of | 844 |
the voting members of each constituent domestic corporation | 845 |
present at that meeting in person, by the use of authorized | 846 |
communications equipment, by mail, or, if permitted, by proxy if a | 847 |
quorum is present, or, if the articles or the regulations of that | 848 |
corporation provide or permit, the affirmative vote of a greater | 849 |
or lesser proportion or number of the voting members, and the | 850 |
affirmative vote of the voting members of any particular class | 851 |
that is required by the articles or the regulations of suchthat | 852 |
corporation. If the agreement would effect or authorize any | 853 |
particular corporate action that, under any applicable provision | 854 |
of law or under the existing articles of one or more of the | 855 |
constituent corporations, could be effected or authorized only by | 856 |
or pursuant to a specified vote of votingthe members, the | 857 |
agreement (, including any amendments or additions to the | 858 |
agreement proposed at each such meeting) in order to, shall be | 859 |
adopted must receiveby the same affirmative vote so specifiedas | 860 |
would be required for that action. | 861 |
(C) At any time prior to the filing of the agreement, the | 867 |
merger or consolidation may be abandoned by the directors of one | 868 |
or more of the constituent domestic corporations or the comparable | 869 |
representatives of any other constituent entity, if the power of | 870 |
abandonment is conferred upon those directors either by the | 871 |
agreement or by the same vote
of voting members of each of the | 872 |
constituent corporations and at the same meetings as those | 873 |
referred to in division (B) of this section or at subsequent | 874 |
meetingsor action as is required to adopt that agreement. | 875 |
Sec. 1702.43. (A) Upon adoption by each constituent | 876 |
corporationentity of an agreement of merger or consolidation | 877 |
pursuant to section
1702.421702.41 or 1702.451702.411 of the | 878 |
Revised Code, a certificate of merger or consolidation, signed by | 879 |
any authorized representative of each constituent corporation | 880 |
entity, shall be filed with the secretary of state. The | 881 |
certificate shall be on a form prescribed by the secretary of | 882 |
state and shall set forth only the information required by this | 883 |
section. | 884 |
(4) If the surviving or new entity is a foreign entity that | 926 |
desires to transact business in this state as a foreign | 927 |
corporation, limited liability company, limited partnership, or | 928 |
unincorporated association, the certificate of merger or | 929 |
consolidation shall
contain a statement to that effect and a | 930 |
statement with respect to the appointment of the statutory agent | 931 |
and with respect to the consent to service of any process, notice, | 932 |
or demand upon that statutory agent or the secretary of state, as | 933 |
required when a foreign corporation applies for a certificate | 934 |
authorizing it to transact business in this statebe accompanied | 935 |
by the information required by division (A)(3)(h), (i), (j), or | 936 |
(k) of section 1702.411 of the Revised Code, whichever is | 937 |
applicable. | 938 |
(5) If a domestic or foreign corporation licensed to transact | 939 |
business in this state is a constituent entity and the surviving | 940 |
or new entity resulting from the merger or consolidation is not a | 941 |
domestic or foreign corporation that is to be licensed to transact | 942 |
business in this state, the certificate of merger or consolidation | 943 |
shall be accompanied by the affidavits, receipts, certificates, or | 944 |
other evidence required by division (G) of section 1702.47 of the | 945 |
Revised Code, with respect to each domestic corporation, and by | 946 |
the affidavits, receipts, certificates, or other evidence required | 947 |
by division (C) or (D) of section 1703.17 of the Revised Code, | 948 |
with respect to each foreign constituent corporation licensed to | 949 |
transact business in this state. | 950 |
(D) The secretary of state shall furnish, upon request and | 963 |
payment of the fee specified in division (D) of section 111.16 of | 964 |
the Revised Code, a certificate setting forth the name and form of | 965 |
each constituent entity and the state under whose laws each | 966 |
constituent entity existed prior to the merger or consolidation, | 967 |
the name and form of the surviving or new entity and the state | 968 |
under whose laws the surviving entity exists or the new entity is | 969 |
to exist, the date of filing of the certificate of merger or | 970 |
consolidation with the secretary of state, and the effective date | 971 |
of the merger or consolidation. The certificate of the secretary | 972 |
of state or a copy of the merger or consolidation certified by the | 973 |
secretary of state may be filed for record in the office of the | 974 |
recorder of any county in this state and, if filed, shall be | 975 |
recorded in the records of deeds for that county. For that | 976 |
recording, the county recorder shall charge and collect the same | 977 |
fee as in the case of deeds. | 978 |
(A)(1) The separate existence of all theeach constituent | 981 |
corporations, exceptentity other than the surviving or new | 982 |
corporation,entity in a merger shall cease, except that, whenever | 983 |
a conveyance, assignment, transfer, deed, or other instrument, or | 984 |
act, is necessary to vest property or rights in the surviving or | 985 |
new corporationentity, the officers, general partners, or other | 986 |
authorized representatives of the respective constituent | 987 |
corporationentities shall execute, acknowledge, and deliver such | 988 |
those instruments, and do suchthose acts, and for such. For these | 989 |
purposes, the existence of the constituent corporationsentities | 990 |
and the authority of their respective officers and, directors | 991 |
shall be deemed, general partners, or other authorized | 992 |
representatives is continued notwithstanding the merger or | 993 |
consolidation; | 994 |
(2) In the case of a merger in which the surviving entity is | 1006 |
a domestic corporation, the articles of the domestic surviving | 1007 |
corporation in effect immediately prior to the time the merger | 1008 |
becomes effective shall continue as its articles after the merger | 1009 |
except as otherwise provided in the agreement of merger. In the | 1010 |
case of a consolidation, the new entity exists when the | 1011 |
consolidation becomes effective, and, if it is a domestic | 1012 |
corporation, the articles contained in or provided for in the | 1013 |
agreement of consolidation shall be its original articles. | 1014 |
(3) The surviving or new corporation shall thereupon and | 1015 |
thereafter possessentity possesses all assets and property of | 1016 |
every description and every interest in the assets and property, | 1017 |
wherever located, the rights, privileges, immunities, powers, | 1018 |
franchises, and authority, as well of a public as well as of a | 1019 |
private nature, of each of the constituent corporations; and all | 1020 |
property of every description, and every interest thereinentity, | 1021 |
and all obligations, of or belonging to or due to each of the | 1022 |
constituent
corporations, shall thereafter be taken and deemed to | 1023 |
be transferred to andentity, all of which are vested in the | 1024 |
surviving or new corporationentity without further act or deed; | 1025 |
and any. Any right or interest in respect to any past or future | 1026 |
devise, bequest, conditional gift, or trust, property, or fund | 1027 |
restricted to particular uses, when vested in or claimed by such | 1028 |
the surviving or new corporationentity as a result of suchthe | 1029 |
merger or consolidation, shall belong to it as a continuation | 1030 |
without interruption of the existence and identity of the | 1031 |
constituent organizationentity originally named as taker or | 1032 |
beneficiary; and. The surviving or new entity possesses title to | 1033 |
any real estate, or any interest
therein,in the real estate | 1034 |
vested in any of the constituent corporationsentities. Title to | 1035 |
any real estate or any interest in the real estate vested in any | 1036 |
constituent entity shall not revert or in any way be impaired by | 1037 |
reason of suchthe merger or consolidation;. | 1038 |
(F)(4) The surviving or new corporation shall thenceforth be | 1042 |
entity is liable for all of the obligations of each of the | 1043 |
constituent
corporations; and anyentity. Any claim existing or | 1044 |
any action or proceeding pending by or against any of the | 1045 |
constituent corporationsentity may be prosecuted to judgment, | 1046 |
with right of appeal as in other cases, as if suchthe merger or | 1047 |
consolidation had not taken place, or the surviving or new | 1048 |
corporationentity may be substituted in its place;. | 1049 |
(H) The agreement shall operate as amended articles in the | 1056 |
case of a merger and as original articles in the case of | 1057 |
consolidation. If a general partner of a constituent partnership | 1058 |
is not a general partner of the surviving entity or the new entity | 1059 |
resulting from the merger or consolidation, the former general | 1060 |
partner has no liability for any obligation incurred after the | 1061 |
merger or consolidation except to the extent that a former | 1062 |
creditor of the constituent partnership in which the former | 1063 |
general partner was a partner extends credit to the surviving or | 1064 |
new entity reasonably believing that the former general partner | 1065 |
continued as a general partner of the surviving or new entity. | 1066 |
(C) In the case of a merger of a domestic constituent | 1071 |
corporation into a foreign surviving corporation, limited | 1072 |
liability company, limited partnership, or unincorporated | 1073 |
association that is not licensed or registered to transact | 1074 |
business in this state or in the case of a consolidation of a | 1075 |
domestic constituent corporation into a new foreign corporation, | 1076 |
limited liability company, limited partnership, or unincorporated | 1077 |
association, if the surviving or new entity intends to transact | 1078 |
business in this state and the certificate of merger or | 1079 |
consolidation is accompanied by the information described in | 1080 |
division (A)(4) of section 1702.43 of the Revised Code, the | 1081 |
surviving or new entity shall be considered on the effective date | 1082 |
of the merger or consolidation to have complied with the | 1083 |
requirements for procuring a license or for registering to | 1084 |
transact business in this state as a foreign corporation, limited | 1085 |
liability company, limited partnership, or unincorporated | 1086 |
association, as the case may be. In that case, a copy of the | 1087 |
certificate of merger or consolidation certified by the secretary | 1088 |
of state constitutes the license certificate prescribed by the | 1089 |
laws of this state for a foreign corporation transacting business | 1090 |
in this state or the application for registration prescribed for a | 1091 |
foreign limited partnership, limited liability company, or | 1092 |
unincorporated association. | 1093 |
(C) If the surviving or new corporation is to be a foreign | 1128 |
corporation and if the certificate states that the surviving or | 1129 |
new corporation desires to exercise its corporate privileges in | 1130 |
this state as a foreign corporation in a continual course of | 1131 |
transactions, the surviving or new corporation shall, when the | 1132 |
merger or consolidation becomes effective, be deemed to have | 1133 |
complied with the requirements for procuring a certificate | 1134 |
