EXHIBIT 3.28
AMENDED & RESTATED
CODE OF REGULATIONS
OF
SCOT LAD-LIMA, INC.
Adopted: June 16, 1993
Amended: March 30, 2000
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE 1 Meetings of Shareholders 1
s.1.1 Annual Meeting 1
s.1.2 Special Meetings 1
s.1.3 Place of Meetings 1
s.1.4 Notice of Meetings 1
s.1.5 Waiver of Notice 1
s.1.6 Quorum 2
s.1.7 Organization 2
s.1.8 Order of Business 2
s.1.9 Voting 2
s.1.10 Proxies 2
s.1.11 Inspectors of Elections 2
s.1.12 Record Date 2
s.1.13 List of Shareholders at Meeting 3
s.1.14 Action in Writing in Lieu of Meeting 3
ARTICLE 2 Board of Directors 3
s.2.1 General Powers of Board 3
s.2.2 Number of Directors 3
s.2.3 Compensation and Expenses 3
s.2.4 Election of Directors 3
s.2.5 Term of Office 3
s.2.6 Resignations 4
s.2.7 Removal of Directors 4
s.2.8 Vacancies 4
s.2.9 Organization of Meetings 4
s.2.10 Place of Meetings 4
s.2.11 Regular Meetings 4
s.2.12 Special Meetings 4
s.2.13 Notices of Meetings 4
s.2.14 Notice of Adjournment of Meeting 5
s.2.15 Quorum and Manner of Acting 5
s.2.16 Order of Business 5
s.2.17 Action in Writing in Lieu of Meeting 5
s.2.18 Executive and Other Committees 5
ARTICLE 3 Officers 6
s.3.1 Number and Titles 6
s.3.2 Election, Terms of Office, 6
Qualifications, and Compensation 6
s.3.3 Additional Officers, Agents, Etc. 6
s.3.4 Removal 6
s.3.5 Resignations 6
s.3.6 Vacancies 7
s.3.7 Powers, Authority, and Duties of Officers 7
(i)
ARTICLE 4 Shares and Their Transfer 7
s.4.1 Certificates for Shares 7
s.4.1 Certificates for Shares 7
s.4.2 Transfer of Shares 7
s.4.3 Regulations 7
s.4.4 Lost, Destroyed or Stolen Certificates 8
ARTICLE 5 Examination of Books by Shareholders 8
ARTICLE 6 Indemnification and Insurance 8
s.6.1 Costs Incurred 8
s.6.2 Indemnification Procedure 9
s.6.3 Advance Payment of Costs 9
s.6.4 Non-Exclusive 9
s.6.5 Insurance 9
s.6.6 Survival 9
s.6.7 Successors 9
ARTICLE 7 Seal 10
ARTICLE 8 Fiscal Year 10
ARTICLE 9 Control Share Acquisitions 10
ARTICLE 10 Deleted 10
ARTICLE 11 Amendment of Regulations 10
ARTICLE 12 Close Corporation Agreement 10
(ii)
CODE OF REGULATIONS
ARTICLE 1
Meetings of Shareholders
s.1.1 Annual Meeting. The annual meeting of the shareholders, for the
purpose of electing directors and transacting such other business as may come
before the meeting, shall be held on such date and at such time during the first
six months of each fiscal year of the Company as may be fixed by the board of
directors and stated in the notice of the meeting.
s.1.2 Special Meetings. A special meeting of the shareholders may be
called by the chairman of the board, or the president, or a majority of the
directors acting with or without a meeting, or the holders of shares entitling
them to exercise 25% of the voting power of the Company entitled to be voted at
the meeting. Upon delivery to the chairman, president, or secretary of a request
in writing for a special meeting of the shareholders by any persons entitled to
call such meeting, the officer to whom the request is delivered shall give
notice to the shareholders of such meeting. Any such request shall specify the
purposes and the date and hour for such meeting. The date shall be at least 14
and not more than 65 days after delivery of the request. If such officer does
not call the meeting within five days after any such request, the persons making
the request may call the meeting by giving notice as provided in s.1.4 or by
causing it to be given by their designated representative.
