Ohio Nonprofit Corporation Law by ahf87876

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									                        OHIO STATE BAR ASSOCIATION
                           CORPORATION LAW COMMITTEE

                  MINUTES OF THE SEPTEMBER 15, 2001 MEETING

       A regular meeting of the Corporation Law Committee of the Ohio State Bar Association
was held at the Hyatt on Capitol Square, Columbus, Ohio, at 9:30 a.m. on September 15, 2001.

       The following members and guests attended:

Thomas C. Coady        Columbus             Roger E. Bloomfield          Dayton
Thomas N. Julius       Akron                Christopher C. McCracken     Cleveland
Jeanne M. Rickert      Cleveland            Randall M. Walters           Columbus
David P. Porter        Cleveland            Todd Jackson                 Cleveland
Jack Kurant            Cleveland            Jason C. Blackford           Cleveland
J. Michael Herr        Dayton               J. Richard Emens             Columbus
Michael Miglets        Columbus             Richard McQuown              Columbus
Frank R. Morris, Jr.   Columbus             Maribeth Deavers             Delaware
Neal W. Dillon         Logan                James J. Petlow              Toledo
Carol L. Barnum        Columbus             Bradley LeBoeuf              Akron
Jack Stith             Cincinnati           Gary P. Kreider              Cincinnati
Richard M. Arceci      Akron

Representing the OSBA Board of Governors:           No Representative Present
Representing the OSBA Staff:                        William Weisenberg Columbus

                                        Call to Order

       Mr. Thomas C. Coady, Chair of the Committee, called the meeting to order.

                                    Memorial Moment of Silence

       Mr. Coady asked that the Committee observe a moment of silence to commemorate those
who lost their lives or loved ones as a result of the terrorist attacks on September 11.

                                    Approval of Minutes

      The minutes of the regular meeting held on January 20, 2001, in the form distributed to
the members of the Committee with the Agenda for this meeting, were approved.
                                            Announcements

        Mr. Coady announced that the Ohio State Bar Association was beginning a project to
prepare model jury instructions to be added to its Casemaker resources. Those interested were
invited to contact the Chair.

       The annual meeting of the Ohio State Bar Association will be held on May 16-17, 2002,
in Columbus, Ohio. The Committee has been asked to consider presenting continuing legal
education. Suggested topics include corporate governance, basic nonprofit corporation law, and
mergers and acquisitions. Those interested should contact Mr. Coady.

        Mr. Coady introduced Keith Ashmus of Cleveland, who has announced his candidacy for
President-Elect of the Ohio State Bar Association. Mr. Ashmus mentioned that his special
interests include expanding the membership and services of the Association and increasing
representation across the Bar.

                                       Legislative Update

        Mr. Weisenberg was delayed in joining the meeting, and the Chair deferred the
legislative report pending Mr. Weisenberg’s arrival.

                        Report of the Limited Liability Subcommittee

       Mr. Jack Kurant reported for the subcommittee. He noted that the proposed changes to
Chapter 1775 had received the approval of the Council of Delegates and were awaiting
introduction in the House. Most probably, the Committee proposal will be included within H.B.
349, sponsored by Representative David Goodman, which contains related changes to Chapters
1775 and 1782.

                           Report of the Cyberspace Subcommittee

       Mr. David Porter reported for the subcommittee. The Committee proposal approved in
January 2001 passed the Council of Delegates and has been added to H.B. 278 for legislative
consideration.

                    Report on Proposal to Amend Statutes for Post-Filing
               Effective Dates of Incorporation, Organization, and Dissolution

       Mr. Todd Jackson reported for the subcommittee. The Committee proposal approved in
January 2001 passed the Council of Delegates and has been included in H.B. 278. Mr. Gary
Kreider noted that H.B. 278 also includes directors’ powers to amend articles of incorporation, as
previously discussed and approved by the Committee.




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                                       Legislative Report

        William Weisenberg joined the meeting and presented a legislative update. He noted that
H.B. 278, incorporating the Committee’s proposals with respect to post filing effective dates, the
directors’ powers to amend articles of incorporation, and the provisions for shareholder
communications, denoted as the cyberspace provision, and H.B. 349, sponsored by
Representative Goodman and incorporating the provisions regarding limitation of liability of
general partners in limited partnerships, regarding the merger of general partnerships, and
pertaining to certain partnership accountings, as developed by Mr. Kurant’s subcommittee, were
pending legislative consideration.

       Mr. Weisenberg also noted that H.B. 597 (123rd General Assembly) had become effective
on April 10, 2001. This legislation, sponsored by Representative Womer-Benjamin, embodied
the changes to Ohio's nonprofit corporation law recommended by this Committee and Nonprofit
Corporation Subcommittee, chaired by Mr. McCracken.

