EXHIBIT 3.2
CODE OF REGULATIONS
OF
DYNACRAFT GOLF PRODUCTS, INC.
(As amended to July ____, 1997)
INDEX
ARTICLE ONE
MEETINGS OF SHAREHOLDERS
Section 1.01. Annual Meetings . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Calling of Meetings . . . . . . . . . . . . . . . . . . . . 1
Section 1.03. Place of Meetings . . . . . . . . . . . . . . . . . . . . . 1
Section 1.04. Notice of Meetings. . . . . . . . . . . . . . . . . . . . . 1
Section 1.05. Waiver of Notice. . . . . . . . . . . . . . . . . . . . . . 2
Section 1.06. Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.07. Votes Required. . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.08. Order of Business . . . . . . . . . . . . . . . . . . . . . 3
Section 1.09. Shareholders Entitled to Vote . . . . . . . . . . . . . . . 3
Section 1.10. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.11. Inspectors of Election. . . . . . . . . . . . . . . . . . . 3
ARTICLE TWO
DIRECTORS
Section 2.01. Authority and Qualifications. . . . . . . . . . . . . . . . 4
Section 2.02. Number of Directors and Term of Office. . . . . . . . . . . 4
Section 2.03. Election. . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.04. Nominations . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.05. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.06. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.07. Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.08. Notice of Meetings. . . . . . . . . . . . . . . . . . . . . 6
Section 2.09. Waiver of Notice. . . . . . . . . . . . . . . . . . . . . . 7
Section 2.10. Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.11. Executive Committee . . . . . . . . . . . . . . . . . . . . 7
Section 2.12. Compensation. . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.13. By-Laws . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE THREE
OFFICERS
Section 3.01. Officers. . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.02. Tenure of Office. . . . . . . . . . . . . . . . . . . . . . 8
Section 3.03. Duties of the Chairman of the Board . . . . . . . . . . . . 8
Section 3.04. Duties of the President . . . . . . . . . . . . . . . . . . 8
Section 3.05. Duties of the Vice Presidents . . . . . . . . . . . . . . . 8
Section 3.06. Duties of the Secretary . . . . . . . . . . . . . . . . . . 9
Section 3.07. Duties of the Treasurer . . . . . . . . . . . . . . . . . . 9
ARTICLE FOUR
SHARES
Section 4.01. Certificates. . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.02. Transfers . . . . . . . . . . . . . . . . . . . . . . . . .10
Section 4.03. Transfer Agents and Registrars. . . . . . . . . . . . . . .10
Section 4.04. Lost, Wrongfully Taken or Destroyed Certificates. . . . . .10
Section 4.05. Uncertificated Shares . . . . . . . . . . . . . . . . . . .11
ARTICLE FIVE
INDEMNIFICATION AND INSURANCE
Section 5.01. Mandatory Indemnification . . . . . . . . . . . . . . . . .11
Section 5.02. Court-Approved Indemnification. . . . . . . . . . . . . . .12
Section 5.03. Indemnification for Expenses. . . . . . . . . . . . . . . .12
Section 5.04. Determination Required. . . . . . . . . . . . . . . . . . .12
Section 5.05. Advances for Expenses . . . . . . . . . . . . . . . . . . .13
Section 5.06. Article FIVE Not Exclusive. . . . . . . . . . . . . . . . .13
Section 5.07. Insurance . . . . . . . . . . . . . . . . . . . . . . . . .14
Section 5.08. Certain Definitions . . . . . . . . . . . . . . . . . . . .14
Section 5.09. Venue . . . . . . . . . . . . . . . . . . . . . . . . . . .14
ARTICLE SIX
MISCELLANEOUS
Section 6.01. Amendments. . . . . . . . . . . . . . . . . . . . . . . . .15
Section 6.02. Action by Shareholders or Directors Without a Meeting . . .15
ii
CODE OF REGULATIONS
OF
DYNACRAFT GOLF PRODUCTS, INC.
