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Exhibit 3.1
POLYONE CORPORATION
REGULATIONS
(Effective as of the Effective Date of the Consolidation)
(As Revised 8/15/00)
SHAREHOLDERS' MEETINGS
1. Time and Place of Meetings. All meetings of the Shareholders for the
election of Directors or for any other purpose will be held at such time and
place, within or without the State of Ohio, as may be designated by the Board
or, in the absence of such designation, by the Chairman, the President, or the
Secretary, and stated in the notice of the meeting. The Board may postpone and
reschedule any previously scheduled annual or special meeting of the
Shareholders.
2. Annual Meeting. An annual meeting of the Shareholders will be held
at such date and time as may be designated from time to time by the Board, at
which the Shareholders will elect by a plurality vote the Directors to succeed
those whose terms expire at such meeting and will transact such other business
as may properly be brought before the meeting in accordance with Regulation 8.
3. Special Meetings. (a) Special meetings of the Shareholders may be
called only by (i) the Chairman, (ii) the President, (iii) the Secretary within
10 calendar days after receipt of the written request of a majority of the total
number of Directors that the Corporation would have if there were no vacancies
(the "Whole Board") or (iv) any person or persons who hold not less than 50% of
all the shares entitled to be voted at such meeting. Any such request by a
majority of the Whole Board must be sent to the Chairman and the Secretary and
must state the purpose or purposes of the proposed meeting. Special meetings of
holders of the outstanding Preferred Shares, if any, may be called in the manner
and for the purposes provided in the resolution or resolutions providing for the
issuance of such Preferred Shares (collectively, a "Preferred Share
Designation").
(b) Upon written request by any person or persons entitled to
call a meeting of Shareholders delivered in person or by registered mail to the
Chairman, the President or the Secretary, such Officer shall forthwith cause
notice of the meeting to be given to the Shareholders entitled to notice of such
meeting in accordance with Regulation 4. If such notice shall not be given
within 60 days after the delivery or mailing of such request, the person or
persons requesting the meeting may fix the time of the meeting and give, or
cause to be given, notice in the manner provided in Regulation 4.
4. Notice of Meetings. Except as otherwise provided by law, written
notice of every meeting of Shareholders, stating the place, date and hour of the
meeting, and in the case of a
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special meeting, the purpose or purposes for which the meeting is called, shall
be given not less than 7 nor more than 60 calendar days before the date of the
meeting to each Shareholder of record entitled to vote at such meeting. If such
notice is mailed, it shall be addressed to the Shareholders at their respective
addresses as they appear on the records of the Corporation, and notice shall be
deemed to have been given on the day so mailed. When a meeting is adjourned to
another place, date, or time, written notice need not be given of the adjourned
meeting if the place, date, and time thereof are announced at the meeting at
which the adjournment is taken; provided, however, that if the adjournment is
for more than 30 calendar days, or if after the adjournment a new record date is
fixed for the adjourned meeting, written notice of the place, date, and time of
the adjourned meeting must be given in conformity herewith. At any adjourned
meeting, any business may be transacted which properly could have been
transacted at the original meeting.
5. Inspectors. The Board shall appoint one or more inspectors of
election to act at each meeting of Shareholders and to make a written report
thereof. The Board may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate is able to
act at a meeting of Shareholders, the presiding Officer of the meeting shall
appoint one or more substitute inspectors.
6. Quorum. Except as otherwise provided by law or in a Preferred Share
Designation, the holders of a majority of the shares issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, will
constitute a quorum at all meetings of the Shareholders for the transaction of
business thereat. If, however, a quorum is not present or represented at any
meeting of Shareholders, the holders of a majority of the voting shares
represented at such meeting will have the power to adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
is present or represented.
7. Voting. Except as otherwise provided by law, by the Articles of
Incorporation, or in a Preferred Share Designation, each Shareholder will be
entitled at every meeting of the Shareholders to one vote for each share having
voting power standing in the name of such Shareholder on the books of the
Corporation on the record date for the meeting and such votes may be cast either
in person or by proxy. A Shareholder may revoke any proxy that is not
irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or another duly executed proxy bearing
a later date with the Secretary. The vote upon election of any Director shall be
by ballot. The vote upon any other question brought before the meeting of
Shareholders may be by voice vote, unless otherwise required by the Articles of
Incorporation or the Regulations or unless the Chairman or the holders of a
majority of the outstanding shares of all classes entitled to vote thereon
present in person or by proxy at such meeting otherwise determine. Every vote
taken by written ballot will be counted by the inspectors of election. When a
quorum is present at any meeting, the affirmative vote of the holders of a
majority of the shares present in person or represented by proxy at the meeting
and entitled to vote on the subject matter, and which has actually been voted,
will be the act of the Shareholders, except in the election of Directors or as
otherwise provided in these Regulations, the Articles of Incorporation, a
Preferred Share Designation, or by law. An abstention shall not represent a vote
cast.
