EXHIBIT B
CODE OF REGULATIONS
OF
OHIO CASUALTY CORPORATION
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1. Annual Meetings. The annual meeting of the
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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 third Wednesday
in April of each year, or on such other date as may from time to time be
designated by the Board of Directors.
Section 2. Calling of Meetings. Meetings of the shareholders may
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be called only by the Chairman of the Board, by the President, by the
Secretary, by the directors by action at a meeting, by a majority of the
directors acting without a meeting or by the holders of at least 50% of all
shares outstanding and entitled to vote thereat.
Section 3. Place of Meetings. Meetings of shareholders may be
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held at any place within or without the State of Ohio. Meetings of
shareholders may be held in any manner or place, if any, determined by the
directors and permitted by Ohio law.
Section 4. Notice of Meetings.
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(A) Written notice stating the time, place, if any, and purpose or
purposes of a meeting of the shareholders, and the means, if any, by which
shareholders can be present and vote at the meeting through the use of
communications equipment, and any other matters related to the conduct of the
meeting required by Ohio law to be specified in such notice shall be given by
or at the direction of the Chairman of the Board, the
President or the Secretary by personal delivery, by mail, by overnight
delivery service or, if authorized by the shareholder to whom notice is given,
any other means of communication. Any such notice shall be given not less
than seven nor more than sixty days before the date of the meeting to each
shareholder of record entitled to notice of the meeting. If mailed or sent by
an overnight delivery service, such notice shall be sent to the shareholder at
the shareholder's address as it appears on the records of the corporation. If
sent by another means of communication authorized by the shareholder, notice
shall be sent to the address furnished by the shareholder for such
transmissions.
(B) Notice of adjournment of a meeting need not be given if the
time and place, if any, to which it is adjourned and the means, if any, by
which shareholders can be
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present and vote at the adjourned meeting through the use of communications
equipment are fixed and announced at the meeting.
(C) 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 these 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.
(D) Following the receipt by the President or the Secretary of a
request in writing, specifying the purpose or purposes for which the person or
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 person or 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 105 days
after the receipt of such request, as such officer may fix. If such notice is
not given within 45 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 these Regulations.
Section 5. Waiver of Notice. Notice of the time, place, if any,
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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, by proxy or by
the use of communications equipment, 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 the shareholder of notice of such meeting.
A telegram, cablegram, electronic mail, or an electronic or other transmission
capable of authentication that appears to have been sent by a person described
in this Section and that contains a waiver by such person is a writing for
purposes of this Section 5.
Section 6. Quorum. At any meeting of shareholders, the holders
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of shares entitling them to exercise a majority of the voting power of the
corporation then outstanding and entitled to vote thereat, present in person,
by proxy, or by the use of communications equipment, shall constitute a quorum
for such meeting. The holders of a majority of the voting power represented
at a meeting, whether or not a quorum is present, or the Chairman of the
Board, the President, the Secretary, or the officer of the corporation acting
as chairman of the meeting, may adjourn such meeting from time to time, and at
such adjourned meeting any business may be transacted as if the meeting had
been held as originally called.
Section 7. Votes Required. At all elections of directors, the
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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,
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or of any class of shares, or of each class, as is required by law, the
Articles or the Code of Regulations.
Section 8. Order of Business. The order of business at any
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meeting of the 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, by proxy or by the use of communications
equipment.
Section 9. Shareholders Entitled to Vote. Each shareholder of
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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 record date for the determination of the shareholders who
are entitled to receive notice of or 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 120 days
preceding the date of the meeting of shareholders.
Section 10. Proxies. At meetings of the shareholders, any
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shareholder of record entitled to vote may be represented and may vote by
proxy or proxies appointed by an instrument in writing signed by such
shareholder or appointed in any manner permitted by Ohio law. Any such
instrument in writing or record of any such appointment shall be filed with or
received by the secretary of the meeting before the person holding such proxy
shall be allowed to vote thereunder. No appointment of a proxy is valid after
the expiration of eleven months after it is made unless the writing or other
communication which appoints such proxy specifies the date on which it is to
expire or the length of time it is to continue in force.
Section 11. Inspectors of Election. In advance of any meeting of
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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.