(As amended to July ____, 1997)
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 third Monday
in July 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 fifty percent (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 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
Dynacraft Code of Regulations - As amended to July ___, 1997
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 sixty days after the receipt
of such request, as such officer may fix. If such notice is not given within
fifteen 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.
(C) A shareholder seeking to bring business before an annual
meeting of the shareholders shall provide written notice thereof to the
Secretary of the corporation, stating his intent and the subject of business.
Such notice shall be personally delivered to, or mailed by United States
mail, postage prepaid, and received at, the principal executive offices of
the corporation not less than sixty, nor more than ninety days, prior to the
date of the annual meeting. If, however, notice or public disclosure of the
date of the annual meeting is given or made less than seventy days prior to
the annual meeting, then written notice by the shareholder must be received
by the Secretary of the corporation no later than the close of business on
the tenth day following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure was made.
Notwithstanding the provisions of this Division (C) of Section 1.04, a
shareholder's proposal shall be considered timely submitted to the
corporation if it is submitted in accordance with Rule 14a-8 under the
Securities Exchange Act of 1934, as amended, or any successor rule or
regulation. The chairman of the annual meeting may refuse to acknowledge the
proposal of any person to bring business before the annual meeting not made
in compliance with the foregoing procedure and applicable federal securities
laws.
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 shareholders,
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 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
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2
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 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
sixty days preceding the date of the meeting of shareholders.
SECTION 1.10. 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 1.11. 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
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3
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 its directors. Directors
need not be 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 nine. Directors shall be
divided into three (3) classes each of which shall consist of such number of
directors, not less than three, as may be determined by the shareholders or
directors in the manner described in paragraphs (B) and (C) of this Section.
The number of directors in each class need not be uniform. At the time these
Regulations are adopted, three persons shall be elected to serve as directors
for one year and until their successors are elected, three persons shall be
elected to serve as directors for two years and until their successors are
elected and three persons shall be elected to serve as directors for three
years and until their successors are elected. At each annual meeting of
shareholders beginning with the 1998 annual meeting a class of directors
shall be elected to serve a term of three years to succeed the class of
directors whose terms shall expire in that year so that the term of office of
only one class of directors shall expire in each such year; provided,
however, that each director elected at any time shall hold office until his
successor is duly elected and qualified or until his earlier resignation,
removal from office, or death.
(B) 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.
(C) The directors may fix or change the number of directors and may
fill any director's office that is created by an increase in the number of
directors.
(D) No reduction in the number of directors shall of itself have the
effect of shortening the term of any incumbent director.
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4
SECTION 2.03. ELECTION. At each annual meeting of the 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. NOMINATIONS. Nominations for the election of directors
may be made by the board of directors of the corporation or a committee by
the board or by any shareholder entitled to vote in the election of directors
generally. However, any shareholders entitled to vote in the election of
directors generally may nominate one or more persons for election as
directors at a meeting only if written notice of such shareholder's intent to
make such nomination or nominations has been given to the Secretary of the
corporation. Such notice shall be personally delivered to, or mailed by
United States mail, postage prepaid, and received at, the principal executive
offices of the corporation not less than sixty days, nor more than ninety
days, prior to the date of the meeting at which such election is to occur.
If, however, notice or public disclosure of the date of the meeting is given
or made less than seventy days prior to the meeting, then written notice by
the shareholder must be received by the Secretary of the corporation not
later than the close of business on the tenth day following the day on which
such notice of the date of the meeting was mailed or such public disclosure
was made. Each such notice shall set forth: (A) the name and address of the
shareholder who intends to make the nomination and of the person or persons
to be nominated; (B) a representation that the shareholder is a holder of
record of shares of the corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate the person
or persons specified in the notice; (C) a description of all arrangements or
understandings between the shareholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nomination
or nominations are to be made by the shareholder; (D) such other information
regarding each nominee proposed by such shareholder as would be required to
be included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated, or
intended to be nominated, by the board of directors of the corporation; and
(E) the consent of each nominee to serve as a director of the corporation if
so elected. The chairman of the meeting may refuse to acknowledge the
nomination of any person not made in compliance with the foregoing procedure.
