BDJ 71112 S-4 Registration of securities issued in business combination transactions

EXHIBIT 3.13

CODE OF REGULATIONS

OF

THE FOOD GROUP, INC.

ARTICLE ONE

MEETINGS OF SHAREHOLDERS

                    Section 1.01. Annual Meetings. The annual meeting of the shareholders for the election of directors, for the con­sideration of reports to be laid before such meeting and for the transaction of such other business as may properly come before such meeting, shall be held on the last Tuesday in April in each year or on such other date as may be fixed from time to time by the Directors.

                    Section 1.02. Calling of Meetings. Meetings of the shareholders may be called only by the Chairman of the Board the President, or, in case of the President’s absence, death, or disability, the Vice President authorized to exercise the authority of the President; the Secretary; the Directors by action at a meeting, or a majority of the Directors acting without a meeting; or the holders of at least 50% of all shares outstanding and entitled to vote thereat.

                    Section 1.03. Place of Meetings. All meetings of shareholders shall be held at the principal office of the cor­poration, unless otherwise provided by action of the Directors. Meetings of shareholders may be held at any place within or without of the State of Ohio.

                    Section 1.04. Notice of Meetings.

                    (A) Written notice stating the time, place and purposes of a meeting of the shareholders shall be given either by personal delivery or by mail not less than seven nor more than sixty days before the date of the meeting (1) to each shareholder of record entitled to notice of the meeting, (2) by or at the direction of the President or the Secretary. If mailed, such notice shall be addressed to the shareholder at his address as it appears on the records of the corporation. Notice of adjournment of a meeting need not be given if the time and place to which it is adjourned are fixed and announced at such meeting. In the event of a transfer of shares after the record date for determining the shareholders who are entitled to receive notice of a meeting of shareholders, it shall not be necessary to give notice to the transferee. Nothing herein contained shall prevent the setting of a record date in the manner provided by law, the Articles or the Regulations for the determination of shareholders who are entitled to receive notice of or to vote at any meeting of shareholders or for any purpose required or permitted by law.

                    (B) Following receipt by the President or

the Secretary of a request in writing, specifying the purpose or purposes for which the persons properly making such request have called a meeting of the shareholders, delivered either in person or by registered mail to such officer by any persons entitled to call a meeting of shareholders, such officer shall cause to be given to the shareholders entitled thereto notice of a meeting to be held on a date not less than seven nor more than 60 days after the receipt of such request, as such officer may fix. If such notice is not given within 15 days after the receipt of such request by the President or the Secretary, then, and only then, the persons properly calling the meeting may fix the time of meeting and give notice thereof in accordance with the provisions of the Regulations.

                    Section 1.05 Waiver of Notice. Notice of the time, place and purpose or purposes of any meeting of shareholders may be waived in writing, either before or after the holding of such meeting, by any shareholder, which writing shall be filed with or entered upon the records of such meeting. The attendance of any shareholder, in person or by proxy, at any such meeting without protesting the lack of proper notice prior to or at the commencement of the meeting shall be deemed to be a waiver by such shareholder of notice of such meeting.

                    Section 1.06. Quorum. At any meeting of share­holders, the holders of a majority in amount of the voting shares of the corporation then outstanding and entitled to vote thereat, present in person or by proxy, shall constitute a quorum for such meeting. The holders of a majority of the voting shares represented at a meeting, whether or not a quorum is present, or the Chairman of the Board, the President, or the officer of the corporation acting as chairman of the meeting, may adjourn such meeting from time to time, and if a quorum is present at such adjourned meeting any business may be transacted as if the meeting had been held as originally called.

                    Section 1.07. Votes Required. At all elections of Directors the candidates receiving the greatest number of votes shall be elected. Any other matter submitted to the share­holders for their vote shall be decided by the vote of such proportion of the shares, or of any class of shares, or of each class, as is required by law, the Articles or the Regulations.