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ARTICLE II
DIRECTORS
Section 1. Authority. Except where the law, the Articles or
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these Regulations otherwise provide, all authority of the corporation shall be
vested in and exercised by its directors. Directors need not be shareholders
of the corporation.
Section 2. Number of Directors and Terms of Office.
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(A) Until changed in accordance with the provisions of the Code of
Regulations, the number of directors of the corporation shall be twelve (12).
The number of directors may be fixed or changed (i) at a meeting of
shareholders called for the purpose of electing directors at which a quorum is
present or (ii) by action of a majority of the whole authorized number of
directors, but no reduction in the number of directors shall of itself have
the effect of shortening the term of any incumbent director.
(B) Until changed in accordance with law, the Board of Directors
shall be divided into three (3) classes consisting of four (4) directors each
(Class I, Class II and Class III). If the authorized number of directors is
increased or decreased at any time, the directors may, by a resolution adopted
by a majority of the whole authorized number of directors, determine the
number of directors to be added or subtracted, as the case may be, from any
class or classes of directors, and the effect of such increase or decrease
need not be uniform; provided, however, (a) that the authorized number of
directors of any class shall not exceed by more than four (4) the authorized
number of directors of any other class, and (b) no class shall consist of
fewer than three (3) directors. The election of each class of directors shall
be a separate election. The term of office of Class I shall expire at the
annual meeting of shareholders for 1988; the term of office of Class II shall
expire at the annual meeting of shareholders for 1989; the term of office of
Class III shall expire at the annual meeting of shareholders for 1987; and at
each annual meeting of shareholders commencing with the year 1987, the
successors to the directors of the class whose term shall expire in that year
shall be elected for a term of three years, so that the term of office of one
class of directors shall expire in each year commencing with the year 1987;
provided, however, that each director elected at any time shall hold office
until his successor is duly elected and shall qualify, or until his earlier
death, resignation or removal.
Section 3. Nomination and Election.
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(A) Any nominee for election as a director of the corporation may
be proposed only by the Board of Directors or by any shareholder entitled to
vote for the election of directors. No person, other than a nominee proposed
by the Board of Directors, may be nominated for election as a director of the
corporation unless such person shall have been proposed in a written notice,
delivered or mailed by first-class United States mail, postage prepaid, to the
Secretary of the corporation at its principal office. In the case of a
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nominee proposed for election as a director at an annual meeting of
shareholders, such written notice of a proposed nominee shall be received by
the Secretary of the corporation on or before the later of (i) February 1,
immediately preceding such annual meeting, or (ii) the sixtieth (60th) day
prior to the first anniversary of the most recent annual meeting of
shareholders of the corporation held for the election of directors; provided,
however, that if the annual meeting for the election of directors in any year
is not held on or before the thirty-first (31st) day next following such
anniversary, then the written notice required by this subparagraph (A) shall
be received by the Secretary within a reasonable time prior to the date of
such annual meeting. In the case of a nominee proposed for election as a
director at a special meeting of shareholders at which directors are to be
elected, such written notice of a proposed nominee shall be received by the
Secretary of the corporation no later than the close of business of the
seventh day following the day on which notice of the special meeting was
mailed to shareholders. Each such written notice of a proposed nominee shall
set forth (1) the name, age, business or residence address of each nominee
proposed in such notice, (2) the principal occupation or employment of each
such nominee, and (3) the number of common shares of the corporation owned
beneficially and/or of record by each such nominee and the length of time any
such shares have been so owned.
(B) If a shareholder shall attempt to nominate one or more persons
for election as a director at any meeting at which directors are to be elected
without having identified each such person in a written notice given as
contemplated by, and/or without having provided therein the information
specified in subparagraph (A) of this Section, each such attempted nomination
shall be invalid and shall be disregarded unless the person acting as chairman
of the meeting determines that the facts warrant the acceptance of such
nomination.
(C) The election of directors shall be by ballot whenever requested
by the person acting as chairman 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 by voice vote.