SECTION 2.05. REMOVAL. A director or directors may be removed from
office only for cause and 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 removal, a new director may be elected at the same meeting for the
unexpired term of each director removed. Failure to elect a
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5
director to fill the unexpired term of any director removed shall be deemed
to create a vacancy in the board.
SECTION 2.06. VACANCIES. The remaining directors, though less than a
majority of the whole authorized number of directors, may, by the vote of a
majority of their number, fill any vacancy in the board for the unexpired
term. A vacancy in the board exists within the meaning of this Section 2.06
in case the shareholders increase the authorized number of directors but fail
at the meeting at which such increase is authorized, or an adjournment
thereof, to elect the additional directors provided for, or in case the
shareholders fail at any time to elect the whole authorized number of
directors.
SECTION 2.07. 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, 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 2.08. 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.
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6
Notice of any meeting of directors may be given only by the chairman of the
board, the president or the secretary of the corporation. 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 2.09. 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 2.10. 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 Regulations.
SECTION 2.11. 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.
Any act or authorization of any 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 of any other
committee of directors may be called only by the president or by a member of
such executive or other committee of directors. Meetings of the executive
committee or of any other committee of directors may be held through any
communications equipment if all persons participating can hear each other and
participation in such a meeting shall constitute presence thereat.
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7
SECTION 2.12. 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 2.13. 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. OFFICERS. The officers of the corporation to be elected
by the directors shall be a president, a secretary, a treasurer, and, if
desired, one or more vice presidents and such other officers and assistant
officers as the directors may from time to time elect. The directors may
elect a chairman of the board, who must be a director. Officers need not be
shareholders of the corporation, and may be paid such compensation as the
board of 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, 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 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
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8
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 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; to
perform such other duties as may be required by law, the Articles or the
Regulations; 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 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 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 facsimile, engraved, stamped or printed); and such
recitals as may be required by law. Certificates
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9
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. 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 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 4.03. TRANSFER AGENTS AND REGISTRARS. The directors may appoint
one or more agents to transfer or to register shares of the corporation, or
both.
SECTION 4.04. 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
sums 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
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(C) Satisfies any other reasonable requirements which may be imposed by
the directors, in their discretion.
SECTION 4.05. UNCERTIFICATED SHARES. Anything contained in this Article
FOUR to the contrary notwithstanding, the directors may provide by resolution
that some or all of any or all classes and series of shares of the corporation
shall be uncertificated shares, provided that such resolution shall not apply to
(A) shares of the corporation represented by a certificate until such
certificate is surrendered to the corporation in accordance with applicable
provisions of Ohio law or (B) any certificated security of the corporation
issued in exchange for an uncertificated security in accordance with applicable
provisions of Ohio law. The rights and obligations of the holders of
uncertificated shares and the rights and obligations of the holders of
certificates representing shares of the same class and series shall be
identical, except as otherwise expressly provided by law.
ARTICLE FIVE
INDEMNIFICATION AND INSURANCE
SECTION 5.01. MANDATORY INDEMNIFICATION. The corporation shall indemnify
any officer or director of the corporation 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,
officer, manager or agent of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee, member,
manager or agent of another corporation (domestic or foreign, nonprofit or for
profit), limited liability company, 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 5.01 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.
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SECTION 5.02. COURT-APPROVED INDEMNIFICATION. Anything contained in the
Regulations or elsewhere to the contrary notwithstanding:
(A) the corporation shall not indemnify any officer or director of the
corporation 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, member, manager or agent of another
corporation (domestic or foreign, nonprofit or for profit), limited liability
company, 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 acting with reckless disregard for the best
interests of the corporation 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 Licking 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 5.02.