s.1.3 Place of Meetings. All meetings of shareholders shall be held at
such place or places, within or without the State of Ohio, as may be fixed by
the board of directors or, if not so fixed, as shall be specified in the notice
of the meeting.
s.1.4 Notice of Meetings. Every shareholder shall furnish the
secretary of the Company with an address at which notices of meetings and all
other corporate notices may be served on or mailed to him. Except as otherwise
expressly required by law, notice of each shareholders' meeting, whether annual
or special, shall, not more than 60 days and at least 7 days before the date
specified for the meeting, be given by the chairman, president, or secretary or,
in case of their refusal or failure to do so, by the person or persons entitled
to call such meeting, to each shareholder entitled to notice of the meeting, by
delivering a written or printed notice to him personally or by mailing the
notice in a postage-prepaid envelope addressed to him at his address furnished
by him as above provided, or, if he shall not have furnished such address, at
his post office address last known to the sender. Except when expressly required
by law, no publication of any notice of a shareholders' meeting shall be
required. If shares are transferred after notice has been given, notice need not
be given to the transferee. A record date may be fixed for determining the
shareholders entitled to notice of any meeting of shareholders, in accordance
with the provisions of s.1.12. Every notice of a shareholders' meeting, besides
stating the time and place of the meeting, shall state briefly the purposes of
the meeting as may be specified by the person or persons requesting or calling
the meeting. Only the business provided for in such notice shall be considered
at the meeting. Notice of the 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.
s.1.5 Waiver of Notice. Any shareholder, either before or after any
meeting, may waive any notice required by law, the articles, or these
regulations. Waivers must be in writing and filed with or entered upon the
records of the meeting. Notice of a meeting will be deemed to have been waived
by any shareholder who attends the meeting either in person or by proxy, and who
does not, before or at the commencement of the meeting, protest the lack of
proper notice.
1
s.1.6 Quorum. The holders of shares entitling them to exercise a
majority of the voting power of the Company entitled to vote at a meeting,
present in person or by proxy, shall constitute a quorum for the transaction of
business, except when a greater number is required by law, the articles of
incorporation, or these regulations. In the absence of a quorum at any meeting
or any adjournment of the meeting, the holders of shares entitling them to
exercise a majority of the voting power of the shareholders present in person or
by proxy and entitled to vote may adjourn the meeting from time to time. At any
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally called.
s.1.7 Organization. At each shareholders' meeting the chairman of the
board, or, in his absence, the president, or, in the absence of both of them, a
chairman chosen by the holders of shares entitling them to exercise a majority
of the voting power of the shareholders present in person or by proxy and
entitled to vote, shall act as chairman, and the secretary of the Company, or,
in his absence, any assistant secretary, or, in the absence of all of them, any
person whom the chairman of the meeting appoints, shall act as secretary of the
meeting.
s.1.8 Order of Business. The order of business at each meeting of the
shareholders shall be fixed by the chairman of the meeting at the beginning of
the meeting but may be changed by the vote of the holders of shares entitling
them to exercise a majority of the voting power of the shareholders present in
person or by proxy and entitled to vote.
s.1.9 Voting. Each holder of a share or shares of the class or classes
entitled to vote by law or the articles of incorporation shall be entitled to
one vote in person or by proxy for each such share registered in his name on the
books of the Company. As provided in ss.1.12, a record date for determining
which shareholders are entitled to vote at any meeting may be fixed. Shares of
its own stock belonging to the Company shall not be voted directly or
indirectly. Persons holding voting shares in a fiduciary capacity shall be
entitled to vote the shares so held. A shareholder whose shares are pledged
shall be entitled to vote the shares standing in his name on the books of the
Company. Upon a demand by any shareholder present in person or by proxy at any
meeting and entitled to vote, any vote shall be by ballot. Each ballot shall be
signed by the shareholder or his proxy and shall state the number of shares
voted by him. Otherwise, votes shall be made orally.
