1702.41 Merger or consolidation of domestic corporations.
1702.41 Merger or consolidation of domestic corporations.
(A)(1) Any two or more corporations may merge into a single corporation which shall be one of the constituent corporations, or may consolidate into a single corporation which shall be a new corporation to be formed by the consolidation.
(2) To effect such merger or consolidation, the directors of each constituent corporation shall approve an agreement of merger or consolidation to be signed by the chairperson of the board, the president, or a vice-president and by the secretary or an assistant secretary, which agreement shall set forth:
(a) That the named constituent corporations have agreed to merge into a specified constituent corporation, herein designated the surviving corporation, or that the named constituent corporations have agreed to consolidate into a new corporation to be formed by the consolidation, herein designated the new corporation;
(b) The name of the surviving or new corporation, which may be the same as or similar to that of any constituent corporation;
(c) The place in this state where the principal office of the surviving or new corporation is to be located;
(d) The names and addresses of the first directors and officers of the surviving or new corporation, and, if desired, their term or terms of office;
(e) The name and address of the statutory agent upon whom any process, notice, or demand against any constituent corporation or the surviving or new corporation may be served;
(f) The terms of the merger or consolidation and the mode of carrying the same into effect;
(g) The regulations of the surviving or new corporation or a provision to the effect that the regulations of one of the constituent corporations shall be the regulations of the surviving or new corporation or to the effect that the voting members or the directors of the surviving or new corporation may adopt regulations, or any combination thereof.
(3) The agreement may also set forth:
(a) The specification of a date, which may be the date of the filing of the agreement or a date subsequent thereto, upon which the merger or consolidation shall become effective;
(b) A provision conferring upon the directors of one or more of the constituent corporations the power to abandon the merger or consolidation prior to the filing of the agreement;
(c) Any additional provision permitted to be included in the articles of a newly formed corporation;
(d) Any additional provision deemed necessary or desirable with respect to the proposed merger or consolidation.
(B)(1) Without the prior approval of the court of common pleas of the county in this state in which the principal office of the corporation is located, in a proceeding of which the attorney general’s charitable law section has been given written notice by certified mail within three days of the initiation of the proceeding, and in which proceeding the attorney general may intervene as of right, a public benefit corporation may merge or consolidate only with any of the following:
(a) A public benefit corporation;
(b) A foreign corporation that would qualify under the Revised Code as a public benefit corporation;
(c) A mutual benefit corporation or a business corporation, provided that the public benefit corporation is the surviving corporation in the case of a merger and continues to be a public benefit corporation or that a public benefit corporation is the new corporation in the case of a consolidation;
(d) A business corporation or mutual benefit corporation, provided that all of the following apply:
(i) On or prior to the effective date of the merger or consolidation, assets with a value equal to the greater of the fair market value of the net tangible and intangible assets, including goodwill, of the public benefit corporation or the fair market value of the public benefit corporation if it is to be operated as a business concern, are transferred or conveyed to one or more persons that would have received its assets under section 1702.49 of the Revised Code had it voluntarily dissolved.
(ii) It returns, transfers, or conveys any assets held by it upon a condition requiring return, transfer, or conveyance, which condition occurs by reason of the merger or consolidation, in accordance with that condition.
(iii) The merger or consolidation is approved by a majority of directors of the public benefit corporation who will not receive any financial or other benefit, directly or indirectly, as a result of the merger or consolidation or by agreement, and who are not and will not as a result of the merger or consolidation become members of, shareholders in, or officers, employees, agents, or consultants of the surviving or new business corporation or mutual benefit corporation.
(2) At least twenty days before consummation of any merger or consolidation of a public benefit corporation pursuant to division (B)(1)(d) of this section, written notice, including a copy of the proposed plan of merger or consolidation, shall be delivered to the attorney general’s charitable law section. The attorney general’s charitable law section may review a proposed merger or consolidation of a public benefit corporation under division (B)(1)(d) of this section. The attorney general may require, pursuant to section 109.24 of the Revised Code, the production of the documents necessary for review of a proposed merger or consolidation under division (B)(1)(d) of this section. The attorney general may retain, at the expense of the public benefit corporation, one or more experts, including an investment banker, actuary, appraiser, certified public accountant, or other expert, that the attorney general considers reasonably necessary to provide assistance in reviewing a proposed merger or consolidation under division (B)(1)(d) of this section. The attorney general may extend the date of any merger or consolidation of a public benefit corporation under division (B)(1)(d) of this section for a period not to exceed sixty days and shall provide notice of that extension to the public benefit corporation. The notice shall set forth the reasons necessitating the extension.
(3) Without the prior written consent of the attorney general or of the court of common pleas of the county in this state in which the principal office of the corporation is located, in a proceeding in which the attorney general’s charitable law section has been given written notice by certified mail within three days of the initiation of the proceeding, and in which proceeding the attorney general may intervene as of right, no member or director of a public benefit corporation in that person’s capacity as a member or director may receive or keep anything as a result of a merger of consolidation other than membership or directorship in the surviving or new public benefit corporation. The court shall approve the transaction if it is in the public interest.
(4) The attorney general may institute a civil action to enforce the requirements of divisions (B)(1), (2), and (3) of this section in the court of common pleas of the county in this state in which the principal office of the corporation is located or in the Franklin county court of common pleas. In addition to any civil remedies that may exist under common law or the Revised Code, a court may rescind the transaction or grant injunctive relief or impose any combination of these remedies.
(C) A corporation may be the surviving or new entity in a merger or consolidation with one or more business corporations, or a corporation may merge or consolidate into one or more business corporations with a business corporation, a mutual benefit corporation, or a foreign corporation as the surviving or new entity, provided that the corporation complies with the provisions of this section and sections 1702.42 and 1702.43 of the Revised Code, as applicable to the corporation, and that the business corporation complies with the provisions of section 1701.781 or 1701.791 of the Revised Code, as applicable to the business corporation.
Effective Date: 04-10-2001