1
Exhibit 3.2
REGULATIONS
OF
LEXREIT PROPERTIES, INC.
ARTICLE I
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MEETINGS OF SHAREHOLDERS
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Section 1. PLACE OF MEETING. Meetings of the shareholders may be held
either within or without the State of Ohio.
Section 2. ANNUAL MEETING. The annual meeting of the shareholders,
whereat the shareholders shall elect a Board of Directors, and transact such
other business as may properly be brought before the meeting, shall be held on
such date and time as shall be determined by resolution of the Board of
Directors.
Section 3. SPECIAL MEETINGS. Special meetings of the shareholders, for
any purpose or purposes, other than those regulated by statute or by the
Articles of Incorporation, may be called at any time by the Chairman of the
Board, President, or a majority of the Board of Directors, with or without a
meeting, or the holders of not less than one-half of all the shares issued and
outstanding and entitled to vote at the particular meeting, upon written request
delivered to the President or Secretary of the Corporation. Such request shall
state the purpose or purposes of the proposed meeting. Upon receipt of any such
request, it shall be the duty of the President or Secretary to call a special
meeting of the shareholders to be held at such time, not less than seven (7) nor
more than sixty (60) days thereafter, as the President or Secretary may fix. If
the President or Secretary shall neglect to issue such call, the person or
persons making the request may issue the call.
Section 4. NOTICE OF MEETINGS. Written notice of the annual or any
special meeting of shareholders, stating the place, the date and hour of the
meeting and, in the case of special meetings, the general nature of the business
to be transacted thereat, shall be served upon or mailed, postage prepaid, not
less than seven (7) nor more than sixty (60) days before such meeting, unless a
greater period of notice is required by statute in a particular case, to each
shareholder entitled to notice thereof being of record on the date fixed as a
record date, or, if no record date be fixed, then of record ten (10) days next
preceding the date of the meeting, at such address as appears on the transfer
books of the Corporation.
Section 5. NOTICE TO JOINT SHAREHOLDERS. All notices with respect to
any shares to which persons are jointly entitled may be given to that one of
such persons who is named first upon the transfer books of the Corporation and
notice so given shall be sufficient notice to all the holders of such shares.
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Section 6. BUSINESS AT SPECIAL MEETINGS. No business other than that
specified in the call therefor shall be considered at any special meeting.
Section 7. QUORUM. The holders of a majority of the issued and
outstanding shares entitled to vote, present in person or represented by proxy,
shall be requisite to constitute a quorum at all meetings of the shareholders,
except as otherwise provided by statute or by the Articles of Incorporation or
by these Regulations. If, however, any meeting of shareholders cannot be
organized because a quorum is not present, the holders of a majority of the
stock entitled to vote thereat, present in person or by proxy, shall have power,
except as otherwise provided by statute, to adjourn the meeting to such time and
place as they may determine. At any adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted if the meeting had been as originally called.
Section 8. REQUISITE VOTE. When a quorum is present or represented at
any meeting, the vote of the holders of a majority of the stock having voting
powers, present in person or represented by proxy, shall decide any question
brought before such meeting, unless the question is one upon which, by express
provision of the statutes or of the Articles of Incorporation or of these
Regulations, a different vote is required, in which case such express provisions
shall govern and control the decision of such question.
Section 9. VOTING RIGHTS. Except to the extent that the voting rights
of the shares of any class are increased, limited, or denied by the express
terms of such shares, each outstanding share regardless of class shall entitle
the holder thereof to one vote on each matter properly submitted to the
shareholders for their vote, consent, waiver, release, or other action. The
candidates receiving the highest number of votes, up to the number of directors
to be elected, shall be elected. Upon demand made by a shareholder at any
election of directors before the voting begins, the election shall be by ballot.
Section 10. PROXIES. Any shareholder entitled to vote at a
shareholders' meeting may be represented by proxy or proxies appointed by an
instrument in writing signed by such shareholder, or by his duly authorized
attorney, and submitted to the Secretary at or before such meeting.
Section 11. LIST OF SHAREHOLDERS. The officer or agent having charge of
the transfer books for shares of the Corporation shall make, at least five (5)
days before each meeting of shareholders, a complete list of the shareholders
entitled to vote at the meeting (being shareholders of record on the date fixed
as a record date, or if no record date be fixed, then of record ten (10) days
next preceding the date of the meeting), arranged in alphabetical order, with
the address of and the number of shares held by each, which list shall be kept
on file at the registered office of the Corporation and shall be subject to
inspection by any shareholder at any time during usual business hours. Such list
shall also be produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any shareholder during the whole time of
the meeting.