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8. Order of Business. (a) The Chairman, or such other Officer of the
Corporation designated by a majority of the Whole Board, will call meetings of
the Shareholders to order and will act as the presiding Officer thereof. Unless
otherwise determined by the Board prior to the meeting, the presiding Officer of
the meeting of the Shareholders will also determine the order of business and
have the authority in his or her sole discretion to regulate the conduct of any
such meeting, including without limitation by imposing restrictions on the
persons (other than Shareholders of the Corporation or their duly appointed
proxies) who may attend any such Shareholders' meeting, by ascertaining whether
any Shareholder or his or her proxy may be excluded from any meeting of the
Shareholders based upon any determination by the presiding Officer, in his or
her sole discretion, that any such person has unduly disrupted or is likely to
disrupt the proceedings thereat, and by determining the circumstances in which
any person may make a statement or ask questions at any meeting of the
Shareholders.
(b) At an annual meeting of the Shareholders, only such
business will be conducted or considered as is properly brought before the
meeting. To be properly brought before an annual meeting, business must be (i)
specified in the notice of meeting (or any supplement thereto) given in
accordance with Regulation 4, (ii) otherwise properly brought before the meeting
by the presiding Officer or by or at the direction of a majority of the Whole
Board, or (iii) otherwise properly requested to be brought before the meeting by
a Shareholder of the Corporation in accordance with Regulation 8(c).
(c) For business to be properly requested by a Shareholder to
be brought before an annual meeting, the Shareholder must (i) be a Shareholder
of the Corporation of record at the time of the giving of the notice for such
annual meeting provided for in these Regulations, (ii) be entitled to vote at
such meeting, and (iii) have given timely notice thereof in writing to the
Secretary. To be timely, a Shareholder's notice must be delivered to or mailed
and received by the Secretary at the principal executive offices of the
Corporation not less than 60 nor more than 90 calendar days prior to the first
anniversary of the date on which the Corporation first mailed its proxy
materials for the preceding year's annual meeting of Shareholders; provided,
however, that in the case of (1) the Corporation's 2001 annual meeting of
Shareholders and (2) any subsequent annual meeting where the date of the annual
meeting is delayed by more than 60 calendar days after the anniversary of the
preceding year's annual meeting, then, in each such case, notice by the
Shareholder to be timely must be so delivered not later than the close of
business on the later of the 90th calendar day prior to such annual meeting or
the 10th calendar day following the day on which public announcement of the date
of such meeting is first made. A Shareholder's notice to the Secretary must set
forth as to each matter the Shareholder proposes to bring before the annual
meeting (A) a description in reasonable detail of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (B) the name and address, as they appear on the
Corporation's books, of the Shareholder proposing such business and the
beneficial owner, if any, on whose behalf the proposal is made, (C) the class
and number of shares of the Corporation that are owned beneficially and of
record by the Shareholders proposing such business and by the beneficial owner,
if any, on whose behalf the proposal is made, and (D) any material interest of
such Shareholder proposing such business and the beneficial owner, if any, on
whose behalf the proposal is made in such business.
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Notwithstanding the foregoing provisions of this Regulation 8(c), a Shareholder
must also comply with all applicable requirements of the Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder with respect to
the matters set forth in this Regulation 8(c). For purposes of this Regulation
8(c) and Regulation 12, "public announcement" means disclosure in a press
release reported by the Dow Jones News Service or comparable national news
service or in a document publicly filed by the Corporation with the Securities
and Exchange Commission pursuant to sections 13, 14, or 15(d) of the Securities
Exchange Act of 1934, as amended, or furnished to Shareholders. Nothing in this
Regulation 8(c) will be deemed to affect any rights of Shareholders to request
inclusion of proposals in the Corporation's proxy statement pursuant to Rule
14a-8 under the Securities Exchange Act of 1934, as amended.
(d) At a special meeting of Shareholders, only such business
may be conducted or considered as is properly brought before the meeting. To be
properly brought before a special meeting, business must be (i) specified in the
notice of the meeting (or any supplement thereto) given in accordance with
Regulation 4 or (ii) otherwise properly brought before the meeting by the
presiding Officer or by or at the direction of a majority of the Whole Board.
(e) The determination of whether any business sought to be
brought before any annual or special meeting of the Shareholders is properly
brought before such meeting in accordance with this Regulation 8 will be made by
the presiding Officer of such meeting. If the presiding Officer determines that
any business is not properly brought before such meeting, he or she will so
declare to the meeting and any such business will not be conducted or
considered.
DIRECTORS
9. Function. The business and affairs of the Corporation will be
managed under the direction of its Board.
10. Number, Election and Terms of Directors. (a) At the effective time
of the consolidation of M.A. Hanna Company ("Hanna") and The Geon Company
("Geon") (the "Effective Time"), the number of Directors of the Corporation
shall be twelve.