Section 4. Removal. A director or directors may be removed from
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office, with or without assigning any cause, by the vote of the holders of
shares entitling them to exercise not less than eighty percent (80%) 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 5. Vacancies. Vacancies, and newly created directorships
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resulting from any increase in the authorized number of directors, may be
filled by a majority of the directors then in office, though less than a
majority of the whole authorized number of directors, or in any other manner
provided by law, the Articles or the Code of Regulations.
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Section 6. Meetings. A meeting of the directors shall be held
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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, the Secretary or any four directors.
Meetings of directors may be held in any manner or place, if any, permitted by
law.
Section 7. Notice of Meetings. Notice of the place, if any, and
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time of each meeting of directors for which the requirement of notice has not
been dispensed with by the Articles, these Regulations or the Bylaws (as
defined in Section 12) shall be given to each of the directors by at least one
of the following methods:
(A) By mail, telegram, cablegram, overnight delivery service, or by
any other means of communication authorized by the director, not later than
the day before the date on which such meeting is to be held; or
(B) 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 these
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. Unless otherwise required by law, 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 place, if any, and time to which
it is adjourned are fixed and announced at the meeting.
Section 8. Waiver of Notice. Notice of any meeting of directors
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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 such director of notice of
such meeting. A telegram, cablegram, electronic mail, or an electronic or
other transmission capable of authentication that appears to have been sent by
a person and that contains a waiver by that person is a writing for purposes
of this Section 8.
Section 9. Quorum. A majority of the whole authorized number of
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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 Code of
Regulations.
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Section 10. Executive Committee. The directors may create an
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Executive Committee or any other committee of directors, to consist of not
less than three directors, and may authorize the delegation to such Executive
Committee or other committees of any of the authority of the directors,
however conferred, other than that of filling vacancies among the directors or
in the Executive Committee or in any other committee of the directors.
Such Executive Committee or any other committee of 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. Such Executive Committee or other committee 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. A telegram, cablegram, electronic
mail, or an electronic or other transmission capable of authentication that
appears to have been sent by a director and that contains an affirmative vote
or approval of that director is a signed writing for the purposes of this
Section. The date on which that telegram, cablegram, electronic mail, or
electronic or other transmission is sent is the date on which the writing is
signed.
Any act or authorization of an act by the Executive Committee or any
other committee within the authority delegated to it shall be as effective for
all purposes as the act or authorization of the directors. No notice of a
meeting of the Executive Committee or of any other committee of directors
shall be required. A meeting of the Executive Committee or any other
committee of directors may be called by the Chairman of the Board, the
President or by a member of the Executive Committee or such other committee of
directors, as the case may be.
Section 11. Compensation. Directors shall be entitled to receive
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as compensation for services rendered and expenses incurred as directors, such
amounts as the directors may determine.
Section 12. Bylaws. The directors may adopt, and amend from time
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to time, Bylaws for their own government, which Bylaws shall not be
inconsistent with the law, the Articles or the Code of Regulations.
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ARTICLE III
OFFICERS
Section 1. Officers, Term and Compensation. The officers of the
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corporation to be elected by the directors shall be a Chief Executive Officer,
a President (who may also be the Chief Executive Officer), a Secretary and a
Treasurer and, if desired, one or more Vice Presidents (which may include one
or more Executive Vice Presidents and/or Senior Vice Presidents) as the
directors may from time to time determine, one or more Assistant Secretaries,
one or more Assistant Treasurers and such other officers as the directors may
from time to time elect. The officers of the corporation may also include a
Chairman of the Board, who shall 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 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,
these Regulations or the Bylaws to be executed, acknowledged or verified by
two or more officers.
Section 2. Tenure of Office. The officers of the corporation
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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 of the
persons so removed, if any.
Section 3. Duties of the Chairman of the Board. The Chairman of
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the Board, if any, shall preside at all meetings of the directors and at all
meetings of the shareholders, and shall have such other powers and duties as
the directors shall from time to time assign to the Chairman of the Board.
Section 4. Duties of the Chief Executive Officer. The Chief
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Executive Officer shall be the active executive officer of the corporation and
shall exercise supervision over the other officers, subject, however, to the
control of the directors. The Chief Executive Officer shall have such other
powers and duties as the directors shall from time to time assign to the Chief
Executive Officer. In the absence of the Chairman of the Board, or if there
be no Chairman of the Board, the Chief Executive Officer shall preside at
meetings of shareholders.