SECTION 5.03. 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 has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
Section 5.01, 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 5.04. DETERMINATION REQUIRED. Any indemnification required under
Section 5.01 and not precluded under Section 5.02 shall be made by the
corporation only upon a determination that such indemnification of the officer
or director is proper in the circumstances because he has met the applicable
standard of conduct set forth in Section 5.01. 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 Licking County,
Ohio or (if the corporation is a party thereto) the court in which such action,
suit or
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proceeding was brought, if any; any such determination may be made by a court
under division (D) of this Section 5.04 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 division (A) or by
independent legal counsel under division (B) or by the shareholders under
division (C) of this Section 5.04; 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 division (A) or by
independent legal counsel under division (B) or by shareholders under
division (C) of this Section 5.04 shall be evidence in rebuttal of the
presumption recited in Section 5.01. Any determination made by the
disinterested directors under division (A) or by independent legal counsel
under division (B) of this Section 5.04 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 Licking County, Ohio or the court in
which such action or suit was brought, if any, to review the reasonableness
of such determination.
SECTION 5.05. 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 5.01 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 or
director promptly as such expenses are incurred by him, but only if such officer
or director 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) if it shall ultimately be determined as provided in Section 5.04 that
he is not entitled to be indemnified by the corporation as provided under
Section 5.01; 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 acting with reckless disregard for the best interests of the
corporation 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 Licking 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 5.06. ARTICLE FIVE NOT EXCLUSIVE. The indemnification provided by
this Article FIVE shall not be exclusive of, and shall be in addition to, any
other rights to which any person seeking indemnification may be entitled under
the
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Articles, the Regulations, any agreement, a 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 an officer or director of
the corporation 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 or furnish similar protection, including but not limited to trust
funds, letters of credit, or self-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 (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 FIVE. Insurance may be purchased from or maintained
with a person in which the corporation has a financial interest.
SECTION 5.08. CERTAIN DEFINITIONS. For purposes of this Article FIVE, and
as examples and not by way of limitation:
(A) A person claiming indemnification under this Article FIVE shall be
deemed to have been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 5.01, 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 the 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 interests of
the corporation" within the meaning of that term as used in this Article FIVE.
SECTION 5.09. VENUE. Any action, suit or proceeding to determine a claim
for indemnification under this Article FIVE may be maintained by the person
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claiming such indemnification, or by the corporation, in the Court of Common
Pleas of Licking 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 Licking County, Ohio in any
such action, suit or proceeding.
ARTICLE SIX
MISCELLANEOUS
SECTION 6.01. AMENDMENTS.
(A) The Regulations may be amended, or new regulations may be adopted, at
a meeting of the shareholders held for such purpose, only by the affirmative
vote of the holders of shares entitling them to exercise not less than a
majority of the voting power of the corporation on such proposal.
(B) Division (A) of this Section 6.01 notwithstanding, the shareholders
shall have no right to (1) amend or repeal, in any respect, Section 2.05,
Article FIVE, this Division (B) of Section 6.01 or Division (B) of Section 6.02
of these Regulations; or (2) adopt, amend or repeal any other provision which
would modify or circumvent Section 2.05, Article FIVE, this Division (B) of
Section 6.01 or Division (B) of Section 6.02 of these Regulations, unless, in
each case, the holders of not less than sixty-six and two-thirds percent (66 2/3
%) of the total voting power of the corporation shall have voted in favor of
such action.
SECTION 6.02. ACTION BY SHAREHOLDERS OR DIRECTORS WITHOUT A MEETING.
(A) Anything contained in the Regulations to the contrary notwithstanding,
except as provided in Division (B) of this Section 6.02, 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 held for such purpose, 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.
(B) Notwithstanding the provisions of Division (A) of this Section 6.02,
from and after the date of the closing of the initial public offering of the
common shares of the corporation registered pursuant to the Securities Act of
1933, as amended, the Regulations may be amended, or new regulations adopted, by
the shareholders only at a meeting of the shareholders held for such purpose.
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