(b) The Board or the Shareholders may from time to time, in
the manner set forth below in this Section 10(b), fix or change the size of the
Board to a total number of no fewer than six Directors and no more than 18
Directors; provided that, through the date of the Corporation's annual meeting
of Shareholders in 2002 (the "2002 Annual Meeting Date"), each increase or
decrease in the size of the Board shall be by two or a multiple of two. The
Board may, subject to the limitations contained in the immediately preceding
sentence regarding the number of Directors and the requirement that any increase
or decrease in the number of Directors be effected by a multiple of two, fix or
change the number of Directors by the affirmative vote of two-thirds of the
Whole Board. The Shareholders may, subject to the limitations contained in the
first sentence of this paragraph regarding the number of Directors and the
requirement that any increase or decrease in the number of Directors be effected
by a multiple of two, fix or change
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the number of Directors at a meeting of the Shareholders called for the purpose
of electing Directors (i) by the affirmative vote of the holders of shares
entitling them to exercise three-quarters of the voting power of the Corporation
represented at the meeting and entitled to elect Directors or (ii) if the
proposed change in the number of Directors is recommended by two-thirds of the
Whole Board, by the affirmative vote of the holders of shares entitling them to
exercise a majority of the voting power of the Corporation represented at the
meeting and entitled to elect Directors. No reduction in the number of Directors
shall of itself have the effect of shortening the term of any incumbent
Director. If the Board increases the number of Directors, it may fill the
vacancy or vacancies created by the increase in the number of Directors for the
respective unexpired terms in accordance with the provisions of Regulation 13.
If the Shareholders increase the number of Directors and fail to fill the
vacancy or vacancies created thereby, the Board may fill such vacancy or
vacancies for the respective unexpired terms in accordance with the provisions
of Regulation 13.
(c) Directors shall hold office until their successors are
chosen and qualified, or until their earlier death, retirement, resignation, or
removal.
(d) The foregoing provisions of this Regulation 10 are subject
to the provisions of any Preferred Share Designation to the contrary that may be
adopted with the approval of three-quarters of the Whole Board.
11. Chairman of the Board, Chairman of the Executive Committee, and
Chairmen of Other Committees. The Board may from time to time select from its
members one or more individuals to serve as Chairman of the Board, Chairman of
the Executive Committee (if the Board appoints an Executive Committee), and
Chairman of any of the other committees of the Board. The positions of Chairman
of the Board, Chairman of the Executive Committee, and Chairman of any other
committee of the Board are not Officer positions (and the Corporation shall have
no Officer position known as Chairman of the Board), but are strictly Director
positions, the sole authority and responsibility of which is to preside at
meetings of the Shareholders, the Board, or the applicable committee, as the
case may be. The Chairman of the Board shall, if present, preside at meetings of
the Board and at meetings of the Shareholders. In the absence of the Chairman of
the Board, the President shall preside at such meetings.
12. Nominations. Only individuals who are nominated in accordance with
the following procedures shall be eligible for election as Directors. Subject to
the provisions of any Preferred Share Designation, nominations for the election
of Directors may be made only:
(a) through the date of the Corporation's annual meeting of
Shareholders to be held in 2002 (the "2002 Annual Meeting Date"), by
the affirmative vote of three-quarters of the Whole Board and
three-quarters of the members of the Nominating Committee, if any, then
in office; provided, however, that if the Nominating Committee is
unable, for any reason, to approve by the requisite vote a nomination
for election of a particular Director or Directors, the nomination
shall be made instead by the affirmative vote of a majority of the
Whole Board and three-quarters of the members of a committee to be
comprised of (i) in the case of a nomination for election to fill a
Director position that
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was held, immediately after the Effective Time, by an individual who
had been a Director of M.A. Hanna Company up until the Effective Time
(a "Former Hanna Director"), all of the Directors then in office who
either are Former Hanna Directors or were elected to fill a Director
position originally held, immediately after the Effective Time, by a
Former Hanna Director, and (ii) in the case of a nomination for
election to fill a Director position that was held, immediately after
the Effective Time, by an individual who had been a Director of The
Geon Company up until the Effective Time (a "Former Geon Director"),
all of the Directors then in office who either are Former Geon
Directors or were elected to fill a Director position originally held,
immediately after the Effective Time, by a Former Geon Director;
provided, further, that, in the case of a nomination for election to
fill a Director position that resulted from an increase in the size of
the Board after the Effective Time in accordance with Regulation 13,
such nomination shall be made by the affirmative vote of three-quarters
of the Whole Board if the Nominating Committee is unable, for any
reason, to approve by the requisite vote a nomination to fill such
Director position,
(b) after the 2002 Annual Meeting Date, by the affirmative
vote of two-thirds of the Whole Board, and
(c) whether before or after the 2002 Annual Meeting Date, by
any Shareholder who is a Shareholder of record at the time of giving of
notice of an annual meeting of Shareholders who is entitled to vote for
the election of Directors at that meeting and who complies with the
procedures set forth below in the remainder of this Regulation 12.
