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Exhibit 3(ii)
AMENDED AND RESTATED CODE OF REGULATIONS
OF
MYERS INDUSTRIES, INC.
Effective as of April 24, 1997
ARTICLE I
SHAREHOLDERS
SECTION 1. ANNUAL MEETING
The Annual Meeting of Shareholders of the Company for the election of
Directors, the consideration of financial statements and other reports to be
laid before such meeting, and the transaction of such other business as may be
brought before such meeting shall be held on such date and at such hour during
the fourth calendar month following the close of the fiscal year of the
corporation as may be designated by the Board of Directors, the Chairman of the
Board or the President and specified in the notice of the meeting. Upon due
notice there may also be considered and acted upon at an Annual Meeting any
matter which could properly be considered and acted upon at a Special Meeting.
SECTION 2. SPECIAL MEETINGS
Special Meetings of Shareholders of the Company may be held on any
business day when called by the Chairman of the Board, the President, the Board
of Directors acting at a meeting, a majority of the Directors acting without a
meeting, or persons who hold fifty per cent (50%) of all shares outstanding and
entitled to vote thereat. Upon request in writing delivered either in person or
by registered mail to the President or the Secretary by any persons entitled to
call a Meeting of Shareholders, such Officer shall forthwith cause to be given
to the Shareholders entitled thereto the requisite notice of a meeting to be
held on the specified date, as provided in Section 4 of this Article I. If such
notice is not given within forty-five (45) days after the delivery or mailing of
such request, the persons calling the meeting may fix the time of the meeting
and give notice thereof in the manner provided by law or as provided in these
Regulations, or cause such notice to be given by any designated representative.
Calls for Special Meetings shall specify the purpose or purposes thereof, and no
business shall be considered at any such meeting other than that specified in
the call therefor.
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SECTION 3. PLACE OF MEETINGS
Meetings of Shareholders shall be held at the principal office of the
Company in Ohio unless the Board of Directors acting at a meeting, or a majority
of the Directors acting without a meeting, designates some other place either
within or without the State of Ohio and causes the notice thereof to so specify.
SECTION 4. NOTICE OF MEETINGS -- WAIVER
Not less than seven (7) nor more than sixty (60) days before the date
fixed for a Meeting of Shareholders, written notice stating the time, place and
purposes of such meeting shall be given by or at the direction of the Chairman
of the Board, the President, the Secretary, an Assistant Secretary, or any other
person required or permitted by these Regulations to give such notice. The
notice shall be given by personal delivery or by mail to each Shareholder
entitled to notice of the meeting who is of record as of the date next preceding
the day on which notice is given, or, if another date thereof is duly fixed, of
record as of said date. If mailed, such notice shall be addressed to the
Shareholder at his address as it appears on the records of the Company, and such
notice shall be deemed to have been given on the day when deposited in the mail.
If said record date shall fall on a holiday, the record date should be taken as
of the close of business on the next preceding day which is not a holiday.
Notice of the time, place and purposes of any Meeting of Shareholders
may be waived by any Shareholder in writing, either before or after the holding
of such meeting, which writing shall be filed with and entered upon the records
of the meeting, or by his attendance at any such meeting without protesting the
lack of proper notice prior to or at the commencement of such meeting.
SECTION 5. QUORUM -- ADJOURNMENT
At any meeting of Shareholders, the holders of shares entitling them to
exercise a majority of the voting power of the Company, present in person or by
proxy, shall constitute a quorum for such meeting; provided, however, that no
action required by law, the Amended and Restated Articles of Incorporation or
these Regulations to be authorized or taken by the holders of a designated
proportion of shares of the Company may be authorized or taken by a lesser
proportion.
The holders of a majority of the voting shares represented at the
meeting, whether or not a quorum is present, may adjourn such meeting from time
to time without notice other than by announcement at the meeting. If any meeting
is adjourned, notice of adjournment need not be given if the time and place to
which it is adjourned are fixed and announced at such meeting, except as
otherwise provided in Article III.
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SECTION 6. PROXIES
A person who is entitled to attend a Shareholders' Meeting, to vote
thereat or to execute consents, waivers or releases may be represented at such
meeting or vote thereat, and execute consents, waivers and releases, and
exercise any of his rights by proxy or proxies appointed by a writing signed by
such person as provided by the laws of the State of Ohio.