                    Section 1.08. Order of Business. The order of busi­ness at any meeting of shareholders shall be determined by the officer of the corporation acting as chairman of such meeting unless otherwise determined by a vote of the holders of a majority of the voting shares of the corporation then out­standing, present in person or by proxy, and entitled to vote at such meeting.

                    Section 1.09. Shareholders Entitled to Vote. Each shareholder of record on the books of the corporation on the record date for determining the shareholders who are entitled to vote at a meeting of shareholders shall be entitled at such meeting to one vote for each share of the corporation standing in his name on the books of the corporation on such record date. The Directors may fix a

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record date for the determination of the shareholders who are entitled to receive notice of and to vote at a meeting of shareholders, which record date shall not be a date earlier than the date on which the record date is fixed and which record date may be a maximum of 60 days preceding the date of the meeting of shareholders.

                    Section 1.10. Cumulative Voting. If notice in writing shall be given by a shareholder to the President, a Vice President or the Secretary of the corporation, not less than forty-eight hours before the time fixed for holding a meeting of the shareholders for the purpose of electing Directors if notice of such meeting shall have been given at least ten days prior thereto, and otherwise not less than twenty-four hours before such time, that such shareholder desires that the voting at such election shall be cumulative, and if an announcement of the giving of such notice is made upon the convening of the meeting by the presiding officer or secretary of the meeting or by or on behalf of the shareholder giving such notice, each shareholder shall have the right to cumulate such voting power as he possesses and to give one candidate as many votes as is determined by multiplying the number of Directors to be elected by the number of votes to which such shareholder is entitled, or to distribute such number of votes on the same principle among two or more candidates, as he sees fit.

                    Section 1.11. Proxies. At meetings of the shareholders any shareholder of record entitled to vote thereat may be represented and may vote by a proxy or proxies appointed by an instrument in writing signed by such shareholder, but such instrument shall be filed with the secretary of the meeting before the person holding such proxy shall be allowed to vote thereunder. No proxy shall be valid after the expiration of eleven months after the date of its execution, unless the shareholder executing it shall have specified therein the length of time it is to continue in force.

                    Section 1.12. Inspectors of Election. In advance of any meeting of shareholders, the Directors may appoint inspectors of election to act at such meeting or any adjournment thereof; if inspectors are not so appointed, the officer of the corporation acting as chairman of any such meeting may make such appointment. In case any person appointed as inspector fails to appear or act, the vacancy may be filled only by appointment made by the Directors in advance of such meeting or, if not so filled, at the meeting by the officer of the corporation acting as chairman of such meeting. No other person or persons may appoint or require the appointment of inspectors of election.

ARTICLE TWO

DIRECTORS

                    Section 2.01. Authority and Qualifications. Except where the law, the Articles or the Regulations otherwise provide, all authority of the corporation shall be vested in and exercised by a Board of Directors. Directors need not be

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shareholders of the corporation.

