Exhibit 99
CODE OF REGULATIONS
OF
OHIO CASUALTY CORPORATION
(reflecting amendments through July 28, 2005)
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1. 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 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 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
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.
(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
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, 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
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
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
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
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
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 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
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.
(A) Until changed in accordance with the provisions of the Code
of Regulations, the number of directors of the corporation shall be twelve
(12) [Number of directors of the corporation was reduced to eleven (11) by
unanimous action of the Board of Directors at the meeting of directors held
on February 18, 2004; Number of directors of the corporation was reduced to
ten by unanimous action of the Board of Directors at the meeting of directors
held on May 19, 2005]. 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). [Authorized number of directors in Class
II changed to three (3) by unanimous action of the Board of Directors at the
meeting of directors held on February 18, 2004; Authorized number of
directors in Class I changed to three (3) by unanimous action of the Board of
Directors at the meeting of directors held on May 19, 2005]. 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.
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Section 3. Nomination and Election.
(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
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
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.
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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 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.
Section 6. 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, 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 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 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
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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 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.
Section 10. Executive Committee. The directors may create an
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 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 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 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
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 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
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 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 one, and the Chief Executive Officer if
there be
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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
(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 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
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
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 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
appoint one or more agents to transfer or to register shares of the
corporation, or both.
Section 4. 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:
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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
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 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
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 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
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 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 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, 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 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 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. Anything contained in these Regulations to the contrary
notwithstanding, except as provided in Section 1 of this Article VIII, any
action which may 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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