All nominations by Shareholders must be made pursuant to timely notice in proper
written form to the Secretary. To be timely, a Shareholder's notice must be
delivered to or mailed and received by the Secretary at the principal executive
offices of the Corporation not less than 60 nor more than 90 calendar days prior
to the first anniversary of the date on which the Corporation first mailed its
proxy materials for the preceding year's annual meeting of Shareholders;
PROVIDED, HOWEVER, that in the case of (1) the Corporation's 2001 annual meeting
of Shareholders and (2) any subsequent annual meeting where the date of the
annual meeting is delayed by more than 60 calendar days after the anniversary of
the preceding year's annual meeting, then, in each such case, notice by the
Shareholder to be timely must be so delivered not later than the close of
business on the later of the 90th calendar day prior to such annual meeting or
the 10th calendar day following the day on which public announcement of the date
of such meeting is first made. To be in proper written form, such Shareholder's
notice must set forth or include (i) the name and address, as they appear on the
Corporation's books, of the Shareholder giving the notice and of the beneficial
owner, if any, on whose behalf the nomination is made; (ii) a representation
that the Shareholder giving the notice is a holder of record of shares of the
Corporation entitled to vote at such annual meeting and intends to appear in
person or by proxy at the annual meeting to nominate the person or persons
specified in the notice; (iii) the class and number of shares of the Corporation
owned beneficially and of record by the Shareholder giving the notice and by the
beneficial owner, if any, on whose behalf the nomination is made; (iv) a
description of all arrangements or understandings between or among any of (A)
the Shareholder
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giving the notice, (B) the beneficial owner on whose behalf the notice is given,
(C) each nominee, and (D) any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be made by the
Shareholder giving the notice; (v) such other information regarding each nominee
proposed by the Shareholder giving the notice 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; and (vi) the signed consent of each nominee to
serve as a Director of the Corporation if so elected. At the request of the
Board, any person nominated by the Board for election as a Director must furnish
to the Secretary that information required to be set forth in a Shareholder's
notice of nomination which pertains to the nominee. The presiding Officer of any
annual meeting will, if the facts warrant, determine that a nomination was not
made, in accordance with the procedures prescribed by this Regulation 12, and if
he or she should so determine, he or she will so declare to the meeting and the
defective nomination will be disregarded. Notwithstanding the foregoing
provisions of this Regulation 12, a Shareholder must also comply with all
applicable requirements of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder with respect to the matters set forth in
this Regulation 12.
13. Newly Created Directorships and Vacancies. Subject to the rights,
if any, of the holders of any series of Preferred Shares to elect additional
Directors under circumstances specified in a Preferred Share Designation, newly
created directorships resulting from any increase in the number of Directors and
any vacancies on the Board resulting from death, resignation, disqualification,
removal, or other cause will be filled by election, (a) at any time through the
2002 Annual Meeting Date, as provided in paragraph (a) of Regulation 12, and (b)
after the 2002 Annual Meeting Date, solely by the affirmative vote of a majority
of the remaining Directors then in office, even though less than a quorum of the
Board, or by a sole remaining Director. Any Director elected in accordance with
the preceding sentence will hold office for the remainder of the term and until
such Director's successor is elected and qualified. No decrease in the number of
Directors constituting the Board will shorten the term of an incumbent Director.
14. Resignation; Removal. Any Director may resign at any time by giving
written notice of his or her resignation to the Chairman or the Secretary. Any
resignation will be effective upon actual receipt by any such person or, if
later, as of the date and time specified in such written notice. Except as may
be otherwise provided in any Preferred Stock Designation, Directors may be
removed from the Board of Directors by the Shareholders only for cause. For
purposes of this Regulation 14, cause for removal shall exist only if it is
proved by clear and convincing evidence in a court of competent jurisdiction
that a Director's 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.
15. Regular Meetings. Regular meetings of the Board may be held
immediately after the annual meeting of the Shareholders and at such other time
and place either within or without the State of Ohio as may from time to time be
determined by the Board. Notice of regular meetings of the Board need not be
given.
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16. Special Meetings. Special meetings of the Board may be called by
the Chairman or the President on one day's notice to each Director by whom such
notice is not waived, given either personally or by mail, telephone, telecopier,
or similar medium of communication, and will be called by the Chairman or the
President in like manner and on like notice on the written request of five or
more Directors. Special meetings of the Board may be held at such time and place
either within or without the State of Ohio as is determined by the Board or
specified in the notice of any such meeting.
17. Quorum. At all meetings of the Board, a majority of the total
number of Directors then in office will constitute a quorum for the transaction
of business. Except for the designation of committees as provided in these
Regulations and except for actions required by these Regulations or the Articles
of Incorporation to be taken by a majority or some greater proportion of the
Whole Board, the act of a majority of the Directors present at any meeting at
which there is a quorum will be the act of the Board. If a quorum is not present
at any meeting of the Board, the Directors present thereat may adjourn the
meeting from time to time to another place, time or date, without notice other
than announcement at the meeting, until a quorum is present. The provisions of
this Regulation 17 notwithstanding, the Board may not approve, or take any
action that would otherwise constitute, a "Change of Control" as that term is
defined in Regulation 42, unless such action is approved by at least
three-quarters of the Whole Board.