SECTION 7. FINANCIAL REPORTS
At the Annual Meeting, there shall be laid before the Shareholders a
financial statement, which may be consolidated, consisting of:
1. A Balance Sheet containing a summary of the assets,
liabilities, stated capital and surplus (showing separately
any capital surplus arising from unrealized appreciation of
assets, other capital surplus, and earned surplus) of the
Company as of a date not more than four (4) months before the
date of such meeting; and
2. A Statement of Profit and Loss and Surplus, including a
summary of profits, dividends paid, and other changes in the
surplus accounts of the Company, for the year ending with the
date of such Balance Sheet.
An Opinion signed by the President or a Vice President or Treasurer, or
Assistant Treasurer, or by a public accountant or firm of public accountants,
shall be appended to such financial statement to the effect that the financial
statement presents fairly the position of the Company and the results of its
operations in conformity with generally accepted accounting principles applied
on a basis consistent with that of the preceding period, or such other Opinion
as is in accordance with sound accounting practice.
SECTION 8. ORGANIZATION OF MEETINGS
(a) The Board of Directors shall determine from time to
time the Officer who shall preside at all Meetings of
Shareholders.
(b) The Secretary or Assistant Secretary shall act as
secretary and keep the minutes of all meetings and in
the absence of the Secretary and Assistant Secretary,
the presiding Officer at the meeting shall appoint
any other Officer to act in his place.
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(c) At each meeting an alphabetically arranged list or
classified list of Shareholders of record who are
entitled to vote as of the applicable record date,
showing their respective addresses and the number and
class of shares held by each, shall be produced by
the Secretary, Assistant Secretary or the particular
agent having charge of the transfer of the shares.
This list, when certified by such Officer or agent,
shall be prima facie evidence of the ownership or the
facts shown therein.
SECTION 9. INSPECTORS OF ELECTION
The Directors, in advance of any Meeting of Shareholders, may appoint
any person(s) as an Inspector of Election to act at such meeting or any
adjournments thereof. If Inspector(s) are not so appointed, the Officer or
person acting as Chairman of any such meeting may and on the request of any
Shareholder or his proxy shall make such appointment.
In case any person appointed as Inspector fails to appear or act, the
vacancy may be filled by appointment made by the Directors in advance of the
meeting, or at the meeting by the Officer or person acting as Chairman.
If there are three (3) or more Inspectors, the decision, act or
certification of a majority of them shall be effective in all respects as the
decision, act or certification of all.
The Inspector(s) shall determine the number of shares outstanding, the
voting rights with respect to each of the shares represented at the meeting, the
existence of a quorum, and the authenticity, validity and factual effect of the
proxies; receive votes, ballots, consents, waivers or releases; hear and
determine all matters of challenges, ownership and questions arising in
connection with the voting; count and tabulate all votes, consents, waivers and
releases; determine and announce the result; and do such other acts as are
proper to conduct the election or vote with fairness to all Shareholders.
On request, the Inspector(s) shall make a report in writing on any
question or matter determined by them and execute a certification of any fact
found by them. The certification of the Inspector(s) shall be prima facie
evidence of the facts stated therein and of the results of the voting as
certified by them.
SECTION 10. VOTING
In all cases except where otherwise provided by statute, the Amended
and Restated Articles of Incorporation or these Regulations, every Shareholder
entitled to vote shall be entitled to cast one vote, in person or by proxy, on
each proposal submitted to the meeting for each share held of record by him on
the record date for the determination of the Shareholders entitled to vote at
such meeting, and at any meeting at which a quorum is present all questions and
business which shall come before the meeting shall be determined by the vote of
the holders of a majority of such voting shares as are represented in person or
by proxy.
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ARTICLE II
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS
Except where the law, the Amended and Restated Articles of
Incorporation or these Regulations require action to be authorized or taken by
Shareholders, all of the authority of the Company shall be exercised by the
Board of Directors.