s.1.10 Proxies. Any shareholder who is entitled to attend or vote at a
shareholders' meeting shall be entitled to exercise such right and any other of
his rights by proxy or proxies appointed by a writing signed by such
shareholder, which need not be witnessed or acknowledged. Except as otherwise
specifically provided in these regulations, actions taken by proxy shall be
governed by the provisions of s.1701.48, Ohio Revised code, or any similar
statute which may hereafter be enacted, including the provisions relating to the
sufficiency of the writing, duration of the validity of the proxy, power of
substitution, revocation, and all other provisions.
s.1.11 Inspectors of Elections. Inspectors of elections may be
appointed and act as provided in s.1701.50, Ohio Revised Code, or any future
statute of like tenor or effect.
s.1.12 Record Date. The board of directors may fix a record date for
any lawful purpose, including without limitation the determination of
shareholders entitled to: (a) receive notice of or to vote at any meeting, (b)
receive payment of any dividend or other distribution, (c) receive or exercise
rights of purchase of, subscription for, or exchange or conversion of, shares or
other securities, subject to any contract right with respect thereto, or (d)
participate in the execution of written consents, waivers, or releases. Any such
record date shall not be more than 60 days preceding the date of such meeting,
the date fixed for the payment of any dividend
2
or other distribution, or the date fixed for the receipt or the exercise of
rights, as the case may be.
s.1.13 List of Shareholders at Meeting. Upon request of any
shareholder at any meeting of shareholders, there shall be produced at the
meeting an alphabetically arranged list, or classified lists, of the
shareholders of record as of the applicable record date who are entitled to
vote, showing their respective addresses and the number and classes of shares
held by them.
s.1.14 Action in Writing in Lieu of Meeting. Any action which may be
authorized or be 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
notice of a meeting of the shareholders held for that purpose.
ARTICLE 2
Board of Directors
s.2.1 General Powers of Board. The powers of the Company shall be
exercised, its business and affairs shall be conducted, and its property shall
be controlled by the board of directors, except as otherwise provided by laws of
the State of Ohio, the Company's articles of incorporation, or these
regulations.
s.2.2 Number of Directors. Until changed in accordance with this
section, the number of directors of the Company, none of whom need be
shareholders, shall be not less than three nor more than seven, provided that
when all shares of the Company are owned of record by one or two shareholders,
the number of directors may be less than three but not less than the number of
shareholders. The number of directors may be fixed or changed at any annual
meeting of the shareholders, or at any 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 Company on such
proposal.
s.2.3 Compensation and Expenses. The directors shall be entitled to
such compensation, on a monthly or annual basis, or on the basis of meetings
attended, or on both bases, as the board of directors may from time to time
determine and establish. No director shall be precluded from serving the Company
as an officer or in any other capacity, or from receiving compensation for so
serving. Directors may be reimbursed for their reasonable expenses incurred in
the performance of their duties, including the expense of traveling to and from
meetings of the board, if such reimbursement is authorized by the board of
directors.
s.2.4 Election of Directors. At each meeting of the shareholders for
the election of directors at which a quorum is present, the persons receiving
the greatest number of votes shall be deemed elected directors. Any shareholder
may cumulate his votes at an election of directors upon fulfillment of the
conditions prescribed in s.1701.55, Ohio Revised Code, or any similar statute
which may hereafter be enacted.
s.2.5 Term of Office. Each director shall hold office until the annual
meeting of shareholders in the year of the expiration of his term of office, or,
if the election of directors shall not be held at that annual meeting, until a
special meeting of the shareholders for the purpose of electing directors is
held as provided in s.1.2, or the taking of action by all the shareholders in
writing in lieu of either such meetings, and in any case until his successor is
elected and qualified or until his earlier resignation, removal from office, or
death.