authorizing it to do so, and a copy of the certificate of merger | 1135 |
or consolidation, certified by the secretary of state of this | 1136 |
state, shall be considered and accepted as the license certificate | 1137 |
prescribed by the laws of this state for a foreign corporation | 1138 |
exercising its corporate privileges in this state in a continual | 1139 |
course of transactions. | 1140 |
(A) "Authorized communications equipment" means any | 1143 |
communications equipment that provides a transmission, including, | 1144 |
but not limited to, by telephone, telecopy, or any electronic | 1145 |
means, from which it can be determined that the transmission was | 1146 |
authorized by, and accurately reflects the intention of, the | 1147 |
member or manager involved and, with respect to meetings, allows | 1148 |
all persons participating in the meeting to contemporaneously | 1149 |
communicate with each other. | 1150 |
(D) "Governing principles" means all agreements, whether | 1170 |
oral, in a record, or implied from its established practices, or | 1171 |
any combination of them, that govern the purpose or operation of | 1172 |
an unincorporated nonprofit association and the rights and | 1173 |
obligations of its members and managers. "Governing principles" | 1174 |
includes any amendment or restatement of the agreements | 1175 |
constituting the governing principles. | 1176 |
(I) "Person" means an individual, corporation, business | 1192 |
trust, statutory entity trust, estate, trust, partnership, limited | 1193 |
liability company, cooperative, association, joint venture, public | 1194 |
corporation, government or governmental subdivision, agency, or | 1195 |
instrumentality, two or more persons having a joint or common | 1196 |
interest, or any other legal or commercial entity. | 1197 |
(J) "Public benefit association" means an unincorporated | 1198 |
nonprofit association that is exempt from federal income taxation | 1199 |
under section 501(c)(3) of the Internal Revenue Code or is | 1200 |
organized for a public or charitable purpose and that upon | 1201 |
dissolution must distribute its assets to a public benefit | 1202 |
association, the United States, a state or any political | 1203 |
subdivision of a state, or a person that is recognized as exempt | 1204 |
from federal income taxation under section 501(c)(3) of the | 1205 |
Internal Revenue Code. | 1206 |
(K) "Public benefit entity" means an entity that is | 1207 |
recognized as exempt from federal income taxation under section | 1208 |
501(c)(3) of the Internal Revenue Code or is organized for a | 1209 |
public or charitable purpose and that upon dissolution must | 1210 |
distribute its assets to a public benefit entity, the United | 1211 |
States, a state or any political subdivision of a state, or a | 1212 |
person that is recognized as exempt from federal income taxation | 1213 |
under section 501(c)(3) of the Internal Revenue Code. "Public | 1214 |
benefit entity" does not include an entity that is organized by | 1215 |
one or more municipal corporations to further a public purpose | 1216 |
that is not a charitable purpose. | 1217 |
Sec. 1745.09. An unincorporated nonprofit association may | 1287 |
acquire, hold, encumber, or transfer in its name an estate or | 1288 |
interest in real or personal property. An unincorporated nonprofit | 1289 |
association may be a legatee, a devisee, or a beneficiary of a | 1290 |
trust or contract. All property acquired by an unincorporated | 1291 |
nonprofit association by purchase, gift, devise, bequest, or | 1292 |
otherwise shall be the absolute property of the association, | 1293 |
unless it is otherwise specified in writing at the time of | 1294 |
acquiring that property. | 1295 |
Sec. 1745.10. A debt, obligation, or other liability of an | 1296 |
unincorporated nonprofit association, whether arising in contract, | 1297 |
tort, or otherwise, is solely the debt, obligation, or other | 1298 |
liability of the association and does not become the debt, | 1299 |
obligation, or other liability of a member or manager solely | 1300 |
because the member acts as a member or the manager acts as a | 1301 |
manager. A person's status as a member or a manager of an | 1302 |
unincorporated nonprofit association does not prevent or restrict | 1303 |
any law other than this chapter from imposing liability on the | 1304 |
person or association because of the person's conduct. | 1305 |
Sec. 1745.12. All assets, property, funds, and rights or | 1312 |
interests, at law or in equity, of any unincorporated nonprofit | 1313 |
association shall be subject to judgment, execution, and other | 1314 |
process. A money judgment against an unincorporated nonprofit | 1315 |
association shall be enforced only against the association as an | 1316 |
entity and shall not be enforceable against the property of any | 1317 |
manager or member of the association. | 1318 |
Sec. 1745.13. (A) An unincorporated nonprofit association | 1319 |
may file in the office of the secretary of state a statement | 1320 |
appointing an agent authorized to receive service of process. The | 1321 |
statement appointing an agent shall set forth the name of the | 1322 |
unincorporated nonprofit association and the name and address in | 1323 |
this state of the agent, including the street and number or other | 1324 |
particular description, and shall otherwise be in the form that | 1325 |
the secretary of state prescribes. The secretary of state shall | 1326 |
keep a record of the names of all unincorporated nonprofit | 1327 |
associations that have filed a statement appointing an agent | 1328 |
authorized to receive service of process and the names and | 1329 |
addresses of their respective agents. | 1330 |
(B) A statement appointing an agent authorized to receive | 1331 |
service of process under division (A) of this section shall be | 1332 |
signed by a person authorized to manage the affairs of the | 1333 |
unincorporated nonprofit association. The statement also shall be | 1334 |
signed by the person appointed as agent who accepts the | 1335 |
appointment. The appointed agent may resign by filing with the | 1336 |
secretary of state, on a form prescribed by the secretary of | 1337 |
state, a written notice to that effect that is signed by the agent | 1338 |
and by sending a copy of the notice to the association at the | 1339 |
current or last known address of its principal office on or prior | 1340 |
to the date that the notice is filed with the secretary of state. | 1341 |
Sec. 1745.19. (A) Unless another form of notice is required | 1383 |
by the governing principles of an unincorporated nonprofit | 1384 |
association or by applicable law, any notice required by this | 1385 |
chapter shall be in writing and shall be delivered personally or | 1386 |
sent by telegram, by the use of authorized communications | 1387 |
equipment, or by United States mail, express mail, or courier | 1388 |
service, with postage or fees prepaid. | 1389 |
(B) In computing the period of time for the giving of a | 1390 |
notice required or permitted under this chapter or under the | 1391 |
governing principles of an unincorporated nonprofit association or | 1392 |
a resolution of its members or managers, the day on which the | 1393 |
notice is given shall be excluded, and the day when the act for | 1394 |
which the notice is given is to be done shall be included, unless | 1395 |
the instrument calling for the notice provides otherwise. If | 1396 |
notice is given by personal delivery or transmitted by telegram or | 1397 |
by the use of authorized communications equipment, the notice | 1398 |
shall be considered to have been given when it is delivered or | 1399 |
transmitted. If notice is sent by United States mail, express | 1400 |
mail, or courier service, the notice shall be considered to have | 1401 |
been given when it is deposited in the mail or with the courier | 1402 |
service. | 1403 |
(C) A written notice or report delivered as part of a | 1404 |
newsletter, magazine, or other publication regularly sent to | 1405 |
members shall constitute a written notice or report if addressed | 1406 |
or delivered to the member's address shown in the unincorporated | 1407 |
nonprofit association's current list of members, or, in the case | 1408 |
of members who are residents of the same household and who have | 1409 |
the same address in the association's current list of members, if | 1410 |
addressed or delivered to one of those members at the address | 1411 |
appearing on the association's current list of members. | 1412 |
(C) Unless the governing principles provide otherwise, the | 1458 |
voting members and proxyholders who are not physically present at | 1459 |
a meeting of voting members may attend the meeting by the use of | 1460 |
authorized communications equipment that enables the voting | 1461 |
members and proxyholders an opportunity to participate in the | 1462 |
meeting and to vote on matters submitted to the voting members, | 1463 |
including an opportunity to read or hear the proceedings of the | 1464 |
meeting, participate in the proceedings, and contemporaneously | 1465 |
communicate with the persons who are physically present at the | 1466 |
meeting. Any voting member who uses authorized communications | 1467 |
equipment under this division is considered to be present in | 1468 |
person at the meeting whether the meeting is held at a designated | 1469 |
place or solely by means of authorized communications equipment. | 1470 |
The members or managers may adopt procedures and guidelines for | 1471 |
the use of authorized communications equipment in connection with | 1472 |
a meeting of voting members to permit the unincorporated nonprofit | 1473 |
association to verify that a person is a voting member or | 1474 |
proxyholder and to maintain a record of any vote or other action | 1475 |
taken at the meeting. | 1476 |
Sec. 1745.22. Unless the governing principles provide for | 1477 |
notice of meetings otherwise than as provided in this section, | 1478 |
written notice stating the place, if any, and the time of a | 1479 |
meeting, the means, if any, by which the voting members can be | 1480 |
present and vote at the meeting through the use of authorized | 1481 |
communications equipment, and in case of a special meeting the | 1482 |
purpose or purposes for which the meeting is called, shall be | 1483 |
given in the manner described in section 1745.19 of the Revised | 1484 |
Code, to each member entitled to notice of the meeting not less | 1485 |
than ten and not more than sixty days before the date of the | 1486 |
meeting. The notice of the meeting shall be given by or at the | 1487 |
direction of the president, the secretary, or any other person | 1488 |
required or permitted by the governing principles to give notice | 1489 |
or by the officers or persons calling the meeting. If mailed or | 1490 |
sent by overnight delivery service, that notice shall be addressed | 1491 |
to the member at the member's address as it appears on the records | 1492 |
of the unincorporated nonprofit association. If sent by means of | 1493 |
authorized communications equipment, that notice shall be sent to | 1494 |
the address furnished by the voting member for transmissions by | 1495 |
authorized communications equipment. Notice of adjournment of a | 1496 |
meeting need not be given if the place, if any, and the time to | 1497 |
which it is adjourned and the procedure by which the voting | 1498 |
members can be present and vote at the adjourned meeting through | 1499 |
the use of authorized communications equipment are fixed and | 1500 |
announced at the meeting. | 1501 |
Sec. 1745.23. (A) Notice of the place, if any, the time, and | 1502 |
the purpose or purposes of any meeting of voting members or | 1503 |
managers, as the case may be, whether required by law or the | 1504 |