SECTION 2. NUMBER OF DIRECTORS
The Board of Directors of the Company, none of whom need be
Shareholders, shall consist of not less than seven (7) nor more than fifteen
(15) members. Without amendment of these Regulations, the number of Directors
may be fixed or changed at any Annual or Special Meeting of Shareholders called
for that purpose at which a quorum is present, by the affirmative vote of the
holders of a majority of the shares which are represented at the meeting and
entitled to vote on such proposal, but no reduction in the number of Directors
shall of itself have the effect of shortening the term of any incumbent
Director.
SECTION 3. ELECTION OF DIRECTORS
Directors shall be elected at the Annual Meeting of Shareholders, but
when the Annual Meeting is not held or Directors are not elected thereat, they
may be elected at a Special Meeting of Shareholders called and held for that
purpose.
At a meeting of Shareholders at which Directors are to be elected, only
persons nominated as candidates shall be eligible for election as Directors, and
the candidates receiving the greatest number of votes shall be elected. Voting
in the election of Directors may be cumulative as provided by statute.
SECTION 4. TERM OF OFFICE AND VACANCIES
The term of office of each Director shall be one (1) year and Directors
shall hold office until the Annual Meeting of Shareholders next succeeding their
election at which their term of office expires and until their successors are
elected and qualified, or until their earlier resignation, removal from office,
or death. Any Director may resign at any time by oral statement to that effect
made at a meeting of the Board or in a writing to that effect delivered to the
Secretary or Assistant Secretary, such resignation to take effect immediately or
at such other time as the Director may specify.
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In the event of the occurrence of any vacancy or vacancies in the Board
of Directors irrespective of the reason therefor, the remaining Directors,
though less than a majority of the whole authorized number of Directors, may
upon vote of a majority of their number fill such vacancy for the unexpired
term.
SECTION 5. MEETINGS
As soon after each Annual Meeting of Shareholders as practicable, the
Directors shall hold an organizational meeting for the purpose of electing
Officers and the transaction of any other business. Other meetings of the Board
may be held at any time upon the call of the Chairman of the Board, the
President, or any two (2) Directors. Meetings of the Board may be held within or
without the State of Ohio. Written notice of the time and place of each meeting
of the Board shall be given to each Director either by personal delivery, mail,
telegram or cablegram at least two (2) days before the meeting, which notice
need not specify the purposes of the meeting. Unless otherwise specifically
stated in the notice thereof any business may be transacted at any meeting of
the Board.
Notice of any meeting of the Board may be waived by any Director in
writing, either before or after such meeting, or by his attendance at any such
meeting without protesting the lack of proper notice prior to or at the
commencement of such meeting. If any meeting is adjourned, notice of the
adjournment need not be given if the time and place to which it is adjourned are
fixed and announced at such meeting.
SECTION 6. ACTION OF DIRECTORS WITHOUT A MEETING
Any action which may be taken at a meeting of the Board or at a meeting
of a Committee of Directors may be taken without a meeting if approved and
authorized by a writing or writings signed by all the Directors or members of
the Committee, respectively, which writing or writings shall be filed or entered
upon the records of the Company.
SECTION 7. QUORUM
Four (4) Directors shall be necessary to constitute a quorum for the
transaction of business at a meeting, provided that a majority of the Directors
at a meeting duly held, whether or not a quorum exists, may adjourn such meeting
form time to time.
The act of a majority of the Directors present at a meeting at which a
quorum is present is the act of the Board unless the act of a greater number is
required by the Amended and Restated Articles of Incorporation or these
Regulations.
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SECTION 8. COMMITTEES
The Board of Directors may from time to time appoint three (3) or more
Directors to constitute one or more Committees of Directors. The resolution
establishing each such Committee shall specify a designation by which it shall
be known and shall fix its purpose, powers, authority and duration of existence.
The Board of Directors may delegate to any such Committee any of the authority o
the Board, however conferred, other than that of filling vacancies among the
Directors or in any Committee of Directors.
The Board of Directors may likewise appoint one or more Directors as
alternate members of any such Committee, who may take the place of any absent
member or members at any meeting of such Committee.
Each such Committee and each member thereof shall serve at the pleasure
of the Board of Directors, shall act only in the intervals between meetings of
the Board, and shall be subject to the control and direction of the Board. All
actions taken by any such Committee shall be reported in writing to the Board at
its first meeting thereafter.