3
s.2.6 Resignations. Any director may resign by giving written notice
to the chairman, the president, or the secretary of the Company. Such
resignation shall take effect at the time specified therein. Unless otherwise
specified therein, the acceptance of a resignation shall not be necessary to
make it effective.
s.2.7 Removal of Directors. All directors or any individual director
may be removed from office, without assigning any cause, by the affirmative vote
of the holders of record of not less than 75% of the shares having voting power
of the Company with respect to the election of directors, provided that unless
all directors are removed, no individual director shall be removed in case the
votes of a sufficient number of shares are cast against his removal which, if
cumulatively voted at an election of all directors, would be sufficient to elect
at least one director. In case of any such removal, a new director may be
elected at the same meeting for the unexpired term of each director removed. Any
director may also be removed by the board of directors for any of the causes
specified in s.1701.58 (B), Ohio Revised Code, or any similar statute which may
hereafter be enacted.
s.2.8 Vacancies. A vacancy in the board of directors may be filled by
majority vote of the remaining directors, even though they are less than a
quorum, until the shareholders hold an election to fill the vacancy.
Shareholders entitled to elect directors may elect a director to fill any
vacancy in the board (whether or not the vacancy has previously been temporarily
filled by the remaining directors) at any shareholders' meeting called for that
purpose.
s.2.9 Organization of Meetings. At each meeting of the board of
directors, the chairman of the board, or, in his absence, the president, or, in
his absence, a chairman chosen by a majority of the directors present, shall act
as chairman. The secretary of the Company, or, if the secretary shall not be
present, any person whom the chairman of the meeting shall appoint, shall act as
secretary of the meeting.
s.2.10 Place of Meetings. Meetings of the board shall be held at such
place or places, within or without the State of Ohio, as may from time to time
be fixed by the board of directors or as shall be specified or fixed in the
notice of the meeting.
s.2.11 Regular Meetings. Regular meetings of the board will not be
held unless this code of regulations shall be amended to provide therefor.
s.2.12 Special Meetings. Special meetings of the board of directors
shall be held whenever called by the chairman of the board, if any, or by the
president, or by any two directors.
s.2.13 Notices of Meetings. Every director shall furnish the secretary
of the Company with an address at which notices of meetings and all other
corporate notices may be served on or mailed to him. Unless waived before, at,
or after the meeting as hereinafter provided, notice of each board meeting shall
be given by the chairman, the president, the secretary, an assistant secretary,
or the persons calling such meeting, to each director in any of the following
ways:
(a) By orally informing him of the meeting in person or by
telephone not later than two days before the date of the meeting.
(b) By delivering written notice to him not later than two
days before the date of the meeting.
4
(c) By mailing written notice to him, or by sending notice
to him by telegram, cablegram, or radiogram, postage or other costs
prepaid, addressed to him at the address furnished by him to the
secretary of the Company, or to such other address as the person
sending the notice shall know to be correct. Such notice shall be
posted or dispatched a sufficient length of time before the meeting so
that in the ordinary course of the mail or the transmission of
telegrams, cablegrams, or radiograms, delivery would normally be made
to him not later than two days before the date of the meeting.
Unless otherwise required by the articles of incorporation, this code
of regulations, or the laws of the State of Ohio (for example, see the
provisions of the code of regulations with respect to the election or removal of
directors), the notice of any meeting need not specify the purposes of the
meeting. Notice of any meeting of the board may be waived by any director,
either before, at, or after the meeting, in writing, or by telegram, cablegram,
or radiogram.
s.2.14 Notice of Adjournment of Meeting. 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.
s.2.15 Quorum and Manner of Acting. A majority of the number of
directors fixed or established pursuant to s.2.2 as of the time of any meeting
of the board of directors must be present in person at such meeting in order to
constitute a quorum for the transaction of business, provided that meetings of
the directors may include participation by directors through any communications
equipment if all directors participating can hear each other, and such
participation in a meeting shall constitute presence at such meeting. The act of
a majority of the directors present at any meeting at which a quorum is present
shall be the act of the board of directors. In the absence of a quorum, a
majority of those present may adjourn a meeting from time to time until a quorum
is present. Notice of an adjourned meeting need not be given. The directors
shall act only as a board. Individual directors shall have no power as such.
s.2.16 Order of Business. The order of business at meetings of the
board shall be such as the chairman of the meeting may prescribe or follow,
subject, however, to his being overruled with respect thereto by a majority of
the members of the board present.
s.2.17 Action in Writing in Lieu of Meeting. Any action which may be
authorized or taken at a meeting of the directors 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.