Section 2.02. Number of Directors and Term of Office.
	(A) Until changed in accordance with the provisions of the Regulations, the number of Directors of the corporation shall be six. Each Director shall be elected to serve until the next annual meeting of shareholders and until his successor is duly elected and qualified or until his earlier resignation, removal from office, or death. The number of Directors may be fixed or changed at a meeting of the shareholders called for the purpose of electing Directors at which a quorum is present, only by the affirmative vote of the holders of not less than a majority of the voting shares which are represented at the meeting, in person or by proxy, and entitled to vote on such proposal; and, in addition, the number of directors may be fixed or changed by the directors at a meeting called and held for such purposes, at which a quorum is present. The directors who are in office may fill any director’s office that is created by an increase in the number of directors. No reduction in the number of Directors shall of itself have the effect of shortening the term of any incumbent Director.
	(B) In addition to the authority of the shareholders to fix or change the number of directors, the Directors may change the number of directors and may fill any director’s office that is created by an increase in the number of directors; provided, however, that no reduction in the number of directors shall of itself have the effect of shortening the term of any incumbent Director.
	Section 2.03. Election. At each annual meeting of shareholders for the election of Directors, the successors to the Directors whose term shall expire in that year shall be elected, but if the annual meeting is not held or if one or more of such Directors are not elected thereat, they may be elected at a special meeting called for that purpose. The election of Directors shall be by ballot whenever requested by the presid­ing officer of the meeting or by the holders of a majority of the voting shares outstanding, entitled to vote at such meeting and present in person or by proxy, but unless such request is made, the election shall be viva voce.
	Section 2.04. Removal. A Director or Directors may be removed from office, with or without assigning any cause, only by the vote of the holders of shares entitling them to exercise not less than a majority of the voting power of the corporation to elect Directors in place of those to be removed. In case of any such removal, a new Director may be elected at the same meeting for the unexpired term of each Director removed. Failure to elect a Director to fill the unexpired term of any Director removed shall be deemed to create a vacancy in the Board.
	Section 2.05. Vacancies. Any vacancy in the Board may be filled by the remaining directors, though less than a majority of the whole authorized number of directors, by the vote of a majority of their number, for the unexpired term.

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Section 2.06. Meetings. A meeting of the Directors shall be held immediately following the adjournment of each annual meeting of shareholders at which Directors are elected, and notice of such meeting need not be given. The Directors shall hold such other meetings as may from time to time be called, and such other meetings of Directors may be called only by the Chairman of the Board, the President, or any two Directors. All meetings of Directors shall be held at the principal office of the corporation in Columbus, or at such other place within or without the State of Ohio, as the Directors may from time to time determine by a resolution. Meetings of the Directors may be held through any communica­tions equipment if all persons participating can hear each other and participation in a meeting pursuant to this provision shall constitute presence at such meeting.
Section 2.07. Notice of Meetings. Notice of the time and place of each meeting of Directors for which such notice is required by law, the Articles, the Regulations or the By-Laws shall be given to each of the Directors by at least one of the following methods:
	(A)	In a writing mailed not less than three days before such meeting and addressed to the residence or usual place of business of a Director, as such address appears on the records of the corporation; or
	(B)	By telegraph, cable, radio, wireless, or a writing sent or delivered to the residence or usual place of business of a Director as the same appears on the records of the corporation, not later than the day before the date on which such meeting is to be held; or
	(C)	Personally or by telephone not later than the day before the date on which such meeting is to be held.
Notice given to a Director by any one of the methods specified in the Regulations shall be sufficient, and the method of giving notice to all Directors need not be uniform. Notice of any meeting of Directors may be given only by the Chairman of the Board, the President or the Secretary of the corporation or by the directors calling the meeting. Any such notice need not specify the purpose or purposes of the meeting. Notice of adjournment of a meeting of Directors need not be given if the time and place to which it is adjourned are fixed and announced at such meeting.
Section 2.08. Waiver of Notice. Notice of any meet­ing of Directors may be waived in writing, either before or after the holding of such meeting, by any Director, which writing shall be filed with or entered upon the records of the meeting. The attendance of any Director at any meeting of Directors without protesting, prior to or at the commencement of the meeting, the lack of proper notice, shall be deemed to be a waiver by him of notice of such meeting.
Section 2.09. Quorum. A majority of the whole

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authorized number of Directors shall be necessary to constitute a quorum for a meeting of Directors, except that a majority of the Directors in office shall constitute a quorum for filling a vacancy in the Board. The act of a majority of the Directors present at a meeting at which a quorum is present is the act of the Board, except as otherwise provided by law, the Articles or the Regulations.

                    Section 2.10. Executive Committee. The Directors may create one or more committees of the Directors, to consist of not less than three Directors, and may delegate to such committees any of any of the authority of the Directors, however conferred, other than that of filling vacancies among the Directors or in any committee of the Directors.