An act or authorization of any act by any such Committee within the
authority delegated to it by the resolution establishing it shall be effective
for all purposes as the act or authorization by the Board of Directors.
In every case, the affirmative vote of a majority of its members at a
meeting, or the written consent of all of the members of any such Committee
without a meeting, shall be necessary for the approval of any action.
In particular, the Board of Directors may create an Executive Committee
in accordance with the foregoing provisions of this Section. If created, the
Executive Committee shall possess and may exercise all of the powers of the
Board in the management and control of the business of the Company during the
intervals between meetings of the Board subject to the foregoing provisions of
this Section. The Chairman of the Executive Committee shall be determined by the
Board of Directors from time to time. All action taken by the Executive
Committee shall be reported in writing to the Board of Directors at its first
meeting thereafter.
SECTION 9. COMPENSATION
For his attendance at each meeting of the Board of Directors or of a
Committee of Directors, or for other services rendered, each Director shall
receive such reasonable compensation, reimbursement for expenses, and other
benefits as the Board shall from time to time determine and irrespective of any
personal interest of any of them. The Board shall also have authority to provide
for reimbursement for expenses and to establish reasonable compensation and
other benefits for services rendered to the Company by each Officer and may
delegate such authority to one or more Officers or Directors.
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ARTICLE III
RECORD DATES
For any lawful purpose including without limitation the determination
of the Shareholders who are entitled to:
(1) receive notice of or to vote at a Meeting of Shareholders,
(2) receive payment of any dividend or distribution,
(3) receive or exercise rights of purchase of or subscription for,
or exchange or conversion or, shares or other securities,
subject to contract rights with respect thereto, or
(4) participate in the execution of written consents, waivers or
releases,
the Board of Directors may fix a record date which shall not be a date earlier
than the date on which the record date is fixed and, in the cases provided for
in clauses (1), (2) and (3) above, shall not be more than sixty (60) days
preceding the date of the Meeting of Shareholders, or the date fixed for the
payment of any dividend or distribution, or the date fixed for the receipt or
the exercise of rights, as the case may be. The record date for the purpose of
the determination of the Shareholders who are entitled to receive notice of or
to vote at a Meeting of Shareholders shall continue to be the record date for
all adjournments of such meeting, unless the Board of Directors or the persons
who shall have fixed the original record date shall, subject to the limitations
set forth in this Article, fix another date. In case a new record date is so
fixed, notice thereof and of the date to which the meeting shall have been
adjourned shall be given to Shareholders of record as of such date in accordance
with the same requirements as those applying to a meeting newly called. The
Board of Directors may close the share transfer books against transfers of
shares during the whole or any part of the period provided for in this Article,
including the date of the Meeting of Shareholders and the period ending with the
date, if any, to which adjourned.
ARTICLE IV
OFFICERS
SECTION 1. GENERAL PROVISIONS, POWERS AND DUTIES
The Board of Directors may elect a Chairman of the Board and a
Controller and shall elect a President, one or more Vice Presidents, a Secretary
and a Treasurer, and such other Officers as the Board may from time to time deem
necessary. The Chairman of the Board shall be a Director. Any two (2) or more of
such offices may be held by the same person, but no Officer shall execute,
acknowledge, attest or verify any instrument in more than one capacity if such
instrument is required to be executed, acknowledged, attested or verified by two
(2) or more Officers.
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All Officers, as between themselves and the Company, shall respectively
have such authority and perform such duties as are customarily incident to their
respective offices, and as may be specified from time to time by the Board of
Directors, regardless of whether such authority and duties are customarily
incident to such offices. In the absence of any Officer of the Company, or for
any other reason the Board may deem sufficient, the Board may delegate from time
to time the powers or duties of such Officer, or any of them, to any other
Officer or to any Director.
The Board may from time to time delegate to any Officer authority to
appoint and remove subordinate Officers and to prescribe their authority and
duties.
Since the lawful purposes of the Company include the acquisition and
ownership of real property, personal property and property in the nature of
patents, copyrights and trademarks and the protection of the Company's property
rights in its patents, copyrights and trademarks, each of the Officers of the
Company is empowered to execute any power of attorney necessary to protect,
secure, or vest the Company's interest in and to real property, personal
property and its property protectable by patents, trademarks and copyright
registrations and to secure such patents, copyrights and trademark
registrations.