18. Participation in Meetings by Telephone Conference. Members of the
Board or any committee designated by the Board may participate in a meeting of
the Board or any such committee, as the case may be, by means of telephone or
video conference or similar means by which all persons participating in the
meeting can hear each other, and such participation in a meeting will constitute
presence in person at the meeting.
19. Nominating Committee. This Regulation 19 shall remain in effect
through the 2002 Annual Meeting Date. It is intended that through the 2002
Annual Meeting Date, the Board, by resolution adopted by the affirmative vote of
at least two-thirds of the Whole Board, will designate annually as the members
of the Nominating Committee of the Board (the "Nominating Committee") four
individuals, two of whom shall be Former Hanna Directors and two of whom shall
be Former Geon Directors. The Nominating Committee shall act as such for all
purposes of these Regulations through the 2002 Annual Meeting, including acting
in the nomination of individuals to serve as Directors as provided in Regulation
12. The Board shall have the power at any time by the affirmative vote of at
least three-quarters of the Whole Board to change the membership of, to fill all
vacancies in, and to discharge the Nominating Committee, with or without cause.
20. Other Committees. The provisions of this Regulation 20 shall be
subject to the provisions of Regulation 11 with respect to any Executive
Committee that may be established by the Board and to the provisions of
Regulation 19 with respect to the Nominating Committee through the 2002 Annual
Meeting Date. Subject to those provisions, the Board may designate one or more
committees, each to consist of one or more Directors. The Board may designate
one or more Directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. In the absence or
disqualification of a
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member of a committee, the member or members present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board, shall have and
may exercise all the powers and authority of the Board in the management of the
business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all documents which may require it; but no such
committee shall have the power or authority in reference to the following
matters: (i) approving or adopting, or recommending to the Shareholders, any
action or matter expressly required by the Ohio General Corporation Law to be
submitted to Shareholders for approval or (ii) adopting, amending, or repealing
any Regulation of the Corporation.
21. Compensation. The Board may establish the compensation and
reimbursement policies for Directors with respect to membership on the Board and
on committees of the Board, attendance at meetings of the Board or committees of
the Board, and for other services by Directors to the Corporation or any of its
subsidiaries.
22. Bylaws. The Board may adopt bylaws, that are not inconsistent with
the Articles of Incorporation or these Regulations, for the conduct of meetings
and the oversight of the management of the business and affairs of the
Corporation.
NOTICES
23. Generally. Except as otherwise provided by law, these Regulations
or the Articles of Incorporation, whenever by law or under the provisions of
these Regulations or the Articles of Incorporation notice is required to be
given to any Director or Shareholder, it will not be construed to require
personal notice, but such notice may be given in writing, by mail, addressed to
such Director or Shareholder, at the address of such Director or Shareholder as
it appears on the records of the Corporation, with postage thereon prepaid, and
such notice will be deemed to be given at the time when the same is deposited in
the United States mail. Notices to Directors may also be given by overnight
courier service, telephone, telecopier, or similar medium of communication or as
otherwise may be permitted by these Regulations.
24. Waivers. Whenever any notice is required to be given by law or
under the provisions of these Regulations or the Articles of Incorporation, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time of the event for which notice is to be
given, will be deemed equivalent to such notice. Attendance of a person at a
meeting will constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
OFFICERS
25. Number and Term of Office. The Corporation shall have a Chief
Executive
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Officer, a President, a Treasurer, and a Secretary, and may have a Chief
Operating Officer, one or more Vice Presidents, one or more of whom may be
designated as Executive or Senior Vice Presidents or by similar titles, and such
other Officers or agents, subordinate to the Chief Executive Officer and the
President, with such titles as the Board may from time to time determine, each
to have such authority, functions, or duties as in these Regulations provided or
as the Board may from time to time determine, and each to hold office for such
term as may be prescribed by the Board and until his or her successor shall have
been chosen and shall qualify or until his or her death, retirement,
resignation, or removal as provided in Regulation 28 or 29. One person may hold
and perform the duties of any two or more of offices but no Officer shall
execute, acknowledge, or verify any instrument in more than one capacity if the
instrument is required by law, the Articles of Incorporation, or these
Regulations to be executed, acknowledged, or verified by two or more Officers.
26. Responsibilities of Chief Executive Officer. The Chief Executive
Officer shall have the general management and control of the affairs and
business of the Corporation, subject to the Board of Directors. Subject to
action by the Board of Directors, he or she may appoint and discharge agents and
employees and fix their compensation, and he or she shall see that all orders
and resolutions of the Board of Directors are carried into effect. He or she
shall have the power to execute bonds, mortgages and other contracts, agreements
and instruments of the Corporation, and shall do and perform such other duties
as are incident to his or her office or as from time to time may be assigned to
him by the Board of Directors or which are or may at any time be authorized or
required by law.