governing principles may be waived in writing, either before or | 1505 |
after the holding of that meeting, by any member or any manager. | 1506 |
That writing shall be filed with or entered upon the records of | 1507 |
the meeting. A transmission by authorized communications equipment | 1508 |
that contains a waiver is a writing for purposes of this division. | 1509 |
(C) Unless the governing principles provide otherwise, a | 1515 |
member shall be considered in attendance at a meeting described in | 1516 |
division (A) of this section if the member is present in person, | 1517 |
by the use of authorized communications equipment, by mail, or, if | 1518 |
permitted, by proxy. Unless the governing principles provide | 1519 |
otherwise, a manager shall be considered in attendance at a | 1520 |
meeting described in division (A) of this section if the manager | 1521 |
is present in person or by the use of authorized communications | 1522 |
equipment. | 1523 |
Sec. 1745.28. (A) Unless the governing principles prohibit | 1567 |
the authorization or taking of any action of the members or the | 1568 |
managers without a meeting, any action that may be authorized or | 1569 |
taken at a meeting of the members or the managers, as the case may | 1570 |
be, may be authorized or taken without a meeting with the | 1571 |
affirmative vote or approval of, and in a writing or writings | 1572 |
signed by, all of the members or all of the managers, as the case | 1573 |
may be, who would be entitled to notice of a meeting for that | 1574 |
purpose, or, in the case of members, any other proportion or | 1575 |
number of voting members, not less than a majority, that the | 1576 |
governing principles permit. The writing or writings described in | 1577 |
this division shall be filed with or entered upon the records of | 1578 |
the unincorporated nonprofit association. Any certificate with | 1579 |
respect to the authorization or taking of any action described in | 1580 |
this division that is required to be filed in the office of the | 1581 |
secretary of state shall recite that the authorization or taking | 1582 |
of that action was in a writing or writings approved and signed as | 1583 |
specified in this section. | 1584 |
Sec. 1745.29. (A) A person becomes a member of an | 1591 |
unincorporated nonprofit association and may be suspended, | 1592 |
dismissed, or expelled in accordance with the association's | 1593 |
governing principles. If there are no applicable governing | 1594 |
principles, a person may become a member or be suspended, | 1595 |
dismissed, or expelled from an unincorporated nonprofit | 1596 |
association by a vote of its members. A person may not be admitted | 1597 |
as a member of an unincorporated nonprofit association without the | 1598 |
person's consent. | 1599 |
(B) Unless the governing principles provide otherwise, the | 1600 |
suspension, dismissal, or expulsion of a member of an | 1601 |
unincorporated nonprofit association does not relieve the member | 1602 |
from any unpaid capital contribution, dues, assessments, fees, or | 1603 |
other obligation incurred or commitment made by the member before | 1604 |
the suspension, dismissal, or expulsion. | 1605 |
(1) A manager shall not be found to have failed to perform | 1662 |
the manager's duties in accordance with that division, unless it | 1663 |
is proved by clear and convincing evidence in an action brought | 1664 |
against the manager that the manager has not acted in good faith, | 1665 |
in a manner the manager reasonably believes to be in or not | 1666 |
opposed to the best interests of the unincorporated nonprofit | 1667 |
association, or with the care that an ordinarily prudent person in | 1668 |
a similar position would use under similar circumstances. An | 1669 |
action under division (D)(1) of this section includes, but is not | 1670 |
limited to, an action that involves or affects any of the | 1671 |
following: | 1672 |
Sec. 1745.35. Unless the governing principles provide | 1737 |
otherwise, a majority of the whole authorized number of managers | 1738 |
is necessary to constitute a quorum for a meeting of the managers, | 1739 |
except that a majority of the managers in office constitutes a | 1740 |
quorum for filling a vacancy in the position of manager. The act | 1741 |
of a majority of the managers present at a meeting at which a | 1742 |
quorum is present is the act of all of the managers, unless the | 1743 |
act of a greater number is required by the governing principles. | 1744 |
Sec. 1745.37. (A) The officers of an unincorporated nonprofit | 1773 |
association, if any, may consist of a president, a secretary, a | 1774 |
treasurer, and, if desired, a chairperson, one or more | 1775 |
vice-presidents, and any other officers and assistant officers | 1776 |
that may be considered necessary, each of whom may be designated | 1777 |
by any other titles that may be provided in the governing | 1778 |
principles or the resolutions of the managers. Unless the | 1779 |
governing principles provide otherwise, none of the officers need | 1780 |
be a manager. Any two or more offices may be held by the same | 1781 |
person. The officers shall be elected or appointed at the time, in | 1782 |
the manner, and for the terms that may be prescribed in the | 1783 |
governing principles. In the absence of any such provision, all | 1784 |
officers shall be elected annually by the managers. | 1785 |
Sec. 1745.38. The managers of an unincorporated nonprofit | 1799 |
association may authorize any mortgage, pledge, or deed of trust | 1800 |
of all or any of the property of the association of any | 1801 |
description or any interest in the property, for the purpose of | 1802 |
securing the payment or performance of any obligation or contract. | 1803 |
Unless the governing principles or the terms of any trust on which | 1804 |
the association holds any particular property provide otherwise, | 1805 |
no vote or consent of the members of the association or | 1806 |
authorization from the court under section 1715.39 of the Revised | 1807 |
Code is necessary for that action. | 1808 |
Sec. 1745.39. (A) On reasonable notice, a member or manager | 1809 |
of an unincorporated nonprofit association may inspect and copy | 1810 |
during the association's regular operating hours and at a | 1811 |
reasonable location specified by the association any record | 1812 |
maintained by the association regarding its activities, financial | 1813 |
condition, and other circumstances, to the extent the information | 1814 |
is material to the member's or manager's rights and duties under | 1815 |
the association's governing principles or this chapter. | 1816 |
(C) Unless the governing principles provide otherwise, the | 1855 |
remaining managers, although less than a majority of the whole | 1856 |
authorized number of managers, may by the vote of a majority of | 1857 |
their number fill any vacancy in the office of manager for the | 1858 |
unexpired term. For purposes of this section, a vacancy exists if | 1859 |
the voting members increase the authorized number of managers but | 1860 |
fail at the meeting at which that increase is authorized or an | 1861 |
adjournment of the meeting to elect the additional managers | 1862 |
provided for or if the voting members fail at any time to elect | 1863 |
the whole authorized number of managers. | 1864 |
(1) No contract, action, or transaction is void or voidable | 1867 |
with respect to an unincorporated nonprofit association because | 1868 |
the contract, action, or transaction is between or affects the | 1869 |
association and one or more of its members, managers, or officers | 1870 |
or is between or affects the association and any other person in | 1871 |
which one or more of the association's members, managers, or | 1872 |
officers are members, managers, or officers or in which one or | 1873 |
more of the association's members, managers, or officers have a | 1874 |
financial or personal interest, or because one or more interested | 1875 |
members, managers, or officers participate in or vote at the | 1876 |
meeting of the members, the managers, or a committee of the | 1877 |
managers that authorizes the contract, action, or transaction, if | 1878 |
any of the following applies: | 1879 |
(a) The material facts as to the member's, manager's, or | 1880 |
officer's relationship or interest and as to the contract, action, | 1881 |
or transaction are disclosed or are known to the managers or the | 1882 |
committee, and the managers or committee, in good faith reasonably | 1883 |
justified by the material facts, authorizes the contract, action, | 1884 |
or transaction by the affirmative vote of a majority of the | 1885 |
disinterested managers, even though the disinterested managers | 1886 |
constitute less than a quorum of the managers or the committee. | 1887 |
(b) The material facts as to the member's, manager's, or | 1888 |
officer's relationship or interest and as to the contract, action, | 1889 |
or transaction are disclosed or are known to the members entitled | 1890 |
to vote on the contract, action, or transaction, and the contract, | 1891 |
action, or transaction is specifically approved at a meeting of | 1892 |
the members held for the purpose of voting on the contract, | 1893 |
action, or transaction, by the affirmative vote of a majority of | 1894 |
the voting members of the unincorporated nonprofit association who | 1895 |
are not interested in the contract, action, or transaction. | 1896 |
(3) The managers, by the affirmative vote of a majority of | 1905 |
those in office and irrespective of any financial or personal | 1906 |
interest of any of the managers, have the authority to establish | 1907 |
reasonable compensation, which may include pension, disability, | 1908 |
and death benefits, for services to the unincorporated nonprofit | 1909 |
association by the managers and officers, or to delegate that | 1910 |
authority to establish reasonable compensation to one or more | 1911 |
officers or managers. | 1912 |
Sec. 1745.43. (A) An unincorporated nonprofit association | 1923 |
may indemnify or agree to indemnify any person who was or is a | 1924 |
party or is threatened to be made a party to any threatened, | 1925 |
pending, or completed civil, criminal, administrative, or | 1926 |
investigative action, suit, or proceeding, other than an action by | 1927 |
or in the right of the association, by reason of the fact that the | 1928 |
person is or was a manager, officer, employee, member, agent, or | 1929 |
volunteer of the association or a person acting in any other | 1930 |
representative capacity, however denominated, or is or was serving | 1931 |
at the request of the association as a director, officer, | 1932 |
employee, member, manager, agent, or volunteer of any other | 1933 |
entity, against expenses, including attorney's fees, judgments, | 1934 |
fines, and amounts paid in settlement actually and reasonably | 1935 |
incurred by the person in connection with that action, suit, or | 1936 |
proceeding, if the person acted in good faith and in a manner the | 1937 |
person reasonably believed to be in or not opposed to the best | 1938 |
interests of the association, and, with respect to any criminal | 1939 |
action or proceeding if the person had no reasonable cause to | 1940 |
believe the person's conduct was unlawful. The termination of any | 1941 |
action, suit, or proceeding by judgment, order, settlement, or | 1942 |
conviction, or upon a plea of nolo contendere or its equivalent, | 1943 |
shall not create, of itself, a presumption that the person did not | 1944 |
act in good faith and in a manner the person reasonably believed | 1945 |
to be in or not opposed to the best interests of the association, | 1946 |
and, with respect to any criminal action or proceeding, a | 1947 |