                    Such committees of the Directors shall serve at the pleasure of the Directors, shall act only in the intervals between meetings of the Directors, and shall be subject to the control and direction of the Directors. Each of such committees of Directors may act by a majority of its members at a meeting or by a writing or writings signed by all of its members. Meetings of the committees of the directors may be held through any communications equipment if all persons participating can hear each other and participation in a meeting pursuant to this provision shall constitute presence at such meeting.

                    Any act or authorization of an act by and such committee of the directors within the authority delegated to it, shall be as effective for all purposes as the act or authorization of the Directors. Notice of the time and place of each meeting of any committee of the directors shall be given to each of its members by at least one of the methods specified in Section 2.07 hereof. A meeting of any committee of the directors may be called only by the Chairman of the Board or the President or by a member of such committee of the directors.

                    Section 2.11. Compensation. Directors shall be entitled to receive as compensation for services rendered and expenses incurred as Directors, such amounts as the Directors may determine.

                    Section 2.12. By-Laws. The Directors may adopt, and amend from time to time, By-Laws for their own government, which By-Laws shall not be inconsistent with the law, the Articles or the Regulations.

ARTICLE THREE

OFFICERS

                    Section 3.01. Offices. The officers of the cor­poration to be elected by the Directors shall be a President, one or more Vice Presidents, as the directors may determine, a Secretary; a Treasurer and such other officers and assistant officers as the Directors may from time to time elect. If the Directors elect a Chairman of the Board, he must be a Director. Officers need not be shareholders of the corporation, and may be paid such compensation as the Directors may determine. Any two or

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more offices may be held by the same person, but no officer shall execute, acknowledge, or verify any instrument in more than one capacity if such instrument is required by law, the Articles, the Regulations or the By-Laws to be executed, acknowledged, or verified by two or more officers.

                    Section 3.02. Tenure of Office. The officers of the corporation shall hold office at the pleasure of the Directors. Any officer of the corporation may be removed, either with or without cause, at any time, by the affirmative vote of a majority of all the Directors then in office; such removal, however, shall be without prejudice to the contract rights, if any, of the person so removed.

                    Section 3.03. Duties of the Chairman of the Board. The Chairman of the Board, if any, shall preside at all meetings of the Directors. He shall have such other powers and duties as the Directors shall from time to time assign to him.

                    Section 3.04. Duties of the President. The President shall be the chief executive officer of the corporation and shall exercise supervision over the business of the cor­poration and shall have, among such additional powers and duties as the Directors may from time to time assign to him, the power and authority to sign all certificates evidencing shares of the corporation and all deeds, mortgages, bonds, contracts, notes and other instruments requiring the signature of the President of the corporation. It shall be the duty of the President to preside at all meetings of shareholders.

                    Section 3.05. Duties of the Vice Presidents. In the absence of the President, or in the event of his inability or refusal to act, the Vice President, if any, (or in the event there be more than one Vice President, the Vice Presidents in the order designated, or in the absence of any designation, then in the order of their election) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all restrictions upon the President. The Vice Presidents shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

                    Section 3.06. Duties of the Secretary. It shall be the duty of the Secretary, or of an Assistant Secretary, if any, in case of the absence or inability to act of the Secre­tary, to keep minutes of all the proceedings of the share­holders and the Directors and to make a proper record of the same, which shall be attested by him; to sign all certificates for shares, and all deeds, mortgages, bonds, contracts, notes and other instruments requiring his signature on behalf of the corporation, to perform such other duties as may be required by law, the Articles or the Regulations; to keep such books as may be required by the Directors; to file all reports to states and to the federal government; to perform such other and further duties as may from time to time be assigned to him by the Directors or the President; and to

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deliver all books, paper and property of the corporation in his possession to his successor, or to the President.