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Section 12. ORGANIZATION. All meetings of the shareholders after
organization shall be presided over by the Chairman of the Board or the
President. In the absence of the Chairman of the Board and the President, any
Vice-President shall preside and shall have all the powers herein conferred upon
the President when acting as presiding officer of the meeting. The Secretary of
the Corporation shall act as secretary of all meetings of the shareholders but,
in the absence of the Secretary at any meeting of the shareholders, the
presiding officer may appoint any person to act as secretary of the meeting.
Section 13. INSPECTORS OF ELECTION. In advance of any meeting of
shareholders, the Board of Directors may appoint inspectors of election, who
need not be shareholders, to act at such meeting or any adjournment thereof. If
inspectors of election are not so appointed, the Chairman of any such meeting
may and, on the request of any shareholder or his proxy, shall make such
appointment at the meeting. The inspectors of election shall do all such acts as
may be proper to conduct the election or vote with fairness to all shareholders,
and shall make a written report of any matter determined by them and execute a
certificate of any fact found by them, if requested by the Chairman of the
meeting or any shareholder or his proxy. If there be three or more inspectors of
election, the decision, act or certificate of a majority shall be effective in
all respects as the decision, act or certificate of all.
Section 14. INFORMAL ACTION BY SHAREHOLDERS. Any action required to be
taken at a meeting of the shareholders may be taken without a meeting, if a
consent in writing setting forth the action so taken is signed by all of the
shareholders who would be entitled to vote at a meeting for such purpose, and
filed with the Secretary of the Corporation.
ARTICLE II
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DIRECTORS
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Section 1. NUMBER, QUALIFICATIONS AND TERM. The number of directors
which shall constitute the whole Board of Directors (sometimes hereinafter
referred to as the "Board") shall not be less than three nor more than
twenty-one (except that, where all shares of the Corporation 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), as may be fixed from time to time by
resolution of the Board of Directors. No reduction in the number of directors
shall have the effect of removing any director from the Board prior to the
expiration of his term of office. Directors shall be natural persons of full age
and need not be shareholders in the Corporation. If the Corporation's Board of
Directors is not classified into classes as described in Section 2 below, each
director shall be elected to serve for a term of not more than one year but he
shall continue to serve until his successor is elected and qualified.
Section 2. CLASSES. If the Corporation's Board of Directors consists of
six (6) or more members, by resolution of the Board of Directors, directors may
be classified with respect to the time for which they severally hold office,
each class consisting of, as nearly as may be possible,
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one-third of the total number of directors constituting the entire Board of
Directors, but in no event less than three (3) members to serve no longer than
three (3) years. The Board of Directors may be classified into three (3)
classes, designated Class I, Class II, and Class III. If the Board of Directors
is classified into classes, there shall be at least two (2) classes, Class I
and Class II, and no more than three (3) classes, Class I, Class II and Class
III. The directors first appointed to Class I will hold office for a term of
one (1) year but each shall continue to serve until his successor is elected
and qualified at the next annual meeting of the shareholders. The directors
first appointed to Class II will hold office for a term of two (2) years but
each shall continue to serve until his successor is elected and qualified at
the annual meeting of shareholders. The directors first appointed to Class III,
if any, will hold office for a term of three (3) years but each shall continue
to serve until his successor is elected and qualified at the annual meeting of
shareholders. At each succeeding annual meeting of the shareholders of the
Corporation, the members of the class of Directors whose term expires at that
meeting will be elected to hold office for a term expiring at the annual
meeting of shareholders held in the third year following the year of their
election.
If the number of directors is changed, any increase or decrease shall
be apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as possible, and any additional director of any class
elected to fill a vacancy resulting from an increase in such class shall hold
office for a term that shall coincide with the remaining term of that class, but
in no case will a decrease in the number of directors shorten the term of any
incumbent director. A director shall hold office until the annual meeting for
the year in which his term expires and until his successor is elected and
qualified.