presumption that the person had reasonable cause to believe that | 1948 |
the person's conduct was unlawful. | 1949 |
(B) An unincorporated nonprofit association may indemnify or | 1950 |
agree to indemnify any person who was or is a party, or is | 1951 |
threatened to be made a party, to any threatened, pending, or | 1952 |
completed action or suit by or in the right of the association to | 1953 |
procure a judgment in its favor by reason of the fact that the | 1954 |
person is or was a manager, officer, employee, member, agent, or | 1955 |
volunteer of the association or a person acting in any other | 1956 |
representative capacity, however denominated, or is or was serving | 1957 |
at the request of the association as a director, officer, | 1958 |
employee, member, manager, agent, or volunteer of any other | 1959 |
entity, against expenses, including attorney's fees, actually and | 1960 |
reasonably incurred by the person in connection with the defense | 1961 |
or settlement of that action or suit if the person acted in good | 1962 |
faith and in a manner the person reasonably believed to be in or | 1963 |
not opposed to the best interests of the association, except that | 1964 |
no indemnification shall be made with respect to any of the | 1965 |
following: | 1966 |
(1) Any claim, issue, or matter as to which the person is | 1967 |
adjudged to be liable for negligence or misconduct in the | 1968 |
performance of the person's duty to the unincorporated nonprofit | 1969 |
association unless and only to the extent that the court of common | 1970 |
pleas or the court in which the action or suit was brought | 1971 |
determines, upon application, that despite the adjudication of | 1972 |
liability but in view of all the circumstances of the case, the | 1973 |
person is fairly and reasonably entitled to indemnity for the | 1974 |
expenses that the court of common pleas or that other court | 1975 |
considers proper; | 1976 |
(C) To the extent that a manager, officer, employee, member, | 1980 |
agent, or volunteer of the association or a person acting in any | 1981 |
other representative capacity, however denominated, has been | 1982 |
successful on the merits or otherwise in defense of any action, | 1983 |
suit, or proceeding referred to in division (A) or (B) of this | 1984 |
section, or in defense of any claim, issue, or matter in the | 1985 |
action, suit, or proceeding, that person shall be indemnified | 1986 |
against expenses, including attorney's fees, actually and | 1987 |
reasonably incurred by the person in connection with that action, | 1988 |
suit, or proceeding. | 1989 |
(D)(1) Unless ordered by a court and subject to division (C) | 1990 |
of this section, any indemnification under division (A) or (B) of | 1991 |
this section shall be made by the unincorporated nonprofit | 1992 |
association only as authorized in the specific case upon a | 1993 |
determination that indemnification of the manager, officer, | 1994 |
employee, member, agent, or volunteer of the association or the | 1995 |
person acting in any other representative capacity, however | 1996 |
denominated, is proper in the circumstances because the person has | 1997 |
met the applicable standard of conduct set forth in division (A) | 1998 |
or (B) of this section. That determination shall be made in any of | 1999 |
the following manners: | 2000 |
(2) If an action or suit by or in the right of the | 2016 |
unincorporated nonprofit association is involved, any | 2017 |
determination made by the disinterested managers under division | 2018 |
(D)(1)(a) of this section or by independent legal counsel under | 2019 |
division (D)(1)(b) of this section shall be communicated promptly | 2020 |
to the person who threatened or brought the action or suit under | 2021 |
division (B) of this section, and, within ten days after receipt | 2022 |
of that notification, the person shall have the right to petition | 2023 |
the court of common pleas or the court in which the action or suit | 2024 |
was brought to review the reasonableness of that determination. | 2025 |
(E)(1)(a) Unless at the time of a manager's or volunteer's | 2026 |
act or omission that is the subject of an action, suit, or | 2027 |
proceeding referred to in division (A) or (B) of this section the | 2028 |
governing principles of the unincorporated nonprofit association | 2029 |
stated, by specific reference to division (E)(1)(a) of this | 2030 |
section, that its provisions do not apply to the association, | 2031 |
unless the only liability asserted against a manager in an action, | 2032 |
suit, or proceeding referred to in division (A) or (B) of this | 2033 |
section is pursuant to section 1745.56 of the Revised Code, or | 2034 |
unless division (E)(1)(b) of this section applies, the expenses, | 2035 |
including attorney's fees, incurred by the manager or volunteer in | 2036 |
defending the action, suit, or proceeding shall be paid by the | 2037 |
unincorporated nonprofit association. Upon the request of the | 2038 |
manager or volunteer and in accordance with division (E)(2) of | 2039 |
this section, those expenses shall be paid as they are incurred, | 2040 |
in advance of the final disposition of the action, suit, or | 2041 |
proceeding. | 2042 |
(b) Notwithstanding division (E)(1)(a) of this section, the | 2043 |
expenses incurred by a manager or volunteer in defending an | 2044 |
action, suit, or proceeding referred to in division (A) or (B) of | 2045 |
this section, including attorney's fees, shall not be paid by the | 2046 |
unincorporated nonprofit association upon the final disposition of | 2047 |
the action, suit, or proceeding, or, if paid in advance of the | 2048 |
final disposition of the action, suit, or proceeding, shall be | 2049 |
repaid to the association by the manager or volunteer, if it is | 2050 |
proved, by clear and convincing evidence, in a court with | 2051 |
jurisdiction that the act or omission of the manager or volunteer | 2052 |
was one undertaken with a deliberate intent to cause injury to the | 2053 |
association or was one undertaken with a reckless disregard for | 2054 |
the best interests of the association. | 2055 |
(2) Expenses, including attorney's fees, incurred by a | 2056 |
manager, officer, employee, member, agent, or volunteer of the | 2057 |
association or a person acting in any other representative | 2058 |
capacity, however denominated, in defending any action, suit, or | 2059 |
proceeding referred to in division (A) or (B) of this section may | 2060 |
be paid by the unincorporated nonprofit association as they are | 2061 |
incurred, in advance of the final disposition of the action, suit, | 2062 |
or proceeding, as authorized by the managers in the specific case, | 2063 |
upon receipt of an undertaking by or on behalf of the manager, | 2064 |
officer, employee, member, agent, volunteer, or person acting in | 2065 |
any other representative capacity to repay the amount if it | 2066 |
ultimately is determined that the person is not entitled to be | 2067 |
indemnified by the association. | 2068 |
(F) The indemnification authorized by this section is not | 2069 |
exclusive of, and shall be in addition to, any other rights | 2070 |
granted to those seeking indemnification pursuant to the governing | 2071 |
principles, any agreement, a vote of the members or disinterested | 2072 |
managers, or otherwise, both as to action in their official | 2073 |
capacities and as to action in another capacity while holding | 2074 |
their offices or positions, shall continue as to a person who has | 2075 |
ceased to be a manager, officer, employee, member, agent, or | 2076 |
volunteer of the association or a person acting in any other | 2077 |
representative capacity, however denominated, and shall inure to | 2078 |
the benefit of the heirs, executors, and administrators of that | 2079 |
person. | 2080 |
(G) An unincorporated nonprofit association may purchase and | 2081 |
maintain insurance, or furnish similar protection, including, but | 2082 |
not limited to, trust funds, letters of credit, or self-insurance, | 2083 |
for or on behalf of any person who is or was a manager, officer, | 2084 |
employee, member, agent, or volunteer of the association or a | 2085 |
person acting in any other representative capacity, however | 2086 |
denominated, or is or was serving at the request of the | 2087 |
association as a director, manager, officer, employee, member, | 2088 |
agent, or volunteer of any other entity, against any liability | 2089 |
asserted against the person and incurred by the person in that | 2090 |
capacity, or arising out of the person's status as such, whether | 2091 |
or not the association would have the power to indemnify the | 2092 |
person against that liability under this section. Insurance may be | 2093 |
so purchased from or so maintained with a person in which the | 2094 |
association has a financial interest. | 2095 |
(H) The authority of an unincorporated nonprofit association | 2096 |
to indemnify persons pursuant to division (A) or (B) of this | 2097 |
section does not limit the payment of expenses as they are | 2098 |
incurred, in advance of the final disposition of an action, suit, | 2099 |
or proceeding, pursuant to division (E) of this section or the | 2100 |
payment of indemnification, insurance, or other protection that | 2101 |
may be provided pursuant to division (F) or (G) of this section. | 2102 |
Divisions (A) and (B) of this section do not create any obligation | 2103 |
to repay or return payments made by the association pursuant to | 2104 |
division (E), (F), or (G) of this section. | 2105 |
(I) As used in this section, "unincorporated nonprofit | 2106 |
association" includes all constituent entities in a consolidation | 2107 |
or merger, and the new or surviving entity, so that any person who | 2108 |
is or was a manager, officer, employee, member, agent, or | 2109 |
volunteer of a constituent entity or a person acting in any other | 2110 |
representative capacity, however denominated, or is or was serving | 2111 |
at the request of a constituent entity as a director, officer, | 2112 |
employee, member, manager, agent, or volunteer of any other | 2113 |
entity, shall stand in the same position under this section with | 2114 |
respect to the new or surviving entity as the person would if the | 2115 |
person had served the new or surviving entity in the same | 2116 |
capacity. | 2117 |
Sec. 1745.44. (A) Unless the governing principles of the | 2118 |
unincorporated nonprofit association provide otherwise, the lease, | 2119 |
sale, exchange, transfer, or other disposition of any assets of | 2120 |
the association may be made without the necessity of procuring | 2121 |
authorization from the court under section 1715.39 of the Revised | 2122 |
Code, upon terms and for the consideration that may be authorized | 2123 |
by the managers, except that a lease, sale, exchange, transfer, or | 2124 |
other disposition of all, or substantially all, of the assets may | 2125 |
be made only when that transaction is also authorized, either | 2126 |
before or after authorization by the managers, by the voting | 2127 |
members of the association at a meeting held for that purpose. | 2128 |
(B)(1) A public benefit association may not dispose of its | 2129 |
assets with value equal to more than fifty per cent of the fair | 2130 |
market value of the net tangible and intangible assets, including | 2131 |
goodwill, of the association over a period of thirty-six | 2132 |
consecutive months in a transaction or series of transactions, | 2133 |
including the lease, sale, exchange, transfer, or other | 2134 |
disposition of those assets, that are outside the ordinary course | 2135 |
of its business or that are not in accordance with the purpose or | 2136 |