In the absence or disability of the Officer designated as Chief
Executive Officer, the Chairman of the Board, Vice Chairman of the Board, or
President, if any, as determined by the Board of Directors, shall perform any
and all of the duties of the Chief Executive Officer. Subject to limitations or
procedures established by the Board of Directors, the Chief Executive Officer
may delegate from time to time his or her authority to act.
27. Authority and Duties of Officers. Subject to the provisions of
Regulations 26 the Officers of the Corporation shall have such authority and
shall perform such duties as are customarily incident to their respective
offices, or as may be determined by the Board, regardless of whether such
authority and duties are customarily incident to such offices.
28. Removal. Any Officer may at any time be removed, either with or
without cause, by the Board or any authorized committee thereof, or, except in
the case of any Officer elected by the Board or an authorized committee thereof,
by any superior Officer upon whom such power may be conferred by the Board or
any authorized committee thereof, in any case without prejudice to the contract
rights, if any, of such Officer.
29. Resignation. Any Officer may resign at any time by giving notice to
the Board, the Chief Executive Officer, the President, or the Secretary of the
Corporation. Any such resignation shall take effect at the date of receipt of
such notice or at any later date specified therein and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
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30. Vacancies. A vacancy in any office because of death, retirement,
resignation, removal, or any other cause may be filled in the manner prescribed
in these Regulations for election to such office.
31. Compensation. Subject to the respective contractual rights of any
person under any employment agreements presently or hereafter in effect between
any person and the Corporation, the compensation of the Chief Executive Officer,
President, Chief Operating Officer, and agents of the Corporation who are also
Directors of the Corporation will be fixed by the Board or a committee of the
Board delegated that responsibility by the Board. The Board may fix, or delegate
the power to fix, the compensation of other Officers to a committee of the Board
or an Officer of the Corporation.
INDEMNIFICATION
32. Actions by Others. The Corporation (1) 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 (other than an action by or in the right of the
Corporation) by reason of the fact that he or she is or was a Director or an
Officer of the Corporation and (2) except as otherwise required by Regulation
33, may 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 (other than an action
by or in the right of the Corporation) by reason of the fact that he or she is
or was an employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a Director, Officer, employee, agent of, or
participant in another corporation, 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 or her in
connection with such action, suit, or proceeding if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any action, suit, or proceeding by judgment, order,
settlement, 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 or she reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
33. Actions by or in the Right of the Corporation. The Corporation
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 or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
he or she is or was a Director or Officer of the Corporation, and the
Corporation may indemnify any person who was or is a party or is threatened to
made a party to any threatened, pending, or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he or she is or was an employee or agent of the Corporation or is or
was serving at the request of the Corporation as a Director, Officer,
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employee, agent of, or participant in another corporation, partnership, joint
venture, trust, or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall be made in
respect of 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 or
her duty to the Corporation 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 which the court of common pleas or such
other court shall deem proper.
34. Successful Defense. To the extent that a person who is or was a
Director, Officer, employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit, or proceeding referred
to in Regulations 32 or 33, or in defense of any claim, issue, or matter
therein, he or she shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection therewith.
35. Specific Authorization. To obtain indemnification under Regulations
32 through 43 (the "Indemnification Regulations"), a claimant shall submit to
the Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to the claimant and is
reasonably necessary to determine whether and to what extent the claimant is
entitled to indemnification. Any indemnification under Regulations 32 or 33
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the Director,
Officer, employee or agent is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in said Regulations 32 and 33.
Such determination shall be made by (a) the Shareholders, (b) the Board by a
majority vote of a quorum consisting of Disinterested Directors, or (c) (1) even
if such quorum is not obtainable, if a quorum of Disinterested Directors so
directs or (2) if a Change of Control shall have occurred, by an Independent
Counsel in a written opinion, which Independent Counsel shall be selected by a
majority vote of a quorum of Disinterested Directors or, if a Change of Control
shall have occurred, by the claimant. If it is so determined that the claimant
is entitled to indemnification, payment to the claimant shall be made within 10
days after such determination.
36. Suit Against Corporation. If a claim under the Indemnification
Regulations is not paid in full by the Corporation within 30 days after a
written claim pursuant to Regulation 32 has been received by the Corporation,
the claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also 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 defending any proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the Ohio General Corporation Law or the
Indemnification Regulations for the Corporation to indemnify the claimant for
the amount
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claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board, Independent Counsel
or 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 set forth in the
Ohio General Corporation Law or the Indemnification Regulations, nor an actual
determination by the Corporation (including its Board, Independent Counsel or
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.
37. Corporation Bound. If a determination shall have been made pursuant
to Regulation 32 that the claimant is entitled to indemnification, the
Corporation shall be bound by such determination in any judicial proceeding
commenced pursuant to Regulation 33.
38. Preclusion. The Corporation shall be precluded from asserting in
any judicial proceeding commenced pursuant to Regulation 33 that the procedures
and presumptions of the Indemnification Regulations are not valid, binding, and
enforceable and shall stipulate in such proceeding that the Corporation is bound
by all the provisions of the Indemnification Regulations.
