REGULATIONS OF
EAGLE-PICHER INDUSTRIES, INC.
(THE "CORPORATION")
(AMENDED AS OF APRIL 14, 1997)
ARTICLE I
SHAREHOLDERS
SECTION 1.1. PLACE OF MEETINGS. Meetings of shareholders, whether annual or
special, shall be held at such place within or outside of the State of Ohio as
shall be determined by the Board of Directors. In the absence of such
determination, meetings shall be held at the principal office of the
Corporation.
SECTION 1.2. ANNUAL MEETING. The annual meeting of shareholders of the
Corporation shall be held on such date as shall be designated by the Board of
Directors. In the absence of such designation, the annual meeting shall be held
at 2:00 P.M. on the fourth Tuesday of March in each year if not a legal holiday,
and, if a legal holiday, then on the next day not a legal holiday. At the annual
meeting, directors shall be elected, reports of the affairs of the Corporation
shall be considered, and such other business shall be transacted as may properly
be brought before the meeting.
SECTION 1.3. SPECIAL MEETINGS. Special meetings of the shareholders may be
called at any time by any of the following:
(i) the Chairman of the Board or the President, or in case of the
President's absence, death or disability, the Vice President
authorized to exercise the President's authority;
(ii) the Board of Directors by action at a meeting or by a majority of
the directors acting without a meeting;
(iii) the Secretary or Assistant Secretary of the Corporation; or
(iv) at the request of persons holding twenty-five percent of all
outstanding shares entitled to vote.
SECTION 1.4. ACTIONS WITHOUT MEETING. Any action that may be authorized or
taken at a meeting of the shareholders 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 vote at a meeting of
the
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shareholders held for such purpose, which writing or writings shall be filed
with or entered upon the records of the Corporation.
SECTION 1.5. NOTICE OF MEETINGS. Written notice of each meeting of
shareholders, stating the time, place and purposes of the meeting, shall be
given not less than ten nor more than sixty days before the date of the meeting
by or at the direction of the President, the Secretary or any other officer
designated by the Board of Directors. 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 the meeting.
SECTION 1.6. WAIVER OF NOTICE. Notice of the time, place and purposes of
any meeting of shareholders may be waived in writing by any shareholder, either
before or after the holding of such meeting. Such writing shall be filed with or
entered upon the records of the meeting. The attendance of any shareholder at
any meeting without protesting, prior to or at the commencement of the meeting,
the lack of proper notice shall be deemed to be a waiver by the shareholder of
notice of the meeting.
SECTION 1.7. QUORUM. The holders of a majority of the shares of the
Corporation, present in person or by proxy, shall constitute a quorum at such
meetings. If a quorum is not present at a meeting of the shareholders, those
shareholders present in person or by proxy shall have the power to adjourn the
meeting without notice other than announcement at the meeting of the place, date
and hour of the adjourned meeting, until a quorum is present in person or by
proxy at the adjourned meeting. At an adjourned meeting at which a quorum is
present in person or by proxy, the Corporation may transact any business which
might have been transacted at the original meeting.
SECTION 1.8. VOTING. When a quorum is present at any meeting, except as
otherwise expressly required by statute, the Articles of Incorporation or these
Regulations, a majority of the votes cast at a meeting of shareholders shall
control. Unless the express terms of the shares of the Corporation provide
otherwise, each share shall entitle the holder of such share to one vote upon
each matter properly submitted to the shareholders for their vote at a meeting
of shareholders.
SECTION 1.9. PROXIES. Persons entitled to vote shares or to act with
respect to shares may vote or act in person or by proxy. The person appointed as
a proxy need not be a shareholder. A proxy must be appointed in a writing signed
by the shareholder. No appointment of a proxy is valid after the expiration of
eleven months after it is made, unless the writing specifies the date on which
it is to expire or the length of time for which it is to continue in force.
Every appointment of a proxy shall be revocable, unless the appointment is
coupled with an interest.
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ARTICLE II
DIRECTORS
SECTION 2.1. GENERAL POWERS. All of the authority of the Corporation
shall be exercised by or under the direction of the Board of Directors, subject
to limitations imposed by law, the Articles of Incorporation or these
Regulations.
SECTION 2.2. NUMBER, CLASSES AND ELECTION. The election of directors shall
take place at the annual meeting of shareholders or at a special meeting called
for that purpose. The number of directors of the Corporation shall be five,
which number may be adjusted, as determined from time to time by action of the
Board of Directors of the Corporation; provided, however, that in no event shall
the number of directors of the Corporation be less than three.