purposes for which the association was organized, as set forth in | 2137 |
its governing principles, unless one or more of the following | 2138 |
apply: | 2139 |
(b) The public benefit association has provided written | 2147 |
notice of the proposed transaction, including a copy or summary of | 2148 |
the terms of that transaction, at least twenty days before | 2149 |
consummation of the lease, sale, exchange, transfer, or other | 2150 |
disposition of the assets, to the attorney general's charitable | 2151 |
law section and to the members of the association, and the | 2152 |
proposed transaction has been approved by the members. | 2153 |
(2) The attorney general may require pursuant to section | 2158 |
109.24 of the Revised Code the production of the documents | 2159 |
necessary for review of a proposed transaction under division | 2160 |
(B)(1) of this section. The attorney general may retain at the | 2161 |
expense of the public benefit association one or more experts, | 2162 |
including an investment banker, actuary, appraiser, certified | 2163 |
public accountant, or other expert, that the attorney general | 2164 |
considers reasonably necessary to provide assistance in reviewing | 2165 |
a proposed transaction under division (B)(1) of this section. | 2166 |
(D) The unincorporated nonprofit association or the public | 2175 |
benefit association by its managers may abandon the proposed | 2176 |
lease, sale, exchange, transfer, or other disposition of the | 2177 |
assets of the association pursuant to division (A) or (B) of this | 2178 |
section, as applicable, subject to the contract rights of other | 2179 |
persons, if that power of abandonment is conferred upon the | 2180 |
managers either by the terms of the transaction or by the same | 2181 |
vote of members and at the same meeting of members as that | 2182 |
referred to in division (A) or (B) of this section, as applicable, | 2183 |
or at any subsequent meeting. | 2184 |
Sec. 1745.45. Property of any description and any interest | 2192 |
in the property of an unincorporated nonprofit association, | 2193 |
domestic or foreign, may be sold under the judgment or decree of a | 2194 |
court, as provided in the Revised Code with respect to similar | 2195 |
property of natural persons, at a public or private sale in the | 2196 |
manner, at the time and place, on the notice by publication or | 2197 |
otherwise, and on the terms that the court adjudging or decreeing | 2198 |
that sale considers equitable and proper. It is not necessary to | 2199 |
appraise that property or to advertise the sale of the property | 2200 |
otherwise than as the court adjudges or decrees. | 2201 |
Sec. 1745.46. (A)(1) Pursuant to an agreement of merger, an | 2202 |
unincorporated nonprofit association and one or more additional | 2203 |
domestic or foreign entities may be merged into a surviving | 2204 |
unincorporated nonprofit association. Pursuant to an agreement of | 2205 |
consolidation, one or more domestic or foreign entities may be | 2206 |
consolidated into a new unincorporated nonprofit association. If | 2207 |
any constituent entity is formed or organized under the laws of | 2208 |
any state other than this state or under any chapter of the | 2209 |
Revised Code other than this chapter, the merger or consolidation | 2210 |
also must be permitted by the chapter of the Revised Code under | 2211 |
which each domestic constituent entity exists and by the laws | 2212 |
under which each foreign constituent entity exists. | 2213 |
(2) To effect a merger or consolidation under this section, | 2214 |
the manager or managers of each constituent unincorporated | 2215 |
nonprofit association shall approve an agreement of merger or | 2216 |
consolidation to be signed by the manager, the chairperson, the | 2217 |
president, or a vice-president and by the secretary or an | 2218 |
assistant secretary or, if there are no officers, by one or more | 2219 |
authorized managers. The agreement of merger or consolidation | 2220 |
shall be approved or otherwise authorized by or on behalf of each | 2221 |
other constituent entity in accordance with the laws under which | 2222 |
it exists. | 2223 |
(B)(1) A merger or consolidation in which a public benefit | 2279 |
association is one of the constituent entities shall be approved | 2280 |
by the court of common pleas of the county in this state in which | 2281 |
the principal office of the public benefit association is located | 2282 |
in a proceeding of which the attorney general's charitable law | 2283 |
section has been given written notice by certified mail within | 2284 |
three days of the initiation of the proceeding and in which the | 2285 |
attorney general may intervene as of right. No approval by the | 2286 |
court under division (B)(1) of this section is required if either | 2287 |
of the following applies: | 2288 |
(i) On or prior to the effective date of the merger or | 2298 |
consolidation, assets with a value equal to the greater of the | 2299 |
fair market value of the net tangible and intangible assets, | 2300 |
including goodwill, of the public benefit association or the fair | 2301 |
market value of the public benefit association if it is to be | 2302 |
operated as a business concern, are transferred or conveyed to one | 2303 |
or more persons that would have received its assets under division | 2304 |
(D)(2) of section 1745.52 of the Revised Code had it voluntarily | 2305 |
dissolved. | 2306 |
(iii) The merger or consolidation is approved by a majority | 2311 |
of managers of the public benefit association who will not receive | 2312 |
any financial or other benefit, directly or indirectly, as a | 2313 |
result of the merger or consolidation or by agreement, and who are | 2314 |
not and will not as a result of the merger or consolidation become | 2315 |
members, partners, or other owners, however denominated, of, | 2316 |
shareholders in, managers, officers, employees, agents, or other | 2317 |
representatives of, or consultants to, the surviving or new | 2318 |
entity. | 2319 |
(2) At least twenty days before consummation of any merger or | 2320 |
consolidation of a public benefit association pursuant to division | 2321 |
(B)(1)(b) of this section, written notice shall be delivered to | 2322 |
the attorney general's charitable law section. The notice shall | 2323 |
include a copy of the proposed plan of merger or consolidation. | 2324 |
The attorney general's charitable law section may review a | 2325 |
proposed merger or consolidation of a public benefit association | 2326 |
under division (B)(1)(b) of this section. The attorney general may | 2327 |
require pursuant to section 109.24 of the Revised Code the | 2328 |
production of the documents necessary for review of a proposed | 2329 |
merger or consolidation under division (B)(1)(b) of this section. | 2330 |
The attorney general may retain, at the expense of the public | 2331 |
benefit association, one or more experts, including an investment | 2332 |
banker, actuary, appraiser, certified public accountant, or other | 2333 |
expert, that the attorney general considers reasonably necessary | 2334 |
to provide assistance in reviewing a proposed merger or | 2335 |
consolidation under division (B)(1)(b) of this section. The | 2336 |
attorney general may extend the date of any merger or | 2337 |
consolidation of a public benefit association under division | 2338 |
(B)(1)(b) of this section for a period not to exceed sixty days | 2339 |
and shall provide notice of that extension to the public benefit | 2340 |
association. The notice shall set forth the reasons necessitating | 2341 |
the extension. | 2342 |
(3) No member, other than a member that is a public benefit | 2343 |
entity, or manager of a public benefit association in that | 2344 |
person's capacity as a member or manager may receive or keep | 2345 |
anything as a result of a merger or consolidation other than as a | 2346 |
member or manager in the surviving or new public benefit | 2347 |
association without the prior written consent of the attorney | 2348 |
general or of the court of common pleas of the county in this | 2349 |
state in which the principal office of the public benefit | 2350 |
association is located in a proceeding in which the attorney | 2351 |
general's charitable law section has been given written notice by | 2352 |
certified mail within three days of the initiation of the | 2353 |
proceeding and in which the attorney general may intervene as of | 2354 |
right. The court shall approve the transaction if it is in the | 2355 |
public interest. | 2356 |
(4) The attorney general may institute a civil action to | 2357 |
enforce the requirements of divisions (B)(1), (2), and (3) of this | 2358 |
section in the court of common pleas of the county in this state | 2359 |
in which the principal office of the public benefit association is | 2360 |
located or in the Franklin county court of common pleas. In | 2361 |
addition to any civil remedies that may exist under common law or | 2362 |
the Revised Code, a court may rescind the transaction or grant | 2363 |
injunctive relief or impose any combination of these remedies. | 2364 |
Sec. 1745.461. (A)(1) Pursuant to an agreement of merger | 2365 |
between the constituent entities as provided in this section, a | 2366 |
domestic unincorporated nonprofit association and, if so provided, | 2367 |
one or more additional domestic or foreign entities may be merged | 2368 |
into a surviving entity other than a domestic unincorporated | 2369 |
nonprofit association. Pursuant to an agreement of consolidation, | 2370 |
a domestic unincorporated nonprofit association together with one | 2371 |
or more additional domestic or foreign entities may be | 2372 |
consolidated into a new entity other than a domestic | 2373 |
unincorporated nonprofit association to be formed by that | 2374 |
consolidation. The merger or consolidation must be permitted by | 2375 |
the chapter of the Revised Code under which each domestic | 2376 |
constituent entity exists and by the laws under which each foreign | 2377 |
constituent entity exists. | 2378 |
(2) To effect a merger or consolidation under this section, | 2379 |
the manager or managers of each constituent unincorporated | 2380 |
nonprofit association shall approve an agreement of merger or | 2381 |
consolidation to be signed by the manager, the chairperson, the | 2382 |
president, or a vice-president and by the secretary or an | 2383 |
assistant secretary or, if there are no officers, by an authorized | 2384 |
manager. The agreement of merger or consolidation shall be | 2385 |
approved or otherwise authorized by or on behalf of each other | 2386 |
constituent entity in accordance with the laws under which it | 2387 |
exists. | 2388 |
(b) In the case of a merger, that one or more specified | 2394 |
constituent entities will be merged into a specified surviving | 2395 |
foreign entity or surviving domestic entity other than a domestic | 2396 |
unincorporated nonprofit association or, in the case of a | 2397 |
consolidation, that the constituent entities will be consolidated | 2398 |
into a new foreign entity or domestic entity other than a domestic | 2399 |
unincorporated nonprofit association. The name of the surviving or | 2400 |
new entity may be the same as or similar to that of any | 2401 |
constituent entity. | 2402 |
(h) If the surviving or new entity is a foreign | 2425 |
unincorporated nonprofit association that desires to transact | 2426 |
business in this state as a foreign unincorporated nonprofit | 2427 |
association, a statement to that effect, together with a statement | 2428 |
regarding the appointment of a statutory agent and service of any | 2429 |
process, notice, or demand upon that statutory agent or the | 2430 |
secretary of state, as required when a foreign unincorporated | 2431 |