                    Section 3.07. Duties of the Treasurer. The Treas­urer, or an Assistant Treasurer, if any, in case of the absence or inability to act of the Treasurer, shall receive and safely keep in charge all money, bills, notes, choses in action, securities, deeds, leases, mortgages and similar property belonging to the corporation, and shall do with or disburse the same as directed by the President or the Directors; shall keep an accurate account of the finances and business of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, stated capital and shares, together with such other accounts as may be required and hold the same open for inspection and examination by the Directors; shall give bond in such sum with such security as the Directors may require for the faithful performance of his duties; shall, upon the expiration of his term of office, deliver all money and other property of the corporation in his possession or custody to his successor or the President; and shall perform such other duties as from time to time may be assigned to him by the Directors.

ARTICLE FOUR

SHARES

                    Section 4.01. Certificates. Certificates evidenc­ing ownership of shares of the corporation shall be issued to those entitled to them. Each certificate evidencing shares of the corporation shall bear a distinguishing number; the signatures of the Chairman of the Board, the President, or a Vice President, and of the Secretary or an Assistant Secretary (except that when any such certificate is countersigned by an incorporated transfer agent or registrar, such signatures may be facsimilie, engraved, stamped or printed); and such recitals as may be required by law. Certificates evidencing shares of the corporation shall be of such tenor and design as the Directors may from time to time adopt and may bear such recitals as are permitted by law.

                    Section 4.02. Restriction on Transfer of Shares. No transfer, sale, assignment, pledge, encumbrance or other disposition of the outstanding shares of the corporation by a shareholder during his lifetime shall be valid or effective unless the consideration therefor shall be cash or cash and terms and the seller complies fully with the obligation and requirements of this section.

                     (A) In the event that any shareholder desires to transfer, sell, assign, pledge, encumber or otherwise dispose of any shares of the corporation subject to the restrictions contained herein, he shall give written notice to the corpor­ation by certified mail directed to its principal office, which notice shall be deemed given when received by the corporation. The notice shall set forth the number of shares he desires to dispose of, and the price per share in cash or cash and terms he has been offered by a bona fide offeror for those shares. Within five days of receipt of such notice, the

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corporation, by its president, shall notify each other shareholder of the receipt and contents of the notice, by certified mail to each shareholder’s address of record with the corporation.The corporation shall have the option, for a period of thirty days after receipt of said notice, to purchase the shares referred to in said notice, or any portion thereof, at the lower of either (1) their book value, as defined below, or (2) the amount, per share, of the bona fide offer in cash or cash and terms offered to the selling shareholder and specified in said notice. In the event that the corporation exercises its option, the purchase price shall be paid upon the same terms as contained in the bona fide offer received by the shareholder, unless otherwise agreed between the corporation and the selling shareholder.
(B) Each shareholder shall have the option for a period of thirty days after the expiration of the thirty day period referred to in Section 4.02(B) to purchase up to his proportionate share of the shares offered which are not purchased by the corporation, upon the same terms as applied to the corporation under Section 4.02(B). “Proportionate share”, as used above, is determined by multiplying the number of shares offered and not purchased by the corporation by a fraction, the numerator of which is the number of shares owned by the shareholder whose proportionate share is being determined and the denominator of which is the total number of shares owned by all shareholders who choose to exercise their options.
(C) In the event that any of the shares offered remain available after the expiration of the options described in Sections 4.02(B) and 4.02(C) hereof, the selling shareholder may then sell such shares, but only upon the same terms and conditions as stated in the notice to the corporation pursuant to Section 4.02(A) hereof.
(D) In the event that any transfer, sale, assignment, pledge, encumbrance or other disposition of any shares of the corporation would, alone or together with other related, previous, simultaneous or proposed transfers, result in a change of “control” of the corporation within the meaning of the Securities Exchange Act of 1934 and the regulations thereunder, the shareholder must first obtain the written consent of Wendy’s to such proposed transfer.
(E) “Book Value”, as used above, shall mean the book value of each share in the corporation as of the end of the month preceding date of notice of desire to sell, determined in accordance with sound accounting practice and observing the following requirements:
	(1)	No allowance of any kind shall be made for good will, trade name or any similar intangible asset.
	(2)	All accounts payable shall be taken at the face amount thereof less discounts deductible therefrom, and all accounts receivable shall be taken at the face amount thereof, less discounts of the customers and a reasonable reserve for bad