SECTION 2.3 VACANCIES. All vacancies in the Board of Directors, whether
caused by resignation, death or removal of any director, or by the failure of
the shareholders at any time to elect the whole authorized number of directors,
may be filled by a majority of the remaining directors. A director thus elected
to fill any vacancy shall hold office for the unexpired term of such director's
predecessor.
SECTION 2.4 REMOVAL. Any director may be removed from office as provided by
law.
SECTION 2.5. PLACE OF MEETINGS. All meetings of the Board of Directors
shall be held at the principal office of the Corporation or at such place,
within or outside of the State of Ohio, as may be designated from time to time
by a majority of the directors, or as may be designated in the notice or in the
waiver of notice of such meeting.
SECTION 2.6. ORGANIZATIONAL MEETINGS. An organizational meeting of the
Board of Directors may be held, without call or notice, immediately following
each annual meeting of the shareholders of this Corporation or at such
alternative time as may be provided in a notice of meeting.
SECTION 2.7. OTHER MEETINGS; NOTICE. Other meetings of the Board of
Directors may be held at any time on the call of the Chairman of the Board, the
President, any Vice President or any two directors. Written notice of any such
meeting, unless waived, shall be given not less than two days prior to the day
of the meeting. Notice also may be given personally or by telephone at least two
days prior to such meeting. The notice shall state the time and place, but need
not state the purposes, of the meeting. If the Secretary fails or refuses to
give such notice promptly, the notice may be given by the person who called the
meeting. Notice
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of adjournment of a meeting of the Board of Directors need not be given if the
time and place to which it is adjourned are fixed and announced at such meeting.
SECTION 2.8. WAIVER OF NOTICE. Notice of the time and place of any meeting
of the Board of Directors may be waived in writing, either before or after the
meeting takes place, 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 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 the meeting.
SECTION 2.9. QUORUM. A majority of the whole authorized number of directors
is necessary to constitute a quorum for a meeting of the Board of Directors,
except that a majority of the directors in office constitutes a quorum for
filling a vacancy in the Board of Directors. The act of a majority of the
directors present at a meeting at which a quorum is present is the act of the
Board of Directors, except as otherwise provided by law, the Articles of
Incorporation or these Regulations.
SECTION 2.10. TELEPHONIC MEETINGS. Meetings of the directors may be held by
means of any communications equipment if all persons participating can hear each
other, and participation in a meeting in such manner shall constitute presence
at such meeting.
SECTION 2.11. ACTIONS WITHOUT MEETING. Any action that may be authorized or
taken at a meeting of the Board of Directors of the Corporation 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 directors, which writing or
writings shall be filed with or entered upon the records of the Corporation.
SECTION 2.12. EXECUTIVE AND OTHER COMMITTEES. When the number of directors
authorized pursuant to Section 2.2 is greater than three, the Board of Directors
may create an executive committee and/or other committees, of the Board, each of
which shall consist of no fewer than three members. Such committees shall have
and may exercise such powers of the Board of Directors in the management of the
Corporation as may be conferred or authorized by the resolutions appointing
them; however, no committee shall have the power to fill vacancies among the
directors or in any committee. The Board of Directors shall have the power at
any time to fill vacancies in, to change the membership of, or to discharge any
such committee. All such committees shall be discharged and shall cease to
function at such time as the authorized number of directors is three or less.
Such committees shall act only during the intervals between meetings of the
Board of Directors and subject to the direction of the Board of Directors. Acts
of any committee within
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the authority delegated to it shall be effective for all purposes as the act or
authorization of the directors. A majority of the members of any committee may
fix the time and place of its meetings. Committee members may participate at
meetings by means of communications equipment if all participants can hear each
other, and such participation shall constitute presence at the meeting. Such
committees may act by a majority of their respective members at meetings or by a
writing or writings signed by all members of such committee.
ARTICLE III
OFFICERS
SECTION 3.1. OFFICERS; TERMS; DUTIES. The officers of the Corporation shall
consist of a President, Secretary and Treasurer; and the Board of Directors may,
in its discretion, elect a Chairman of the Board and such Vice Presidents,
Assistant Secretaries, Assistant Treasurers, a Controller and such other
officers and agents as the Board of Directors may determine. All officers shall
be elected by the Board of Directors, and they shall hold office for such
period, exercise such authority and perform such duties as the Board of
Directors may from time to time determine. Any two or more offices may be held
by the same person, but no officers shall execute, acknowledge, or verify any
instrument in more than one capacity if such instrument is required by law, the
Articles of Incorporation or these Regulations to be executed, acknowledged or
verified by two or more officers.