nonprofit association applies for a license to transact business | 2432 |
in this state; | 2433 |
Sec. 1745.47. (A) The managers of each constituent domestic | 2462 |
unincorporated nonprofit association, upon approving an agreement | 2463 |
of merger or consolidation, shall direct that the agreement be | 2464 |
submitted to the members entitled to vote on it at a meeting of | 2465 |
voting members of that unincorporated nonprofit association held | 2466 |
for that purpose. Notice of the meeting shall be given to all | 2467 |
members of the constituent domestic unincorporated nonprofit | 2468 |
association entitled to vote at the meeting. The notice shall be | 2469 |
accompanied by a copy or summary of the material terms of the | 2470 |
agreement. | 2471 |
(B)(1) In order to be adopted, the agreement, including any | 2472 |
amendments or additions to the agreement proposed at each meeting | 2473 |
described in division (A) of this section, shall receive the | 2474 |
affirmative vote of a majority of the voting members of the | 2475 |
constituent domestic unincorporated nonprofit association present | 2476 |
at that meeting in person, by the use of authorized communications | 2477 |
equipment, by mail, or if permitted, by proxy if a quorum is | 2478 |
present, or, if the governing principles provide or permit, the | 2479 |
affirmative vote of a greater or lesser proportion or number of | 2480 |
the voting members, and the affirmative vote of the voting members | 2481 |
of any particular class that is required by the governing | 2482 |
principles. If the agreement would effect or authorize any action | 2483 |
by the unincorporated nonprofit association that, under any | 2484 |
applicable provision of law or under the governing principles of | 2485 |
the constituent domestic unincorporated nonprofit association, | 2486 |
could be effected or authorized only by or pursuant to a specified | 2487 |
vote of the members, the agreement, including any amendments or | 2488 |
additions to the agreement proposed at each meeting described in | 2489 |
division (A) of this section, shall be adopted by the same vote as | 2490 |
would be required for that action. | 2491 |
(1) The separate existence of each constituent entity other | 2505 |
than the surviving entity in a merger shall cease, except that | 2506 |
whenever a conveyance, assignment, transfer, deed, or other | 2507 |
instrument or act is necessary to vest property or rights in the | 2508 |
surviving or new entity, the officers, managers, general partners, | 2509 |
or other authorized representatives of the respective constituent | 2510 |
entities shall execute, acknowledge, and deliver those instruments | 2511 |
and do those acts. For these purposes, the existence of the | 2512 |
constituent entities and the authority of their respective | 2513 |
officers, managers, general partners, or other authorized | 2514 |
representatives is continued notwithstanding the merger or | 2515 |
consolidation. | 2516 |
(2) In the case of a merger in which the surviving entity is | 2517 |
a domestic unincorporated nonprofit association, the governing | 2518 |
principles of the domestic surviving unincorporated nonprofit | 2519 |
association in effect immediately prior to the time the merger | 2520 |
becomes effective shall continue as its governing principles after | 2521 |
the merger except as otherwise provided in the agreement of | 2522 |
merger. In the case of a consolidation, the new entity exists when | 2523 |
the consolidation becomes effective and, if it is a domestic | 2524 |
unincorporated nonprofit association, the governing principles | 2525 |
contained in or provided for in the agreement of consolidation | 2526 |
shall be its governing principles. | 2527 |
(3) The surviving or new entity possesses all assets and | 2528 |
property of every description and every interest in the assets and | 2529 |
property, wherever located, the rights, privileges, immunities, | 2530 |
powers, franchises, and authority, of a public as well as of a | 2531 |
private nature, of each constituent entity, and all obligations | 2532 |
belonging to or due to each constituent entity, all of which are | 2533 |
vested in the surviving or new entity without further act or deed. | 2534 |
Any right or interest in respect to any past or future devise, | 2535 |
bequest, conditional gift, or trust, property, or fund restricted | 2536 |
to particular uses, when vested in or claimed by the surviving or | 2537 |
new entity as a result of the merger or consolidation, shall | 2538 |
belong to it as a continuation without interruption of the | 2539 |
existence and identity of the constituent entity originally named | 2540 |
as taker or beneficiary. The surviving or new entity possesses | 2541 |
title to any real estate or any interest in the real estate vested | 2542 |
in any of the constituent entities. Title to any real estate or | 2543 |
any interest in the real estate vested in any constituent entity | 2544 |
shall not revert or in any way be impaired by reason of the merger | 2545 |
or consolidation. | 2546 |
(5) All of the rights of creditors of each constituent entity | 2553 |
are preserved unimpaired, and all liens upon the property of any | 2554 |
constituent entity are preserved unimpaired on only the property | 2555 |
affected by those liens immediately prior to the effective date of | 2556 |
the merger or consolidation. If a general partner of a constituent | 2557 |
partnership is not a general partner of the surviving entity or | 2558 |
the new entity resulting from the merger or consolidation, the | 2559 |
former general partner has no liability for any obligation | 2560 |
incurred after the merger or consolidation except to the extent | 2561 |
that a former creditor of the constituent partnership in which the | 2562 |
former general partner was a partner extends credit to the | 2563 |
surviving or new entity reasonably believing that the former | 2564 |
general partner continued as a general partner of the surviving or | 2565 |
new entity. | 2566 |
(C) In the case of a merger of a domestic constituent | 2571 |
unincorporated nonprofit association into a foreign surviving | 2572 |
unincorporated nonprofit association, limited liability company, | 2573 |
limited partnership, or unincorporated association that is not | 2574 |
licensed or registered to transact business in this state or in | 2575 |
the case of a consolidation of a domestic constituent | 2576 |
unincorporated nonprofit association into a new foreign | 2577 |
unincorporated nonprofit association, limited liability company, | 2578 |
limited partnership, or unincorporated association, if the | 2579 |
surviving or new entity intends to transact business in this | 2580 |
state, the surviving or new entity shall comply with all of the | 2581 |
requirements that are necessary for that entity to transact | 2582 |
business in this state as a foreign unincorporated nonprofit | 2583 |
association, limited liability company, limited partnership, or | 2584 |
unincorporated association, whichever is applicable. | 2585 |
(D) The managers of the unincorporated nonprofit association | 2660 |
and their survivors or successors shall act in accordance with the | 2661 |
governing principles until the affairs of the association are | 2662 |
completely wound up. Subject to the orders of courts of this state | 2663 |
having jurisdiction over the association, the managers shall | 2664 |
proceed as speedily as is practicable to a complete winding up of | 2665 |
the affairs of the association and, to the extent necessary or | 2666 |
expedient to that end, shall exercise all the authority of the | 2667 |
association. Without limiting the generality of that authority, | 2668 |
they may fill vacancies, elect managers, carry out contracts of | 2669 |
the association, make new contracts, borrow money, mortgage or | 2670 |
pledge the property of the association as security, sell its | 2671 |
assets at public or private sale, make conveyances in the | 2672 |
association's name, lease real property for any term, including | 2673 |
ninety-nine years renewable forever, settle or compromise claims | 2674 |
in favor of or against the association, employ one or more persons | 2675 |
as liquidators to wind up the affairs of the association with the | 2676 |
authority that the managers see fit to grant, cause the title to | 2677 |
any of the assets of the association to be conveyed to those | 2678 |
liquidators for that purpose, apply assets to the payment of | 2679 |
obligations, perform all other acts necessary or expedient to the | 2680 |
winding up of the affairs of the association, and, after paying or | 2681 |
adequately providing for the payment of all known obligations of | 2682 |
the association, distribute the remainder of the assets as | 2683 |
follows: | 2684 |
(c) In the event and to the extent that in the judgment of | 2697 |
the managers it is not feasible to apply the assets as provided in | 2698 |
divisions (D)(2)(a) and (b) of this section, the assets shall be | 2699 |
applied as may be directed by the court of common pleas of the | 2700 |
county in this state in which the principal office of the | 2701 |
association is located, in an action brought for that purpose by | 2702 |
the managers or any one of them or by the association, to which | 2703 |
action the attorney general shall be a party, in an action brought | 2704 |
by the attorney general in a court of competent jurisdiction, or | 2705 |
in an action brought as provided in section 1745.53 of the Revised | 2706 |
Code for the purpose of winding up the affairs of the association | 2707 |
under the supervision of the court. | 2708 |
(3) In the case of a mutual benefit association, any | 2709 |
remaining assets shall be distributed in accordance with the | 2710 |
applicable provisions of the governing principles of the | 2711 |
association or, to the extent that no such provision is made, the | 2712 |
assets shall be distributed pursuant to a plan of distribution | 2713 |
adopted by the members of the association at a meeting held for | 2714 |
the purpose of voting on dissolution or any adjournment of the | 2715 |
meeting. If no plan of distribution is so adopted by the members, | 2716 |
those remaining assets shall be distributed pursuant to a plan of | 2717 |
distribution adopted by the managers. If no plan of distribution | 2718 |
is so adopted by the members or managers, the remaining assets | 2719 |
shall be applied in the manner directed by the court of common | 2720 |
pleas of the county in this state in which the principal office of | 2721 |
the association is located, in an action brought for that purpose | 2722 |
by the mutual benefit association, by the managers or any one of | 2723 |
them, or by the attorney general in a court of competent | 2724 |
jurisdiction or in an action brought as provided in section | 2725 |
1745.53 of the Revised Code for the purpose of winding up the | 2726 |
affairs of the association under the supervision of the court. | 2727 |
(E) Without limiting the authority of the managers, any | 2728 |
action within the purview of this section that is authorized or | 2729 |
approved by the members at a meeting held for that purpose shall | 2730 |
be conclusive for all purposes upon all of the members of the | 2731 |
association, except that nothing in this section shall impair the | 2732 |
jurisdiction of courts of competent jurisdiction to enforce the | 2733 |
duties of a public benefit association with respect to the | 2734 |
application of its assets towards its public or charitable | 2735 |
purposes, or impair the power of the state, acting through the | 2736 |
attorney general, to require those assets to be applied, as nearly | 2737 |
as may be, towards its public or charitable purposes. | 2738 |