                                     Tender Offer Subcommittee

        Mr. Frank R. Morris, Jr. reported for the subcommittee. Mr. Morris directed the
Committee’s attention to Senate Bill 110, which was attached to the Agenda, and to the summer
2001 letter to the Committee members from Mr. Michael Ellis. He indicated that he was
reporting on this matter for information only and would not request action by the Committee.
Senate Bill 110 proposes amendments to sections 1701.16 and 1701.59, and among other items,
would expressly permit “dead hand” and “no hand” provisions in shareholder rights plans.

        Mr. Morris noted that S.B. 110 was introduced in the late spring/early summer and was
sponsored by the Ohio Chamber of Commerce and the Ohio Manufacturers Association. Mr.
Ellis appeared in mid-June to testify on the bill before the Civil Justice Subcommittee of the
Senate Judiciary Committee and appended his testimony to his July 2, 2001 letter to the
Committee. The bill did not reach the House prior to summer adjournment, but Mr. Morris
forecast that the bill would receive attention when the legislature reconvened.

      With the encouragement of the chair of the Senate Judiciary subcommittee, the OSBA,
OMA and Ohio Chamber of Commerce held discussions on the bill in August and September
2001.

        Mr. Morris indicated that the members of the Tender Offer Subcommittee conferred by
telephone in June and that the initial consensus was to oppose the bill. He explained the
proposals of S.B. 110 in detail and indicated that the proposals conflict with the general
principles by which the Corporation Law Committee has been guided and those principles
generally understood to be the foundation for Ohio’s corporation laws.

       Further, he noted that constitutional challenges to similar provisions have been mounted
in Delaware, and he anticipated that any change to Ohio’s laws would face such a challenge. In


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addition, Mr. Morris noted that various ambiguities and conflicts within the proposed statute
would also breed litigation.

        Beyond purely legal challenges, Mr. Morris wondered whether the statute, if enacted,
would be viewed by institutional investors as extraordinary and unnecessary, and would prompt
such investors to withdraw support for affected public companies. He noted the Pennsylvania
experience which resulted in many companies opting out of similar provisions to avoid
conflicting with the institutional investment community.

       Finally, Mr. Morris noted that the subcommittee had not prepared any alternative
proposals to date, although it had begun to discuss the general parameters of such legislation if
the Committee believed that developing an alternate proposal was advisable.

       Mr. Coady opened the floor for comment and discussion.

       In response to Mr. McCracken’s question, Mr. Porter remarked that the Committee Chair,
Michael Ellis, had been approached in spring 2001 by representatives seeking the support of the
Ohio State Bar Association; however, the sponsors indicated that they did not want to await the
normal deliberations and approval protocols of the Committee or the OSBA. Mr. Ellis was
unable to persuade the sponsors to delay.

         Various Committee members offered specific comments about particular provisions of
the bill, noting that they adversely affected closely held companies, creditors, and a director’s
authority to take many constituents into account when reaching a decision.

        After clarifying that it was the Committee’s consensus to oppose the current bill, Mr.
Coady invited members to contact him or Mr. Morris for information concerning proposed
revisions to the bill.


                                          New Business

       Mr. Coady called for new business.

Secretary of State Services

      Mr. Coady agreed to schedule a report from the Secretary of State’s office for the January
2002 meeting. He will seek a written report to be circulated with the Agenda.

Uniform Arbitration Act

       Mr. Coady noted that H.B. 343 is pending to adopt the Uniform Arbitration Act in Ohio.




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Entity Conversion to Limited Liability Company

        Mr. Walters noted that Delaware has enacted a statute that permits an entity to convert to
a limited liability company with a relation back to its initial date of formation. In the manner of
a merger, the conversion does not require any transfer of assets, assignment of contracts, etc. He
noted that Ohio does not have a parallel provision and asked whether the Committee believed
that a comparable provision would be advisable.
Mr. Kreider suggested that relevant materials might be posted on the OSBA website and Mr.
Walter’s question remains pending.

Limitations on Liability

       Mr. Blackford called Mr. Coady’s attention to his continuing interest in having a
subcommittee formed to consider adopting a statutory safe harbor that would limit the liability of
Ohio corporations for such exposures as environmental remediation, intentional torts, and
asbestos. Mr. Coady noted Mr. Blackford’s interest.

                                Announcement of Next Meeting

      Mr. Coady announced that the winter meeting would be held on January 12, 2002, in
Columbus.

                                          Adjournment

       There was no further business to come before the meeting and therefore, Mr. Coady
declared the meeting adjourned.

                                             Respectfully submitted,


                                             Roger E. Bloomfield
                                             Secretary


COLUMBUS/938684 v.02




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