SECTION 3.2. ELECTION, TERM, ELIGIBILITY AND REMOVAL. The officers of the
Corporation shall be elected annually by the Board of Directors at its
organizational meeting held pursuant to Section 2.6 or at a special meeting held
for such purpose. New or additional officers may be elected at any meeting of
the Board of Directors. Each officer shall serve at the pleasure of the Board of
Directors, and each officer shall hold office until his or her successor is
chosen or until his or her death, resignation or removal. Only the Chairman of
the Board need be a member of the Board of Directors. Any officer may be
removed, with or without cause, by the Board of Directors without prejudice to
the contract rights of such officer.
SECTION 3.3. VACANCIES. If any office shall become vacant by reason of
death, resignation, removal or otherwise, the Board of Directors shall elect a
successor to fill such office.
SECTION 3.4. DELEGATION OF DUTIES. In case of the absence of any officer of
the Corporation or for any other reason that may seem sufficient to the Board of
Directors, the Board of Directors may, for such time as the Board of Directors
determines, delegate powers and duties of such officer to any other officer or
to any director.
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ARTICLE IV
SHARES
SECTION 4.1. SHARE CERTIFICATES. Certificates for shares of the
Corporation shall be in such form and style as the Board of Directors may
determine, and each certificate shall set forth the following:
(a) the name of the Corporation and that the Corporation is organized under
the laws of the State of Ohio;
(b) the name of the holder of the shares represented by the certificate;
(c) the number of shares represented by such certificate;
(d) a statement that such shares are without par value; and
(e) any restrictions upon transfer of the shares represented by such
certificate.
Certificates for shares of the Corporation shall be numbered serially as they
are issued, and shall be signed by any of the Chairman of the Board, the
President or a Vice President, and by any of the Secretary, an Assistant
Secretary, the Treasurer or an Assistant Treasurer. When the certificate is
countersigned by an incorporated transfer agent or registrar, the signature of
any officer may be facsimile, engraved, stamped or printed.
SECTION 4.2. UNCERTIFICATED SHARES. The Board of Directors may provide by
resolution that some or all of the shares of the Corporation shall be
uncertificated shares, provided that such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
Corporation as provided in division (B) of Section 1308.43 of the Ohio Revised
Code, and that such resolution shall not apply to a certificated security issued
in exchange for an uncertificated security as provided in division (C) of
Section 1308.43 of the Ohio Revised Code. Within a reasonable time after the
issuance or transfer of uncertificated shares, the Corporation shall send to the
registered owner a written notice containing the information described in
Section 4.1 hereof. Except as otherwise expressly provided by 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
shall be identical.
SECTION 4.3. LOST CERTIFICATE. Any shareholder claiming that a
certificate for shares has been lost, stolen or destroyed may make an affidavit
or affirmation of the fact. Subject to any requirement established by the
Board of Directors, a new certificate may be issued of the same tenor and
representing the
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same number of shares, or any combination thereof, as were represented by the
certificate alleged to have been lost, stolen or destroyed.
ARTICLE V
INDEMNIFICATION
SECTION 5.1. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Any person who is a
party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), by reason of the fact that he or she is or was a
director or officer of the Corporation or, as a director or officer of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, trustee, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise (including service with respect to employee
benefit plans), whether the basis of such Proceeding is alleged action in an
official capacity as a director, officer, trustee, employee or agent or in any
other capacity (and whether or not he or she continues as such director or
officer), shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by law, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such amendment), against all
expenses, liability and loss (including attorneys' fees, and, in respect of
claims not made by or in the right of the Corporation, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) actually and
reasonably incurred by such person in connection with the Proceeding; PROVIDED,
HOWEVER, that the Corporation shall indemnify any person seeking indemnity in
connection with a Proceeding initiated by such person only if such Proceeding
was authorized by the Board of Directors.
SECTION 5.2. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation may,
to such extent and in such manner as is determined by the Board of Directors,
but in no event to an extent greater than is permitted by the General
Corporation Law of Ohio, indemnify any employees and agents of the Corporation
and any other persons permitted to be indemnified by the General Corporation Law
of Ohio, but whose right to indemnification is not covered by Section 5.1,
above.
SECTION 5.3. ADVANCEMENT OF EXPENSES. Unless the only liability asserted
against a director in an action, suit or proceeding governed by this Article V
or applicable law is pursuant to Section 1701.95 of the Ohio Revised Code,
expenses, including attorneys' fees, incurred by a director or officer in
defending the action, suit or proceeding shall be paid by the Corporation as
they are incurred, in advance of the final disposition of the action,
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suit or proceeding, upon receipt of a written undertaking by which the director
agrees to do both of the following:
(i) repay the amount or amounts advanced if it is proved by clear and
convincing evidence in a court of competent jurisdiction that his
action or failure to act involved an act or omission undertaken
with deliberate intent to cause injury to the Corporation or
undertaken with reckless disregard for the best interests of the
Corporation; and
(ii) reasonably cooperate with the Corporation concerning the action,
suit or proceeding.