Section 5. Duties of the President. The President shall, subject
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to the control of the directors and, if there be one who is not also the
President, the Chief Executive Officer, exercise supervision over the business
of the corporation and shall have, among such additional powers and duties as
the directors or, if there be one who is not also the President, the Chief
Executive Officer may from time to time assign, including the power and
authority to sign all certificates evidencing shares of the corporation,
deeds, mortgages, bonds, contracts, notes and other instruments requiring the
signature of the President of the corporation. In the absence of the Chairman
of the Board, if there be
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one, and the Chief Executive Officer if there be one who is not also the
President, it shall be the duty of the President to preside at all meetings
of shareholders.
Section 6. Duties of the Vice Presidents. The Vice Presidents
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(which may include one or more Executive Vice Presidents and/or Senior Vice
Presidents as determined by the directors) shall perform such duties as may
from time to time be assigned to them by the directors, the Chief Executive
Officer or the President. At the request of the President, or in the absence,
death or disability of the President, the Vice President (or in the event
there be more than one Vice President, the Vice Presidents in the order
designated) authorized to exercise the authority of the President may perform
all the duties of the President, and when so acting, shall have all the powers
of the President.
Section 7. Duties of the Secretary. It shall be the duty of the
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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 the Secretary; to sign all certificates for shares,
and all deeds, mortgages, bonds, contracts, notes and other instruments
requiring the Secretary's signature on behalf of the corporation, to perform
such other duties as may be required by law, the Articles or these
Regulations; to keep such books as may be required by the directors; to
perform such other and further duties as may from time to time be assigned to
the Secretary by the directors, the Chief Executive Officer or the President;
and to deliver all books, paper and property of the corporation in the
possession of the Secretary to such person's successor, to the Chief Executive
Officer or to the President.
Section 8. Duties of the Treasurer. The Treasurer or an
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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 Chief Executive Officer, the President or the directors; shall
keep an accurate account of the finances and business of the corporation, 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 the Treasurer's duties; shall, upon the expiration of
the Treasurer's term of office, deliver all money and other property of the
corporation in the Treasurer's possession or custody to the Treasurer's
successor, the Chief Executive Officer or the President; and shall perform
such other duties as from time to time may be assigned to the Treasurer by the
directors.
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ARTICLE IV
SHARES
Section 1. Certificates. Certificates evidencing ownership of
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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 facsimile, engraved, stamped or printed),
and such recitals as may be required or permitted by law. Certificates
evidencing shares of the corporation shall be of such tenor and design as the
directors may from time to time adopt.
Section 2. Transfers. Where a certificate evidencing a share or
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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:
1. 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
2. Reasonable assurance is given that the endorsement 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 the New York Stock Exchange; and
3. All applicable laws relating to the collection of transfer or
other taxes have been complied with; and
4. The corporation or its agents are not otherwise required or
permitted to refuse to register such transfer.
Section 3. Transfer Agents and Registrars. The directors may
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appoint one or more agents to transfer or to register shares of the
corporation, or both.
Section 4. Lost, Wrongfully Taken or Destroyed Certificates.
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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:
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1. So requests before the corporation has notice that such
original certificate has been acquired by a bona fide purchaser; and
2. Files with the corporation any 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
3. Satisfies any other reasonable requirements which may be
imposed by the directors, in their discretion.
ARTICLE V
INDEMNIFICATION AND INSURANCE
Section 1. Mandatory Indemnification. The corporation shall
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indemnify (A) any officer or director of the corporation and (B) any person
(including an officer or director of the corporation) who has served or is
serving at the request of the corporation as a director, trustee or officer of
another corporation (domestic or foreign, nonprofit or for profit),
partnership, joint venture, trust or other enterprise 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 (including, without limitation, any action threatened or
instituted by or in the right of the corporation) by reason of the fact that
he is or was a director, trustee, 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 (domestic
or foreign, nonprofit or for profit), partnership, joint venture, trust, or
other enterprise, against expenses (including, without limitation, attorneys'
fees, filing fees, court reporters' fees and transcript costs), 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, he had no reasonable cause to believe his conduct was unlawful. A
person claiming indemnification under this Section 1 shall be presumed in
respect of any act or omission giving rise to such claim for indemnification,
to have 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 matter, to have had no reasonable cause to believe his conduct was
unlawful, and 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, rebut such presumption.