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		debts.
	(3)	All machinery, fixtures, and equipment shall be taken at the valuation appearing on the books of the corporation.
	(4)	Inventory of merchandise and supplies shall be computed at cost or market value, whichever is lower.
	(5)	All unpaid and accrued taxes shall be deducted as liabilities.
(G) Subject to the approval of the Board of Directors, the restrictions and obligations of this Section 4.02 shall not apply to any transfer between a shareholder and the members of his immediate family.
(H) The restrictions and obligations of this Section 4.02 shall be binding upon the executors, estates, heirs and transferees of each shareholder.
(I) The shareholders and the corporation may enter into such other stock restriction agreements as they may desire; however, no such other agreement shall modify or conflict with the terms of this Section 4.02.
(J) Each stock certificate issued by the corporation shall be endorsed as follows:
	THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN ADDITIONAL RESTRICTIONS REGARDING THEIR TRANSFERABILITY CONTAINED IN THE CODE OF REGULATIONS OF THE ISSUER, A COPY OF WHICH REGULATIONS WILL BE MAILED TO SHAREHOLDERS WITHOUT CHARGE WITHIN FIVE DAYS OF RECEIPT OF A WRITTEN REQUEST THEREFOR.
Section 4.03. Transfers. Where a certificate evidencing a share or shares of the corporation is presented to the corporation or its proper agents with a request to register transfer, the transfer shall be registered as requested if:
	(A)	An appropriate person signs on each certificate so presented or signs on a separate document an assignment or transfer of shares evidenced by each such certificate, or signs a power to assign or transfer such shares, or when the signature of an appropriate person is written without more on the back of each such certificate; and
	(B)	Reasonable assurance is given that the indorsement of each appropriate person is genuine and effective; the corporation or its agents may refuse to register a transfer of shares unless the signature of each appropriate person is guaranteed by a commercial bank or trust company having an office or a correspondent in the City of New York or by a firm having membership in

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		the New York Stock Exchange; and
	(C)	All applicable laws relating to the collection of transfer or other taxes have been complied with; and
	(D)	The corporation or its agents are not otherwise required or permitted to refuse to register such transfer.
Section 4.04. Transfer Agents and Registrars. The Directors may appoint one or more agents to transfer or to register shares of the corporation, or both.
Section 4.05. Lost, Wrongfully Taken or Destroyed Certificates. Except as otherwise provided by law, where the owner of a certificate evidencing shares of the corporation claims that such certificate has been lost, destroyed or wrongfully taken, the Directors must cause the corporation to issue a new certificate in place of the original certificate if the owner:
	(A)	So requests before the corporation has notice that such original certificate has been acquired by a bona fide purchaser; and
	(B)	Files with the corporation, unless waived by the Directors, an indemnity bond, with surety or sureties satisfactory to the corporation, in such sum as the Directors may, in their discretion, deem reasonably sufficient as indemnity against any loss or liability that the corpora­tion may incur by reason of the issuance of each such new certificate; and
	(C)	Satisfies any other reasonable requirements which may be imposed by the Directors, in their discretion.

ARTICLE FIVE

INDEMNIFICATION AND INSURANCE

                    Section 5.01. Indemnification. The corporation shall indemnify any person who was or is a party or is threat­ened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, adminis­trative, or investigative (other than an action threatened or instituted directly by the corporation) by reason of the fact that he is or was a Director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in con­nection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct

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was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, he had reasonable cause to believe that his conduct was unlawful.

                    Section 5.02. Discretionary Indemnification. The corporation may indemnify or agree to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit which is threatened or instituted by the corporation directly (rather than a derivative action in the right of the corporation) to procure a judgment in its favor by reason of the fact that he is or was a Director, officer, employee, or agent of the corpora­tion, or is or was serving at the request of the corporation as a director, trustee, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no such indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or miscon­duct in the performance of his duty to the corporation unless and only to the extent that the Court of Common Pleas of Franklin County, Ohio or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as such Court of Common Pleas or such other court shall deem proper.