Sec. 1745.53. (A) Without limiting the generality of its | 2749 |
authority, the court of common pleas of the county in this state | 2750 |
in which is located the principal office of a voluntarily | 2751 |
dissolved unincorporated nonprofit association or of an | 2752 |
unincorporated nonprofit association whose period of existence has | 2753 |
expired, upon the complaint of the association, a majority of the | 2754 |
managers, or a creditor or member of the association and upon | 2755 |
notice to all of the managers and any other interested persons | 2756 |
that the court considers proper, at any time may order and adjudge | 2757 |
in regard to the following matters: | 2758 |
(3) The settlement or determination of all claims of every | 2772 |
nature against the association or any of its property, the | 2773 |
determination of the assets required to be retained to pay or | 2774 |
provide for the payment of those claims or any claim, the | 2775 |
determination of the assets available for distribution among | 2776 |
members and others, and the making of new parties to the | 2777 |
proceeding so far as the court considers proper for the | 2778 |
determination of all matters; | 2779 |
(11) The entry of a judgment or decree that, if it so | 2806 |
provides, may operate as the deed or other instrument ordered to | 2807 |
be executed, or the appointment of a master to execute that deed | 2808 |
or instrument in the name of the association with the same effect | 2809 |
as if executed by an authorized manager pursuant to authority | 2810 |
conferred by the managers or by the members of the association if | 2811 |
there is no manager competent to execute the deed or instrument, | 2812 |
if the association or its managers do not perform or comply with a | 2813 |
judgment or decree of court, or if the court considers it proper. | 2814 |
Sec. 1745.54. (A) If after an unincorporated nonprofit | 2822 |
association is dissolved voluntarily or the period of existence of | 2823 |
the association has expired a receiver is appointed to wind up the | 2824 |
affairs of the association, all of the claims, demands, rights, | 2825 |
interests, or liens of creditors, claimants, and members shall be | 2826 |
determined as of the day on which the receiver was appointed. | 2827 |
Unless it is otherwise ordered, that appointment vests in the | 2828 |
receiver and the receiver's successors the right to the immediate | 2829 |
possession of all of the property of the association that shall, | 2830 |
if so ordered, execute and deliver conveyances of the property to | 2831 |
the receiver or the receiver's nominee. | 2832 |
(C) The receiver has all the authority vested in the managers | 2836 |
and members of the association, shall exercise that authority | 2837 |
subject to the orders that are made by the court, and may be | 2838 |
required to qualify by giving bond to the state in the amount that | 2839 |
the court fixes, with surety to the satisfaction of the clerk of | 2840 |
the court, conditioned for the faithful discharge of the | 2841 |
receiver's duties and for a due accounting for all money or | 2842 |
property received by the receiver. | 2843 |
(4) By an order of the court of common pleas of the county in | 2875 |
this state in which the association has its principal office, in | 2876 |
an action brought by one-half of the managers if there is an even | 2877 |
number of managers or by one-half of the members if it is | 2878 |
established that the association has an even number of managers | 2879 |
who are deadlocked in the management of the association's affairs, | 2880 |
and the members are unable to break the deadlock, or if it is | 2881 |
established that the association has an uneven number of managers, | 2882 |
and the members are deadlocked in voting power and unable to agree | 2883 |
upon or vote for the election of managers as successors to | 2884 |
managers whose terms normally would expire upon the election of | 2885 |
their successors. | 2886 |
(C) Upon the filing of a complaint for judicial dissolution, | 2894 |
the court with which it is filed shall have the power to issue | 2895 |
injunctions, to appoint a receiver with the authority and duties | 2896 |
that the court from time to time may direct, to take any other | 2897 |
proceedings that may be necessary to protect the property or the | 2898 |
rights of the complainants or of the persons interested, and to | 2899 |
carry on the activities of the unincorporated nonprofit | 2900 |
association until a full hearing can be had. Upon or after the | 2901 |
filing of a complaint for judicial dissolution, the court by | 2902 |
injunction or order may stay the prosecution of any proceeding | 2903 |
against the unincorporated nonprofit association or involving any | 2904 |
of its property and require the parties to it to present and prove | 2905 |
their claims, demands, rights, interests, or liens at the time and | 2906 |
in the manner required of creditors or others. The court may refer | 2907 |
the complaint to a special master commissioner. | 2908 |
(D) After a hearing had upon the notice that the court may | 2909 |
direct to be given to all parties to the proceeding and to any | 2910 |
other parties in interest designated by the court, a final order | 2911 |
based either upon the evidence or upon the report of the special | 2912 |
master commissioner if one has been appointed, shall be made | 2913 |
dissolving the association or dismissing the complaint. An order | 2914 |
or judgment for the judicial dissolution of an unincorporated | 2915 |
nonprofit association shall contain a concise statement of the | 2916 |
proceedings leading up to the order or judgment, the name of the | 2917 |
association, the place in this state where its principal office is | 2918 |
located, the names and addresses of its managers, the name and | 2919 |
address of a statutory agent, and if desired, any other provisions | 2920 |
with respect to the judicial dissolution and winding up of affairs | 2921 |
that are considered necessary or desirable. Upon the issuance of | 2922 |
that order or judgment, the association shall be dissolved. To the | 2923 |
extent consistent with orders entered in that proceeding, the | 2924 |
effect of the judicial dissolution shall be the same as in the | 2925 |
case of voluntary dissolution, and the provisions of sections | 2926 |
1745.52, 1745.53, and 1745.54 of the Revised Code with respect to | 2927 |
the authority and duties of managers during the winding up of the | 2928 |
affairs of an association dissolved voluntarily, the jurisdiction | 2929 |
of courts over the winding up of the affairs of an association, | 2930 |
and receivers for winding up the affairs of an association are | 2931 |
applicable to associations that are judicially dissolved. | 2932 |
(E) A judicial proceeding under this section concerning the | 2933 |
judicial dissolution of an unincorporated nonprofit association is | 2934 |
a special proceeding, and final orders in the proceeding may be | 2935 |
vacated, modified, or reversed on appeal pursuant to the Rules of | 2936 |
Appellate Procedure or the Rules of Practice of the Supreme Court, | 2937 |
whichever are applicable, and, to the extent not in conflict with | 2938 |
those rules, Chapter 2505. of the Revised Code. | 2939 |
(a) In cases under division (B)(1)(a) of this section, except | 2960 |
as provided in division (B)(3) of this section, up to the amount | 2961 |
of the distribution in excess of the amount that could have been | 2962 |
distributed without violation of law or the governing principles | 2963 |
but not in excess of the amount that would inure to the benefit of | 2964 |
the creditors of the association if it was insolvent at the time | 2965 |
of the distribution or there was reasonable ground to believe that | 2966 |
by that action it would be rendered insolvent, or to the benefit | 2967 |
of the members other than members of the class in respect of which | 2968 |
the distribution was made; | 2969 |
(3) A manager shall not be liable under division (B)(1)(a) or | 2978 |
(b) of this section if in determining the amount available for any | 2979 |
distribution under that division, the manager in good faith relied | 2980 |
on a financial statement of the association prepared by an officer | 2981 |
or employee of the association in charge of its accounts or | 2982 |
certified by a public accountant or firm of public accountants, in | 2983 |
good faith considered the assets to be of their book value, or | 2984 |
followed what the manager believed to be sound accounting and | 2985 |
business practice. | 2986 |
(E) A manager against whom a claim is asserted under or | 3000 |
pursuant to this section and who is held liable on the claim shall | 3001 |
be entitled to contribution, on equitable principles, from other | 3002 |
managers who are also liable. Additionally, any manager against | 3003 |
whom a claim is asserted under or pursuant to this section or who | 3004 |
is held liable on the claim shall have a right of contribution | 3005 |
from the members who knowingly received any distribution made | 3006 |
contrary to law or the governing principles, and those members as | 3007 |
among themselves shall also be entitled to contribution in | 3008 |
proportion to the amounts received by them respectively. | 3009 |
(1) The offense is a minor misdemeanor committed by an | 3024 |
officer, agent, or employee of the organization acting in its | 3025 |
behalf and within the scope of histhe officer's, agent's, or | 3026 |
employee's office or employment, except that if the section | 3027 |
defining the offense designates the officers, agents, or employees | 3028 |
for whose conduct the organization is accountable or the | 3029 |
circumstances under which it is accountable,
suchthose provisions | 3030 |
shall apply. | 3031 |
(2) A purpose to impose organizational liability plainly | 3032 |
appears in the section defining the offense, and the offense is | 3033 |
committed by an officer, agent, or employee of the organization | 3034 |
acting in its behalf and within the scope of histhe officer's, | 3035 |
agent's, or employee's office or employment, except that if the | 3036 |
section defining the offense designates the officers, agents, or | 3037 |
employees for whose conduct the organization is accountable or the | 3038 |
circumstances under which it is accountable, suchthose provisions | 3039 |
shall apply. | 3040 |
(4) If, acting with the kind of culpability otherwise | 3043 |
required for the commission of the offense, its commission was | 3044 |
authorized, requested, commanded, tolerated, or performed by the | 3045 |
board of directors, trustees, partners, or by a high managerial | 3046 |
officer, agent, or employee acting in behalf of the organization | 3047 |
and within the scope of hissuch a board's or person's office or | 3048 |
employment. | 3049 |
(D) As used in this section, "organization" means a | 3060 |
corporation for profit or not for profit, partnership, limited | 3061 |
partnership, joint venture, unincorporated nonprofit association, | 3062 |
estate, trust, or other commercial or legal entity. "Organization" | 3063 |
does not include an entity organized as or by a governmental | 3064 |
agency for the execution of a governmental program. | 3065 |
Sec. 3955.06. (A) There is hereby created a nonprofitan | 3066 |
unincorporated nonprofit association to be known as the Ohio | 3067 |
insurance guaranty association. All member insurers, as defined in | 3068 |
division (D) of section 3955.01 of the Revised Code, shall be and | 3069 |
remain members of the association as a condition of their | 3070 |
authority to transact insurance in this state. The association | 3071 |
shall perform its functions under a plan of operation established | 3072 |
and approved under section 3955.09 of the Revised Code and shall | 3073 |