s.2.18 Executive and Other Committees. The directors may create and
from time to time abolish or reconstitute an executive committee and any other
committee or committees of directors each to consist of not less than three
directors, and may delegate to any such committee or committees any or all of
the authority of the directors, however conferred, other than that of filling
vacancies in the board of directors or in any committee of directors. Each such
committee shall serve at the pleasure of the directors, and shall act only in
the intervals between meetings of the board of directors, and shall be subject
to the control and direction of the board of directors. The directors may adopt
or authorize the committees to adopt provisions with respect to the government
of any such committee or committees which are not inconsistent with applicable
law, the articles of incorporation of the Company, or these regulations. An act
or authorization of any act by any such committee within the authority properly
delegated to it by the directors shall be as effective for all purposes as the
act or authorization of the directors. Any right, power, or authority conferred
in these regulations to the "directors" or to the "board of directors" shall
also be deemed conferred upon each committee or committees of directors to
5
which any such right, power, or authority is delegated (expressly, or by general
delegation, or by necessary implication) by the board of directors.
ARTICLE 3
Officers
s.3.1 Number and Titles. The officers of the Company shall be a
chairman of the board, if needed, a president, one or more vice presidents, if
needed, a secretary, one or more assistant secretaries, if needed, a treasurer,
and one or more assistant treasurers, if needed. The board shall have the
discretion to determine from time to time whether or not a chairman of the board
is needed, the number of vice presidents, if any, the Company shall have,
whether or not assistant secretaries and assistant treasurers are needed, and,
if so, the number of assistant secretaries and assistant treasurers the Company
shall have. If there is more than one vice president, the board may, in its
discretion, establish designations for the vice presidencies so as to
distinguish among them as to their functions or their order, or both. 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 Company's articles of incorporation, or these
regulations to be executed, acknowledged, or verified by two or more officers.
s.3.2 Election, Terms of Office, Qualifications, and Compensation. The
officers shall be elected by the board of directors. Each shall be elected for
an indeterminate term and shall hold office during the pleasure of the board of
directors. The board of directors may hold annual elections of officers; in that
event, each such officer shall hold office until his successor is elected and
qualified unless he earlier is removed by the board of directors. The chairman
of the board, if one is elected, shall be a director, but no other officer need
be a director. The other qualifications of all officers shall be such as the
board of directors may establish from time to time. The board of directors shall
fix the compensation, if any, of each officer.
s.3.3 Additional Officers, Agents, Etc. In addition to the officers
mentioned in s.3.1, the Company may have such other officers, agents, and
committees as the board of directors may deem necessary and may appoint, each of
whom or each member of which shall hold office for such period, have such
authority, and perform such duties as may be provided in these regulations or as
may be determined by the board from time to time. The board of directors may
delegate to any officer or committee the power to appoint any subordinate
officer, agents, or committees. In the absence of any officer, or for any other
reason the board of directors may deem sufficient, the board of directors may
delegate, for the time being, the powers and duties, or any of them, of such
officer to any other officer, or to any director.
s.3.4 Removal. Any officer may be removed, either with or without
cause, at any time, by the board of directors at any meeting, the notices (or
waivers of notices) of which shall have specified that such removal action was
to be considered. Any officer appointed by an officer or committee to which the
board shall have delegated the power of appointment may be removed, either with
or without cause, by the committee or superior officer (including successors)
who made the appointment, or by any committee or officer upon whom such power of
removal may be conferred by the board of directors.
s.3.5 Resignations. Any officer may resign at any time by giving
written notice to the board of directors, the chairman, the president, or the
secretary. Any such resignation shall take effect at the time specified therein.
Unless otherwise specified therein, the acceptance of such, resignation shall
not be necessary to make it effective.
6
s.3.6 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification, or otherwise, shall be filled in the
manner prescribed for regular appointments or elections to such office.
s.3.7 Powers, Authority, and Duties of Officers. Officers of the
Company shall have the powers and authority conferred and the duties prescribed
by law, in addition to those specified or provided for in these regulations and
such other powers, authority, and duties as may be determined by the board of
directors from time to time.