Section 2. Court-Approved Indemnification. Anything contained in
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the Regulations or elsewhere to the contrary notwithstanding:
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(A) the corporation shall not indemnify (i) any officer or director
of the corporation, or (ii) any person (including an officer or director of
the corporation) who has served or is serving at the request of the
corporation as a director, trustee, or officer of another corporation
(domestic or foreign, nonprofit or for profit), partnership, joint venture,
trust or other enterprise who was a party to any completed action or suit
instituted by or 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 (domestic or foreign, nonprofit or for profit), partnership, joint
venture, trust or other enterprise, in respect of any claim, issue or matter
asserted in such action or suit as to which he shall have been adjudged to be
liable for gross negligence or misconduct (other than negligence) in the
performance of his duty to the corporation unless and only to the extent that
the Court of Common Pleas of Butler County, Ohio or the court in which such
action or suit was brought shall determine upon application that despite such
adjudication of liability, and in view of all the circumstances of the case,
he is fairly and reasonably entitled to such indemnity as such Court of Common
Pleas or such other court shall deem proper; and
(B) the corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as contemplated by
this Section 2.
Section 3. Indemnification for Expenses. Anything contained in
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the Regulations or elsewhere to the contrary notwithstanding, to the extent
that an officer or director of the corporation or any person (including an
officer or director of the corporation) who has served or is serving at the
request of the corporation as a director, trustee or officer of another
corporation (domestic or foreign, nonprofit or for profit), partnership, joint
venture, trust or other enterprise has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section
1, or in defense of any claim, issue or matter therein, he shall be promptly
indemnified by the corporation against expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and transcript
costs) actually and reasonably incurred by him in connection therewith.
Section 4. Determination Required. Any indemnification required
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under Section 1 and not precluded under Section 2 shall be made by the
corporation only upon a determination that such indemnification is proper in
the circumstances because the person has met the applicable standard of
conduct set forth in Section 1. Such determination may be made only (A) by a
majority vote of a quorum consisting of directors of the corporation who were
not and are not parties to, or threatened with, any 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 other than an attorney, or a firm having associated
with it an attorney, who has been retained by or who has performed services
for the corporation, or any person to be indemnified, within the past five
years or (C) by the shareholders or (D) by the Court of Common Pleas of Butler
County, Ohio or (if the corporation is a party thereto) the court in which
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such action, suit or proceeding was brought, if any; any such determination
may be made by a court under subparagraph (D) of this Section at any time
(including, without limitation, any time before, during or after the time when
any such determination may be requested of, be under consideration by or have
been denied or disregarded by the disinterested directors under subparagraph
(A) or by independent legal counsel under subparagraph (B) or by the
shareholders under subparagraph (C) of this Section); and no failure for any
reason to make any such determination, and no decision for any reason to deny
any such determination, by the disinterested directors under subparagraph (A)
or by independent legal counsel under subparagraph (B) or by shareholders
under subparagraph (C) of this Section shall be evidence in rebuttal of the
presumption recited in Section 1. Any determination made by the disinterested
directors under subparagraph (A) of this Section or by independent legal
counsel under subparagraph (B) of this Section to make indemnification in
respect of any claim, issue or matter asserted in an action or suit threatened
or brought by or in the right of the corporation shall be promptly
communicated to the person who threatened or brought such action or suit, and
within ten (10) days after receipt of such notification such person shall have
the right to petition the Court of Common Pleas of Butler County, Ohio or the
court in which such action or suit was brought, if any, to review the
reasonableness of such determination.