39. Right of Indemnity not Exclusive. The indemnification and
advancement of expenses provided by the Indemnification Regulations shall not be
deemed exclusive of any other rights to which those seeking indemnification may
be entitled under any Regulation, agreement, vote of Shareholders or
disinterested Directors, or otherwise, both as to action in his or her 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 a Director, Officer, employee
or agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
40. Insurance. The Corporation may purchase and maintain 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, Officer, employee, or agent of or participant in another corporation,
partnership, joint venture, trust, or other enterprise against any liability
asserted against him or her and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the Corporation would
have the power to indemnify him or her against such liability under the
provisions of the Indemnification Regulations, Section 1701.13(E) of the Ohio
General Corporation Law or otherwise.
41. Invalidity of any Provisions of this Article. The invalidity or
unenforceability of any provision of the Indemnification Regulations shall not
affect the validity or enforceability of the remaining provisions of the
Indemnification Regulations, and, to the fullest extent possible, such
provisions of the Indemnification Regulations (including, without limitation,
each such portion of any of the Indemnification Regulations containing any such
provision held to be invalid, illegal, or unenforceable) shall be construed so
as to give effect to the intent manifested by the provision held invalid,
illegal, or unenforceable.
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42. Definitions. For purposes of the Indemnification Regulations:
(A) "Change of Control" means:
(1) the acquisition by any individual, entity, or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended) (a "Person")
of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of voting securities of
the Corporation where such acquisition causes such Person to
own 20% or more of the combined voting power of the then
outstanding voting securities of the Corporation entitled to
vote generally in the election of Directors (the "Outstanding
Corporation Voting Securities"); PROVIDED, HOWEVER, that for
purposes of this paragraph (1), the following acquisitions
shall not be deemed to result in a Change of Control: (i) any
acquisition directly from the Corporation, (ii) any
acquisition by the Corporation, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or
maintained by the Corporation or any corporation controlled by
the Corporation, or (iv) any acquisition by any corporation
pursuant to a transaction that complies with clauses (i),
(ii), and (iii) of paragraph (3) below; PROVIDED, FURTHER,
that if any Person's beneficial ownership of the Outstanding
Corporation Voting Securities reaches or exceeds 20% as a
result of a transaction described in clause (i) or (ii) above,
and such Person subsequently acquires beneficial ownership of
additional voting securities of the Corporation, such
subsequent acquisition shall be treated as an acquisition that
causes such Person to own 20% or more of the Outstanding
Corporation Voting Securities; and PROVIDED, FURTHER, that if
at least a majority of the members of the Incumbent Board (as
defined below) determines in good faith that a Person has
acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of
the Outstanding Corporation Voting Securities inadvertently,
and such Person divests as promptly as practicable a
sufficient number of shares so that such Person beneficially
owns (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) less than 20% of the Outstanding Corporation
Voting Securities, then no Change of Control shall have
occurred as a result of such Person's acquisition; or
(2) Individuals who, as of the Effective Time,
constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board;
PROVIDED, HOWEVER, that any individual becoming a Director
subsequent to the Effective Time, whose election, or
nomination for election by the Corporation's Shareholders, was
approved by a vote of at least a majority of the Directors
then comprising the Incumbent Board shall be considered a
member of the Incumbent Board, except that, for this purpose,
any such individual whose initial assumption of office occurs
as a result of an actual or threatened election contest with
respect to the election or removal of Directors or other
actual or threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board shall not be
considered a member of the Incumbent Board; or
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(3) the consummation of a reorganization, merger or
consolidation or sale or other disposition of all or
substantially all of the assets of the Corporation or the
acquisition of assets of another corporation ("Business
Combination"); excluding, however, such a Business Combination
pursuant to which (i) all or substantially all of the
individuals and entities who were the beneficial owners of the
Outstanding Corporation Voting Securities immediately prior to
such Business Combination beneficially own, directly or
indirectly, more than 60% of, respectively, the then
outstanding common shares and the combined voting power of the
then outstanding voting securities entitled to vote generally
in the election of Directors, as the case may be, of the
Corporation resulting from such Business Combination
(including, without limitation, a corporation that as a result
of such transaction owns the Corporation or all or
substantially all of the Corporation's assets either directly
or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such
Business Combination of the Outstanding Corporation Voting
Securities, (ii) no Person (excluding any employee benefit
plan (or related trust) of the Corporation or such corporation
resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then
outstanding common shares of the corporation resulting from
such Business Combination or the combined voting power of the
then outstanding voting securities of such corporation except
to the extent that such ownership existed prior to the
Business Combination, and (iii) at least a majority of the
members of the board of Directors of the corporation resulting
from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement,
or of the action of the Board, providing for such Business
Combination; or
(4) approval by the Shareholders of the Corporation
of a complete liquidation or dissolution of the Corporation.
(B) "Disinterested Director" means a Director of the
Corporation who is not and was not a party to the matter in respect of
which indemnification is sought by the claimant.