ARTICLE 4
Shares and Their Transfer
s.4.1 Certificates for Shares. Every owner of one or more shares in
the Company shall be entitled to a certificate or certificates, which shall be
in such form as may be approved by the board of directors, certifying the number
and class of shares in the Company owned by him. The certificates for the
respective classes of such shares shall be numbered in the order in which they
are issued and shall be signed by the chairman, the president, or a vice
president and by the secretary, an assistant secretary, the treasurer, or
assistant treasurer; provided that, if such certificates are countersigned by a
transfer agent or registrar, the signatures of such officers upon such
certificates may be facsimiles, stamped, or printed. If an officer who has
signed or whose facsimile signature has been used, stamped, or printed on any
certificates ceases to be such officer because of death, resignation or other
reason before such certificates are delivered by the Company, such certificates
shall nevertheless be conclusively deemed to be valid if countersigned by any
such transfer agent or registrar. A record shall be kept of the name of the
owner or owners of the shares represented by each such certificate and the
number of shares represented thereby, the date thereof, and in case of
cancellation, the date of cancellation. Every certificate surrendered to the
Company for exchange or transfer shall be cancelled and no new certificate or
certificates shall be issued in exchange for any existing certificates until
such existing certificates shall have been so cancelled, except in cases
provided for in s.4.4.
s.4.2 Transfer of Shares. Any certificate for shares of the Company
shall be transferable in person or by attorney upon the surrender of the
certificate to the Company or any transfer agent for the Company (for the class
of shares represented by the certificate surrendered) properly endorsed for
transfer and accompanied by such assurances as the Company or its transfer agent
may require as to the genuineness and effectiveness of each necessary
endorsement. The person in whose name any shares stand on the books of the
Company shall, to the fullest extent permitted by law, be conclusively deemed to
be the unqualified owner and holder of the shares and entitled to exercise all
rights of ownership, for all purposes relating to the Company. Neither the
Company nor any transfer agent of the Company shall be required to recognize any
equitable interest in, or any claim to, any such shares on the part of any other
person, whether disclosed on the certificate or any other way, nor shall they be
required to see to the performance of any trust or other obligation.
s.4.3 Regulations. The board of directors may make such rules and
regulations as it may deem expedient or advisable, not inconsistent with these
regulations, concerning the issue, transfer, and registration of certificates
for shares. It may appoint one or more transfer agents or one or more
registrars, or both, and may require all certificates for shares to bear the
signature of either or both.
7
s.4.4 Lost, Destroyed or Stolen Certificates. A new share certificate
or certificates may be issued in place of any certificate theretofore issued by
the Company which is alleged to have been lost, destroyed, or wrongfully taken
upon: (a) the execution and delivery to the Company by the person claiming the
certificate to have been lost, destroyed, or wrongfully taken of an affidavit of
that fact in form satisfactory to the Company, specifying whether or not the
certificate was endorsed at the time of such alleged loss, destruction or
taking, and (b) the receipt by the Company of a surety bond, indemnity
agreement, or any other assurances satisfactory to the Company and to all
transfer agents and registrars of the class of shares represented by the
certificate against any and all losses, damages, costs, expenses, liabilities or
claims to which they or any of them may be subjected by reason of the issue and
delivery of such new certificate or certificates or with respect to the original
certificate.
ARTICLE 5
Examination of Books by Shareholders
The board of directors may make reasonable rules and regulations
prescribing under what conditions the books, records, accounts, and documents of
the Company, or any of them, shall be open to the inspection of the
shareholders. No shareholder shall be denied any right which is conferred by
s.1701.37, Ohio Revised Code, or any other applicable law to inspect any book,
record, account, or document of the Company. An original or duplicate stock
ledger showing the names and addresses of the shareholders and the number and
class of shares issued or transferred of record to or by them from time to time
shall at all times during the usual hours for business be open to the
examination of every shareholder at the principal office or place of business of
the company in the State of Ohio.