exercise its powers through a board of directors established under | 3074 |
section 3955.07 of the Revised Code. | 3075 |
Sec. 3956.06. (A) There is hereby created a nonprofitan | 3081 |
unincorporated nonprofit association to be known as the Ohio life | 3082 |
and health insurance guaranty association. All member insurers | 3083 |
shall be and remain members of the association as a condition of | 3084 |
their authority to transact the business of insurance in this | 3085 |
state. The association shall perform its functions under the plan | 3086 |
of operation established and approved under section 3956.10 of the | 3087 |
Revised Code and shall exercise its powers through a board of | 3088 |
directors established under section 3956.07 of the Revised Code. | 3089 |
For purposes of administration and assessment, the association | 3090 |
shall maintain the following two accounts: | 3091 |
(B) Members appointed by the governor shall serve for a term | 3137 |
of six years with each term ending on the same day of the year in | 3138 |
which the member was first appointed, except that each member | 3139 |
shall serve for a period of sixty additional days at the end of | 3140 |
the member's term or until the member's successor is appointed and | 3141 |
qualifies, whichever date occurs first. Of the members first | 3142 |
appointed to the council by the governor, one member each | 3143 |
representing labor and management shall serve an initial term of | 3144 |
two years, one member each representing labor and management shall | 3145 |
serve a term of four years, and the remaining two members shall | 3146 |
serve full six-year terms. The members initially appointed by the | 3147 |
speaker of the house of representatives and the president of the | 3148 |
senate shall serve a term of six years. Thereafter, members shall | 3149 |
be appointed to and serve full six-year terms. Members are | 3150 |
eligible for reappointment to any number of additional terms. | 3151 |
(2) "Nonprofit organization" means any unincorporated | 3172 |
nonprofit association or nonprofit corporation that is not formed | 3173 |
for the pecuniary gain or profit of, and whose net earnings or any | 3174 |
part thereofof whose net earnings is not distributable to, its | 3175 |
members, trustees, officers, or other private persons; provided, | 3176 |
that the payment of reasonable compensation for services rendered | 3177 |
and the distribution of assets on dissolution shall not be | 3178 |
considered pecuniary gain or profit or distribution of earnings in | 3179 |
an association or corporation all of whose members are nonprofit | 3180 |
corporations. Distribution of earnings to member organizations | 3181 |
does not deprive it of the status of a nonprofit organization. | 3182 |
(1) The superintendent of liquor control is satisfied the | 3189 |
organization meets the definition of a nonprofit organization as | 3190 |
set forth in division (A)(2) of this section, the nonprofit | 3191 |
organization's membership includes persons residing in two or more | 3192 |
states, and the organization's total membership is in excess of | 3193 |
five hundred. The superintendent may accept a sworn statement by | 3194 |
the president or other chief executive officer of the nonprofit | 3195 |
organization as proof of the matters required in this division. | 3196 |
(B) The holder of an F-4 permit may furnish, with or without | 3226 |
charge, wine that it has obtained from the A-2 permit holders that | 3227 |
are participating in the event for which the F-4 permit is issued, | 3228 |
in two-ounce samples for consumption on the premises where | 3229 |
furnished and may sell such wine by the glass for consumption on | 3230 |
the premises where sold. The holder of an A-2 permit that is | 3231 |
participating in the event for which the F-4 permit is issued may | 3232 |
sell wine that it has manufactured, in sealed containers for | 3233 |
consumption off the premises where sold. Wine may be furnished or | 3234 |
sold on the premises of the event for which the F-4 permit is | 3235 |
issued only where and when the sale of wine is otherwise permitted | 3236 |
by law. | 3237 |
(B) An F-7 permit may be issued to a nonprofit organization | 3312 |
to sell beer, wine, mixed beverages, and spirituous liquor by the | 3313 |
individual drink at a qualified golf event being held on premises | 3314 |
located in a political subdivision or part of a political | 3315 |
subdivision where the sale of beer, wine, mixed beverages, and | 3316 |
spirituous liquor is otherwise permitted by law on that day, if | 3317 |
both of the following requirements are met: | 3318 |
(2) If a trust meets the requirement of division (D)(1) of | 3443 |
this section, the amount of the trust that is considered by the | 3444 |
county department of job and family services as an available | 3445 |
resource to the applicant or recipient shall be the maximum amount | 3446 |
of payments permitted under the terms of the trust to be | 3447 |
distributed to the applicant or recipient, assuming the full | 3448 |
exercise of discretion by the trustee or trustees. The maximum | 3449 |
amount shall include only amounts that are permitted to be | 3450 |
distributed but are not distributed from either the income or | 3451 |
principal of the trust. | 3452 |
(b) If a special needs trust meets the requirements of | 3569 |
division (F)(1)(a) of this section and has been established for a | 3570 |
disabled applicant or recipient under sixty-five years of age, the | 3571 |
exemption for the trust granted pursuant to division (F) of this | 3572 |
section shall continue after the disabled applicant or recipient | 3573 |
becomes sixty-five years of age if the applicant or recipient | 3574 |
continues to be disabled as defined in rules adopted by the | 3575 |
department of job and family services. Except for income earned by | 3576 |
the trust, the grantor shall not add to or otherwise augment the | 3577 |
trust after the applicant or recipient attains sixty-five years of | 3578 |
age. An addition or augmentation of the trust by the applicant or | 3579 |
recipient with the applicant's own assets after the applicant or | 3580 |
recipient attains sixty-five years of age shall be treated as an | 3581 |
improper disposition of assets. | 3582 |
(2) Any portion of a trust that meets the requirements of | 3713 |
division (G)(1) of this section shall be an available resource | 3714 |
only if the trust permits the trustee to expend principal, corpus, | 3715 |
or assets of the trust for the applicant's or recipient's medical | 3716 |
care, care, comfort, maintenance, health, welfare, general well | 3717 |
being, or any combination of these purposes. | 3718 |
(b) If a trust contains a clear statement requiring the | 3741 |
trustee to use a portion of the trust for a purpose other than | 3742 |
medical care, care, comfort, maintenance, welfare, or general well | 3743 |
being of the applicant or recipient, that portion of the trust | 3744 |
shall not be counted as an available resource. Terms of a trust | 3745 |
that grant discretion to limit the use of a portion of the trust | 3746 |
shall not qualify as a clear statement requiring the trustee to | 3747 |
use a portion of the trust for a particular purpose. | 3748 |
(5) Any actual payments to the applicant or recipient from a | 3787 |
trust that meet the requirements of division (G)(1) of this | 3788 |
section, including trusts that are not counted as an available | 3789 |
resource, shall be treated as provided in rules adopted by the | 3790 |
department of job and family services governing income. Payments | 3791 |
to any person other than the applicant or recipient shall not be | 3792 |
considered income to the applicant or recipient. Payments from the | 3793 |
trust to a person other than the applicant or recipient shall not | 3794 |
be considered an improper disposition of assets. | 3795 |
(b) It is owned by a corporation, unincorporated nonprofit | 3816 |
association, or trust of a charitable, religious, or fraternal | 3817 |
nature, whichthat is organized and operated not for profit, which | 3818 |
is not formed for the pecuniary gain or profit of, and whose net | 3819 |
earnings or any part of whose net earnings is not distributable | 3820 |
to, its members, trustees, officers, or other private persons, and | 3821 |
which is exempt from federal income taxation under section 501 of | 3822 |
the "Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C. 1. | 3823 |
(2) A place of residence that satisfies divisions (B)(1)(b), | 3834 |
(d), and (e) of this section; that satisfies the definition of | 3835 |
"nursing home," "residential care facility," or "adult care | 3836 |
facility" under section 3721.01 or 3722.01 of the Revised Code | 3837 |
regardless of whether it is licensed as such a home or facility; | 3838 |
and that is provided at no charge to individuals on account of | 3839 |
their service without compensation to a charitable, religious, | 3840 |
fraternal, or educational institution, which individuals are aged | 3841 |
or infirm and are members of the corporation, association, or | 3842 |
trust that owns the place of residence. For the purposes of | 3843 |
division (B)(2) of this section, "compensation" does not include | 3844 |
furnishing room and board, clothing, health care, or other | 3845 |
necessities, or stipends or other de minimis payments to defray | 3846 |
the cost thereof. | 3847 |
(C)(1) If a corporation, unincorporated nonprofit | 3857 |
association, or trust described in division (B)(1)(b) of this | 3858 |
section is granted a certificate of need pursuant to section | 3859 |
3702.52 of the Revised Code to construct, add to, or otherwise | 3860 |
modify a nursing home, or is given approval pursuant to section | 3861 |
3791.04 of the Revised Code to construct, add to, or otherwise | 3862 |
modify a residential care facility or adult care facility and if | 3863 |
the corporation, association, or trust submits an affidavit to the | 3864 |
tax commissioner stating that, commencing on the date of licensure | 3865 |
and continuing thereafter, the home or facility will be operated | 3866 |
in accordance with the requirements of divisions (B)(1)(a) to (e) | 3867 |
of this section, the corporation, association, or trust shall be | 3868 |
considered to be operating a "home for the aged" within the | 3869 |
meaning of division (B)(1) of this section, beginning on the first | 3870 |
day of January of the year in which such certificate is granted or | 3871 |
approval is given. | 3872 |
(3) Upon the occurrence of any of the events referred to in | 3898 |
divisions (C)(2)(a), (b), (c), (d), and (e) of this section, the | 3899 |
corporation, association, or trust shall no longer be considered | 3900 |
to be operating a "home for the aged" pursuant to division (C)(1) | 3901 |
of this section, except that the tax commissioner, for good cause | 3902 |
shown and to the extent the commissioner considers appropriate, | 3903 |
may extend the time period specified in division (C)(2)(c) or (d) | 3904 |
of this section, or both. Nothing in division (C)(3) of this | 3905 |
section shall be construed to prevent a nursing home, residential | 3906 |
care facility, or adult care facility from qualifying as a "home | 3907 |
for the aged" if, upon proper application made pursuant to | 3908 |
division (B) of this section, it is found to meet the requirements | 3909 |
of divisions (A) and (B) of this section. | 3910 |
Section 2. That existing sections 9.231, 169.01, 1702.01, | 3911 |
1702.05, 1702.41, 1702.42, 1702.43, 1702.44, 1702.46, 2901.23, | 3912 |
3955.06, 3956.06, 4121.70, 4303.201, 4303.204, 4303.207, 5111.151, | 3913 |
and 5701.13 and sections 1702.45, 1745.01, 1745.02, and 1745.04 of | 3914 |
the Revised Code are hereby repealed. | 3915 |