SECTION 2. TERM OF OFFICE AND VACANCIES
The elected Officers of the Company shall hold office until the
succeeding organizational meeting of the Board of Directors and until their
successors are elected, except in case of resignation, death, removal or
retirement. The Board of Directors may remove any Officer at any time, with or
without cause, by a majority vote of the members of the Board then in office.
Any vacancy in any office may be filled by the Board of Directors.
SECTION 3. CHAIRMAN OF THE BOARD
The Chairman of the Board, if any, shall preside at all meetings of the
Board of Directors, and shall have such authority and perform such duties as the
Board may determine.
SECTION 4. PRESIDENT
The President shall preside at all meetings of the Board of Directors
in the absence of the Chairman of the Board unless otherwise determined by the
Board. The President shall have such authority and perform such duties as the
Board of Directors may determine.
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SECTION 5. CHIEF EXECUTIVE OFFICER
The Board of Directors shall determine from time to time which Officer
shall be designated as the Chief Executive Officer of the Company. Subject to
directions of the Board of Directors, he shall have general executive
supervision of the property, business and affairs of the Company, and shall see
that all orders and recommendations of the Board are carried into effect.
SECTION 6. VICE PRESIDENTS
The Vice President or Vice Presidents shall have such authority and
shall perform such duties as may be delegated to them by the Chief Executive
Officer or as may be determined by the Board of Directors. In case of the
disability or absence of the President, or in case of a vacancy existing in the
office of the President, a Vice President shall be designated by the Board of
Directors to perform all duties and possess all of the authority of the
President until such time as a new President is elected by the Board.
SECTION 7. SECRETARY
The Secretary shall keep the minutes of the meetings of Shareholders
and of the Board of Directors and the Executive Committee (unless otherwise
directed by the Executive Committee). He shall keep such books as may be
required by the Board of Directors, give such notice of Shareholders' meetings
and Board meetings as may be required by law or these Regulations, and perform
such other duties as the Shareholders or the Board may determine.
SECTION 8. TREASURER
The powers and duties of the Treasurer shall be to keep safe all moneys
of the Company which may be deposited from time to time with the Treasurer, and
to pay out said moneys in such manner as may be prescribed by the Board of
Directors, and generally to do and perform all such other duties as pertain to
his office and as may be determined by the Board.
SECTION 9. CONTROLLER
The Controller shall be the chief accounting officer of the Company. He
shall prepare such accounting statistics, records and reports as may be
prescribed by the Board of Directors, and generally do and perform all such
other duties as determined by the Board.
SECTION 10. ASSISTANT OFFICERS
The Board of Directors may elect one or more Assistant Secretaries,
Assistant Treasurers and/or Assistant Controllers, who shall have such powers
and perform such duties as directed by their respective principal Officers or as
the Board may determine.
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SECTION 11. OTHER OFFICERS
All other Officers shall have such powers and perform such duties as
the Board of Directors may determine.
ARTICLE V
CERTIFICATES FOR SHARES
SECTION 1. CERTIFICATES FOR SHARES
Each holder of shares is entitled to one or more certificates for
shares of the Company in such form not inconsistent with law and the Amended and
Restated Articles of Incorporation as shall be approved by the Board of
Directors. Each such certificate shall be signed by the Chairman of the Board or
the President, and by the Secretary or Assistant Secretary or the Treasurer or
Assistant Treasurer of the Company, which certificate shall certify the number
and class of shares held by each Shareholder in the Company, but no certificates
for shares shall be executed or delivered until such shares are fully paid.
When such a certificate is countersigned by an incorporated transfer
agent or registrar, the signature or any of said Officers of the Company may be
a facsimile, engraved, stamped or printed.
Although any Officer of the Company, whose manual or facsimile,
engraved, stamped or printed signature is affixed to such a certificate ceases
to be such Officer before the certificate is delivered, such certificate shall
be effective in all respects when delivered.