(C) "Independent Counsel" means a law firm, a member of a law
firm, or an independent practitioner, experienced in matters of
corporation law that or who, under the applicable standards of
professional conduct then prevailing, would not have a conflict of
interest in representing either the Corporation or the claimant in an
action to determine the claimant's rights under the Indemnification
Regulations.
43. Notice. Any notice, request, or other communication required or
permitted to be given to the Corporation under the Indemnification Regulations
shall be in writing and either delivered in person or sent by telecopy, telex,
telegram, overnight mail, or courier service, or certified or registered mail,
postage prepaid, return receipt requested to the Secretary of the Corporation
and shall be effective only upon receipt by the Secretary.
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SHARES
44. Certificates. The shares of stock of the Corporation will be
represented by certificates, provided that the Board may provide by resolution
or resolutions that some or all of any or all classes or series of its shares
shall be uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the Board,
every holder of shares represented by certificates and upon request every holder
of uncertificated shares shall be entitled to have a certificate signed by, or
in the name of, the Corporation by the Chairman of the Board, or the President
or a Vice President, and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Corporation, certifying the number
and class of shares registered in certificate form. Any or all of the signatures
on the certificate may be a facsimile. In case any Officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed on a
certificate shall have ceased to be such Officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he or it were such Officer, transfer agent, or registrar at
the date of issue.
45. Classes of Shares. The designations, preferences, and relative
participating, optional or other special rights of the various classes of shares
or series thereof, and the qualifications, limitations, or restrictions thereof,
will be set forth in full or summarized on the face or back of the certificates
which the Corporation issues to represent its shares or, in lieu thereof, such
certificates will set forth the office of the Corporation from which the holders
of certificates may obtain a copy of such information.
46. Lost, Stolen or Destroyed Certificates. The Secretary may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen, or destroyed, upon making of an affidavit of that fact, satisfactory to
the Secretary, by the person claiming the share certificate to be lost, stolen
or destroyed. As a condition precedent to the issuance of a new certificate or
certificates, the Secretary may require the owners of such lost, stolen, or
destroyed certificate or certificates to give the Corporation a bond in such sum
and with such surety or sureties as the Secretary may direct as indemnity
against any claims that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen, or destroyed or the issuance of
the new certificates.
47. Record Dates. (a) In order that the Corporation may determine the
Shareholders entitled to notice of or to vote at any meeting of Shareholders or
any adjournment thereof, the Board may fix a record date, which will not be more
than 60 calendar days before the date of such meeting. If no record date is
fixed by the Board, the record date for determining Shareholders entitled to
notice of or to vote at a meeting of Shareholders will be at the close of
business on the calendar day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the calendar day next
preceding the day on which the meeting is held. A determination of Shareholders
of record entitled to notice of or to vote at a meeting of
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the Shareholders will apply to any adjournment of the meeting; provided,
however, that the Board may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the
Shareholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the Shareholders entitled to exercise any rights
in respect of any change, conversion or exchange of shares, or for the purpose
of any other lawful action, the Board may fix a record date, which record date
will not be more than 60 calendar days prior to such action. If no record date
is fixed, the record date for determining Shareholders for any such purpose will
be at the close of business on the calendar day on which the Board adopts the
resolution relating thereto.
(c) The Corporation will be entitled to treat the person in
whose name any share is registered as the owner thereof for all purposes, and
will not be bound to recognize any equitable or other claim to, or interest in,
such share on the part of any other person, whether or not the Corporation has
notice thereof, except as expressly provided by applicable law.
GENERAL
48. Fiscal Year. The fiscal year of the Corporation will be the
calendar year or such other fiscal year as may be fixed from time to time by the
Board.
49. Seal. The corporate seal shall have inscribed thereon the name of
the Corporation and the words "Corporate Seal, Ohio". The corporate seal of the
Corporation may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
50. Reliance Upon Books, Reports, and Records. Each Director, each
member of a committee designated by the Board, and each Officer of the
Corporation will, in the performance of his or her duties, be fully protected in
relying in good faith upon the records of the Corporation and upon such
information, opinions, reports, or statements presented to the Corporation by
any of the Corporation's Officers or employees, or committees of the Board, or
by any other person or entity as to matters the Director, committee member, or
Officer believes are within such other person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Corporation.
51. Amendments. Except as otherwise provided by law or by the Articles
of Incorporation or these Regulations, these Regulations or any of them may be
amended in any respect or repealed at any time (i) by the Shareholders at a
meeting held for that purpose, provided notice of the proposed amendment or
repeal be contained in the notice of the meeting, by the affirmative vote of the
holders of shares entitling them to exercise two-thirds of the voting power of
the Corporation on the proposal or (ii) by the written consent of the holders of
shares entitling them to exercise two-thirds of the voting power of the
Corporation on the proposal. The provisions of this Regulation 51
notwithstanding , the Shareholders may not modify any of Regulations 10, 12 and
19 while those provisions remain in effect pursuant to their terms without
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the affirmative vote of the holders of shares entitling them to exercise
three-quarters of the voting power of the Corporation on the proposal.
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