ARTICLE 6
Indemnification and Insurance
s.6.1 Costs Incurred. The Company shall indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative, by reason of the fact that he is or was a director, officer,
employee, or agent of the Company, or is or was serving at the request of the
Company 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 attorneys'
fees, judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit, or proceeding provided
that: (a) he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company; (b) with respect to any
criminal action or proceeding, he had no reasonable cause, to believe his
conduct was unlawful; and (c) in any action or suit by or in the right of the
Company, no indemnification shall be made with respect to any amounts paid in
settlement or with respect to any claim, issue, or matter as to which such
person shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the Company unless and only to the extent that the
Court of Common Pleas or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the court of common pleas
or such other court shall deem proper. The termination of any action, suit, or
proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo
contendere or its equivalent, shall not of itself, create a presumption that the
person did not act in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the Company, and with
8
respect to any criminal action or proceeding, he had reasonable cause to believe
that his conduct was unlawful.
s.6.2 Indemnification Procedure. Any indemnification under s.6.1 shall
be made by the Company only if and as authorized in the specific case upon a
determination that indemnification of the director, trustee, officer, employee,
or agent is proper in the circumstances because he has met the applicable
standard of conduct set forth in s.6.1. Such determination shall be made by one
of the following methods: (a) by a majority vote of a quorum consisting of
directors of the Company 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 vote of a quorum of disinterested directors so directs, in a
written opinion by independent legal counsel retained by the Company, 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 Company 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 Franklin County, Ohio, or the court in which such
action, suit, or proceeding was brought.
s.6.3 Advance Payment of Costs. Expenses, including attorneys' fees,
incurred in defending any action, suit, or proceeding referred to in s.6.1 may
be paid by the Company in advance of the final disposition of such action, suit,
or proceeding as authorized by the directors in the specific case upon receipt
of an undertaking by or on behalf of the director, trustee, officer, employee,
or agent to repay such amount unless it shall ultimately be determined that he
is entitled to be indemnified by the Company as authorized in this Article.
s.6.4 Non-Exclusive. The indemnification authorized in this Article
shall not be deemed exclusive of any other rights to which persons seeking
indemnification may be entitled under any agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
s.6.5 Insurance. The Company may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee, or agent of
the Company, or is or was serving at the request of the Company 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 Company
would have the power to indemnify him against such liability under this Article
or under Chapter 1701, Ohio Revised Code.
s.6.6 Survival. The indemnification authorized in this Article shall
continue as to a person who has ceased to be a director, trustee, officer,
employee, or agent.
s.6.7 Successors. The indemnification authorized in this Article shall
inure to the benefit of the heirs, executors, and administrators of any person
entitled to indemnification under this Article.
9
ARTICLE 7
Seal
The board of directors may adopt and alter a corporate seal and use the
same or a facsimile thereof, but failure to affix the corporate seal, if any,
shall not affect the validity of any instrument.
ARTICLE 8
Fiscal Year
The fiscal year of the Company shall be fixed and may be changed from
time to time by the board of directors.
ARTICLE 9
Control Share Acquisitions
Section 1701.831, Ohio Revised Code, shall not apply to control share
acquisitions of shares of the Company.
ARTICLE 10
Deleted in its entirety 3/30/00.
ARTICLE 11
Amendment of Requlations
These regulations may be amended or new regulations may be adopted: (a)
at any meeting of the shareholders held for such purpose, by the affirmative
vote of the holders of record of shares entitling them to exercise a majority of
the voting power on such proposal; or (b) without a meeting of the shareholders,
by the written consent of the holders of record of shares entitling them to
exercise a majority of the voting power on such proposal. If any amendment or
new regulations are adopted without a meeting of the shareholders, the secretary
shall mail a copy of the amendment or new regulations to each shareholder who
would have been entitled to vote on the proposal but who did not participate in
the adoption of the amendment or new regulations.
ARTICLE 12
Close Corporation Agreement
These regulations may be superseded in whole or part, at any time and
from time to time, by any close corporation agreement between the shareholders
of the Company pursuant to s.1701.591, Ohio Revised Code, or any similar statute
which may hereafter be enacted.
10