Expenses, including attorneys' fees, incurred by a director, officer, employee
or agent in defending any action, suit or proceeding governed by this Article V
or applicable law may be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding, as authorized by the Board of
Directors in the specific case, upon receipt of a written undertaking by which
the director, officer, employee or agent agrees to repay the amount or amounts
if it is ultimately determined that he or she is not entitled to be indemnified
by the Corporation.
SECTION 5.4. RIGHT OF CLAIMANT TO BRING SUIT. If a claim under Section 5.1
hereof is not paid in full by the Corporation within 30 days after a written
claim therefor has been received by the Corporation, the claimant may bring suit
against the Corporation to recover the unpaid amount of the claim. If the
claimant is successful in whole or in part, he or she also shall be entitled to
be paid the expense of prosecuting such claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses incurred in
a Proceeding in advance of its final disposition where the required undertaking
has been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the applicable law for the
Corporation to indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including the Board of Directors, independent legal counsel, or the
shareholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct, nor an actual
determination by the Corporation (including the Board of Directors, independent
legal counsel, or the shareholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
SECTION 5.5. CONTRACTUAL RIGHTS. The right to be indemnified
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under Section 5.1 (but not Section 5.2), including any right to the
reimbursement or advancement of expenses pursuant thereto, (i) is a contract
right based upon good and valuable consideration, pursuant to which the person
entitled thereto may bring suit as if the provisions hereof were set forth in a
separate written contract between the Corporation and the director or officer,
(ii) is intended to be retroactive and shall be available with respect to events
occurring prior to the adoption hereof, and (iii) shall continue to exist after
the rescission or restrictive modification hereof with respect to events
occurring prior thereto.
SECTION 5.6. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person
by this Article V shall not be exclusive, and shall be in addition to, any other
right of indemnification or reimbursement which such person may have under any
statute, provision of the Articles of Incorporation of the Corporation,
agreement, vote of shareholders or disinterested directors or otherwise.
SECTION 5.7. INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation against expenses, liability or loss incurred in respect of the
Proceeding, whether or not the Corporation would have the power to indemnify
such person against such expense, liability or loss under the Ohio General
Corporation Law.
SECTION 5.8. DETERMINATIONS. Any determination to be made under this
Article V by the Board of Directors shall be made as follows:
(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;
(b) if the quorum described in paragraph (a) of this Section 5.7 is not
obtainable or if a majority vote 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;
(c) by the shareholders; or
(d) by the court of common pleas or the court in which such action,
suit, or proceeding was brought.
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ARTICLE VI
NOTICE
Whenever provisions of law, the Articles of Incorporation or these
Regulations require notice to be given to any director or shareholder, personal
or hand delivery of such notice shall not be required. Any such notice may be
given in writing, by mail (by deposit in a post office or letter box, in an
envelope with postage affixed), by courier, by overnight package delivery, by
telegraph or by telecopier, in any case addressed to such director or
shareholder at such address as appears on the records of the Corporation. Notice
given by any one of the above methods shall be sufficient, and the method of
giving notice to all directors or to all shareholders, as the case may be, need
not be uniform. If otherwise permitted by these Regulations, notice to directors
may also be given by telephone call. Such notice shall be deemed to be given at
the time when it is so mailed, or delivered to a courier, an overnight package
delivery company or a telegraph company, or, in the case of a telecopy, when
transmission has been confirmed. Notice given by telephone shall be deemed to
have been given only when communicated directly to the person to whom such
notice is to be given (and not when left by voice mail or other recording
device). In computing the period of time for the giving of notice, the day on
which notice is given shall be excluded, and the day when the act for which
notice is given is to be done is included, unless the instrument calling for the
notice otherwise provides.
ARTICLE VII
SEAL
A corporate seal shall not be required. If the Board of Directors elects to
provide a seal, failure to affix such seal to any document shall not affect the
validity thereof.
ARTICLE VIII
AMENDMENT
These Regulations may be altered, amended or repealed, or new Regulations
may be adopted, (i) at any annual or special meeting of the shareholders called
for that purpose, by the affirmative vote of the holders of shares entitling
them to exercise a majority of the voting power of the Corporation on the
proposal, or (ii) without a meeting by the written consent of the holders of the
Corporation's common shares entitling them to exercise two-thirds of the voting
power of the Corporation on such proposal.
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