Section 5. Advances for Expenses. Expenses (including, without
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limitation, attorneys fees, filing fees, court reporters' fees and transcript
costs) incurred in defending any action, suit or proceeding referred to in
Section 1 shall be paid by the corporation in advance of the final disposition
of such action, suit or proceeding to or on behalf of the officer, Director or
other person entitled to indemnity under Section 1 promptly as such expenses
are incurred by him, but only if such officer, Director or other person shall
first agree, in writing, to repay all amounts so paid in respect of any claim,
issue or other matter asserted in such action, suit or proceeding in defense
of which he shall not have been successful on the merits or otherwise:
(A) unless it shall ultimately be determined as provided in Section
4 that he is not entitled to be indemnified by the corporation as provided
under Section 1; or
(B) if, in respect of any claim, issue or other matter asserted by
or in the right of the corporation in such action or suit, he shall have been
adjudged to be liable for gross negligence or misconduct (other than
negligence) in the performance of his duty to the corporation, unless and only
to the extent that the Court of Common Pleas of Butler County, Ohio or the
court in which such action or suit was brought shall determine upon
application that, despite such adjudication of liability, and in view of all
the circumstances, he is fairly and reasonably entitled to all or part of such
indemnification.
Section 6. Article V Not Exclusive. The indemnification provided
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by this Article V shall not be deemed exclusive of any other rights to which
any person seeking indemnification may be entitled under the Articles or the
Regulations or any agreement, vote of shareholders of the corporation or
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such
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office, and shall continue as to a person who has ceased to be an officer or
director of the corporation and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
Section 7. Insurance. The corporation may purchase and maintain
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insurance on behalf of any person who is or was a director, trustee, 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 (domestic or foreign, nonprofit or for profit), 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 obligation or the power to
indemnify him against such liability under the provisions of this Article V.
Section 8. Certain Definitions. For purposes of this Article V,
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and as examples and not by way of limitation:
(A) A person claiming indemnification under this Article V shall be
deemed to have been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 1, or in defense of any
claim, issue or other matter therein, if such action, suit or proceeding shall
be terminated as to such person, with or without prejudice, without the entry
of a judgment or order against him, without a conviction of him, without the
imposition of a fine upon him, and without his payment or agreement to pay any
amount in settlement thereof (whether or not any such termination is based
upon a judicial or other determination of lack of merit of the claims made
against him or otherwise results in a vindication of him); and
(B) References to an "other enterprise" shall include employee
benefit plans; references to a "fine" shall include any excise taxes assessed
on a person with respect to an employee benefit plan; and references to
"serving at the request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which imposes duties
on, or involves services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he reasonably believed to be in
the best interests of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to the
best interest of the corporation" within the meaning of that term as used in
this Article V.
Section 9. Venue. Any action, suit or proceeding to determine a
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claim for indemnification under this Article V may be maintained by the person
claiming such indemnification, or by the corporation, in the Court of Common
Pleas of Butler County, Ohio. The corporation and (by claiming such
indemnification) each such person consent to the exercise of jurisdiction over
its or his person by the Court of Common Pleas of Butler County, Ohio in any
such action, suit or proceeding.
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ARTICLE VI
SEAL
The seal of the corporation shall be circular, about two inches in
diameter, with the name of the corporation engraved around the margin and the
word "SEAL" engraved across the center.
ARTICLE VII
FISCAL YEAR
The fiscal year shall begin on the first day of January and end on the
31st day of December in each year, or on such other dates as may from time to
time be established by the directors.
ARTICLE VIII
MISCELLANEOUS
Section 1. Amendments. These Regulations may be amended, or new
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regulations may be adopted, at a meeting of shareholders held for such
purpose, or without a meeting by the written consent of the holders of shares
entitling them to exercise not less than all (100%) of the voting power of the
corporation on such proposal.
Section 2. Action by Shareholders or Directors Without a Meeting.
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Anything contained in these Regulations to the contrary notwithstanding,
except as provided in Section 1 of this Article VIII, 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 writing or
writings signed by, all the shareholders who would be entitled to notice of a
meeting of shareholders held for such purpose, or all the directors, or all
the members of such committee of directors, respectively, which writings shall
be filed with or entered upon the records of the corporation. A telegram,
cablegram, electronic mail, or an electronic or other transmission capable of
authentication that appears to have been sent by a person described in this
Section and that contains an affirmative vote or approval of that person is a
signed writing for the purposes of this Section. The date on which that
telegram, cablegram, electronic mail, or electronic or other transmission is
sent is the date on which the writing is signed.
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