SECTION 2. TRANSFER OF SHARES
Shares of the Company shall be transferable upon the books of the
Company by the holders thereof in person or by a duly authorized attorney upon
surrender and cancellation of certificates for a like number of shares of the
same class of shares, with duly executed assignment and power of transfer
endorsed thereon or attached thereto, and with such proof of authenticity of the
signatures to such assignment and power of transfer as the Company or its agents
may reasonably require.
SECTION 3. LOST, STOLEN OR DESTROYED CERTIFICATES
The Company may issue a new certificate for shares in place of any
certificate or certificates heretofore issued by the Company alleged to have
been lost, stolen or destroyed and upon the making of an affidavit of that fact
by the person claiming the certificate of stock to have been lost, stolen or
destroyed.
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When authorizing such issues of a new certificate or certificates, the
Board of Directors may, in its discretion, and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representatives, to attest the same in
such manner as it shall require and to give the Company a bond in such sum and
containing such terms as the Board may direct as indemnity against any claim
that may be made against the Company with respect to the certificate or
certificates alleged to have been lost, stolen or destroyed.
SECTION 4. TRANSFER AGENTS AND REGISTRARS
The Board of Directors may appoint or revoke the appointment of
transfer agents and registrars and may require all certificates for shares to
bear the signature of such transfer agents and registrars or any of them.
The Board of Directors shall have authority to make all such rules and
regulations as it may deem expedient concerning the issuance, transfer and
registration of certificates for shares of the Company.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
The Company shall indemnify any director or officer and any former
director or officer of the Company and any such director or officer who is or
has served at the request of the Company as a director, officer or trustee of
another corporation, partnership, joint venture, trust or other enterprise (and
his heirs, executors and administrators) against expenses, including attorney's
fees, judgments, fines and amounts paid in settlement, actually and reasonably
incurred by him by reason of the fact that he is or was such director, officer
or trustee in connection with any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative to the
full extent permitted by applicable law. The indemnification provided for herein
shall not be deemed to restrict the right of the Company (i) to indemnify
employees, agents and others to the extent not prohibited by such law, (ii) to
purchase and maintain insurance or furnish similar protection on behalf of or
for any person who is or was a director, officer, employee or agent of the
Company, or any person who is or was serving at the request of the Company as a
director, officer, trustee, employee or agent of another corporation, joint
venture, partnership, trust or other enterprise against any liability asserted
against him or incurred by him in any such capacity or arising out of his status
as such, and (iii) to enter into agreements with persons of the class identified
in clause (ii) above indemnifying them against any and all liabilities (or such
lesser indemnification as may be provided in such agreements) asserted against
or incurred by them in such capacities.
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ARTICLE VII
FISCAL YEAR
The fiscal year of the Company shall be fixed by resolution of the
Board of Directors and shall remain as fixed until changed by resolution of the
Board from time to time.
ARTICLE VIII
CANCELLATION OF FORMER CODES OF REGULATIONS
This Amended and Restated Code of Regulations supersedes all Code of
Regulations and amendments theretofore adopted.
ARTICLE IX
EMERGENCY REGULATIONS
The Directors may adopt, either before or during an emergency, as that
term is defined by the General Corporation Law of Ohio, any emergency
regulations permitted by the General Corporation Law of Ohio which shall be
operative only during such an emergency. In the event the Board of Directors
does not adopt any such emergency regulations, the special rules provided in the
General Corporation Law of Ohio shall be applicable during an emergency as
therein defined.
ARTICLE X
AMENDMENTS
The Company may amend, change or add to this Amended and Restated Code
of Regulations for any lawful purpose by the vote or written consent of the
holders of record of shares entitling them to exercise a majority of the voting
power of the Company in respect of any such amendment, change or addition;
provided, however, that if any such amendment, change or addition is adopted by
written consent without a meeting of the Shareholders, the Secretary shall enter
any such amendment, change or addition in the records of the Company and mail a
copy thereof to each Shareholder of record who would have been entitled to vote
thereon and did not participate in the adoption thereof.
ARTICLE XI
OHIO CONTROL SHARE ACT
The provisions of Section 1701.831 of the Ohio Revised Code, as
amended, requiring shareholder approval of control share acquisitions, as
defined in Section 1701.01(Z) of such Code, as amended, shall not be applicable
to the Company.
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