                    Section 5.03. Indemnification for Expenses. To the extent that a director, trustee, officer, employee or agent has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 5.02, or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.

                    Section 5.04. Determination Required. Any indemni­fication under Sections 5.01 and 5.02 (unless ordered by a court) shall be made by the corporation only upon a determina­tion that the indemnification of the director, trustee, officer, employee or agent is proper in the circumstances be­cause he has met the applicable standard of conduct set forth in Sections 5.01 and 5.02. Such determination shall be made (A) by the Board of Directors by a majority vote of a quorum consisting of Directors who were not and are not parties to, or threatened with, such action, suit or proceeding or (B) if such a quorum is not obtainable or if a majority of a quorum of disinterested Directors so directs, in a written opinion by independent legal counsel, or (C) by the

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shareholders. Any determination made by the disinterested Directors or by indep­endent legal counsel under this Section 5.04 to provide indem­nity under Section 5.01 to a person threatened or sued in the right of the corporation (derivatively) shall be promptly com­municated to the person who threatened or brought the derivative action or suit in the right of the corporation, and such person shall have the right, within 10 days after receipt of such notification, to petition the Court of Common Pleas of Franklin County, Ohio or the court in which action or suit was brought to review the reasonableness of such determination.

                    Section 5.05. Advances for Expenses. Expenses (in­cluding attorneys’ fees) incurred in defending any civil or criminal action, suit, or proceeding referred to in Sections 5.01 and 5.02 may be paid by the corporation in advance of the final disposition of such action, suit or proceeding as auth­orized by the Board of Directors in the specific case upon receipt of an undertaking by or on behalf of the director, trustee, officer, employee, or agent to repay such amount, unless it shall ultimately be determined that he is entitled to be indemnified by the corporation as authorized in this Article Five.

                    Section 5.06. Article Five Not Exclusive. The in­demnification provided by this Article Five shall not be deemed exclusive of any other rights to which those seeking indemni­fication may be entitled under the Articles or the Regulations or any agreement, vote of shareholders or disinterested direc­tors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, trustee, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.

                    Section 5.07. Insurance. The corporation may purchase and maintain insurance on behalf of any person who is or was a Director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, trustee, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this Article Five.

                    Section 5.08. Definition of the Corporation”. As used in this Article Five, references to “the corporation” include all constituent corporations in a consolidation or merger and the new or surviving corporation, so that any person who is or was a director, trustee, officer, employee or agent of such a constituent corporation, or is or was serving at the request of such constituent corporation as a director, trustee, officer, employee, or agent of another corporation, partner­ship, joint venture, trust, or other enterprise, shall stand in the same position under the provisions of this Article Five with respect to the new or surviving corporation as he would if he had served the new or surviving corporation in

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the same capacity.

ARTICLE SIX

MISCELLANEOUS

                    Section 6.01. Amendments. The Regulations may be amended, or new regulations may be adopted, at a meeting of shareholders held for such purpose, only by the affirmative vote of the holders of shares entitling them to exercise not less than 2/3 of the voting power of the corporation on such proposal, or without a meeting by the written consent of the holders of shares entitling them to exercise not less than a majority of the voting power of the corporation on such proposal.

                    Section 6.02. Action by Shareholders or Directors Without a Meeting. Anything contained in the Regulations to the contrary notwithstanding, any action which may be auth­orized or taken at a meeting of the shareholders or of the Directors or of a committee of the Directors, as the case may be, may be authorized or taken without a meeting with the affirmative vote or approval of, and in a writing or writings signed by, all the shareholders who would be entitled to notice of a meeting of the shareholders, or all the Directors, or all the members of such committee of the Directors, respectively, which writings shall be filed with or entered upon the records of the corporation.

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