Section 3. VACANCIES. A resignation from the Board of Directors shall
be deemed to take effect upon its receipt by the Secretary, unless some other
time is specified therein. A vacancy in the Board, including a vacancy created
by an increase in the number of directors, may be filled by a majority vote of
the remaining directors, though less than a majority of the whole Board, until
an election of a new Board by the shareholders is had. Any vacancy on the Board
of Directors that results from an increase in the number of directors, may be
filled by a majority of the directors, then in office, even if less than a
quorum, or by a sole remaining director, and any other vacancy occurring in the
Board of Directors may be filled by a majority of the directors then in office,
even if less than a quorum, or by a sole remaining director. Any director
elected to fill a vacancy not resulting from an increase in the number of
directors shall have the same remaining term as that of his predecessor. Any
director, or the entire Board of Directors, may be removed from office at any
time, but only for cause and only by the affirmative vote of the holders of
two-thirds of the shares entitled to vote thereon.
Section 4. DUTIES OF DIRECTORS. The business and affairs of the
Corporation shall be managed by its Board of Directors which may exercise all
such powers of the Corporation and do all such lawful acts and things as are not
by statute or by the Articles of Incorporation or by these Regulations directed
or required to be exercised and done by the shareholders.
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Section 5. FIRST MEETING OF NEW BOARD. The first meeting of each newly
elected Board may be held at such time and place as shall be fixed by the
shareholders at the meeting at which such directors were elected, and no notice
shall be necessary to the newly elected directors in order legally to constitute
the meeting, provided a majority of the whole Board shall be present; or it may
convene at such time and place as may be fixed by the consent in writing of all
the directors.
Section 6. MEETINGS OF THE BOARD. Meetings of the Board may be called
by the Chairman of the Board or the President on at least two (2) days' notice
to each director, either personally or by mail or by telegram. Meetings of the
Board also shall be called by the President or Secretary in like manner and on
like notice on the written request of any two directors if there are three or
more directors holding a position on the Board or, on the written request of any
single director if there are less than three (3) directors holding a position on
the Board. Special meetings may be held at such times and places as may be
designated in the notices of their call, or they may be held at any time or
place, without notice, by the presence of all directors.
Section 7. NOTICE OF MEETINGS. Written notice of each meeting, stating
the time and place, shall be given to each director at least two (2) days before
such meeting, either personally or by mail or telegram.
Section 8. RATIFICATION; ACTION WITHOUT MEETING. The directors, acting
at a meeting at which a quorum is present, may ratify any act of any officer or
officers of the Corporation. If all the directors shall severally or
collectively consent in writing to any action to be taken by the Board, such
action shall be as valid a corporate action as though it had been authorized at
a meeting of the Board.
Section 9. QUORUM. At all meetings of the Board of Directors, a
majority of the directors in office shall be necessary to constitute a quorum
for the transaction of business, and the acts of a majority of the directors
present at a meeting at which a quorum is present shall be the acts of the
Board. Directors who have a personal or financial interest in a contract or
transaction which is before the Board, or who are common directors of the
Corporation and another corporation with respect to which a contract or
transaction is before the Board, may be counted in determining the presence of a
quorum at a meeting of the directors, or a committee thereof, which authorizes
the contract or transaction. If a quorum shall not be present at any meeting of
directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement of the meeting, until a quorum
shall be present.
Section 10. EXECUTIVE COMMITTEE. The Board of Directors may, by
resolution adopted by a majority of the whole Board, designate three or more of
its number to constitute an Executive Committee which, to the extent provided in
such resolution, shall have and exercise the authority of the Board in the
management of the business of the Corporation. Vacancies in the membership of
the Executive Committee shall be filled by the Board of Directors. The Executive
Committee shall keep regular minutes of its proceedings and report the same to
the Board when required.
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Section 11. OTHER COMMITTEES. The Board of Directors may, by resolution
adopted by a majority of the whole Board, designate three or more of its number
to constitute any other committee which shall have and exercise the authority
granted to it by the Board in the management of the business of the corporation.
Vacancies in the membership of a committee shall be filled by the Board of
Directors. Each committee shall keep regular minutes of its proceedings and
report the same to the Board when required.
Section 12. COMPENSATION OF DIRECTORS. Directors may receive a fee for
their services, plus a fixed sum for expenses may be allowed for attendance at
each meeting of the Board or at meetings of any committee of the Board.
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Section 13. TELEPHONIC MEETINGS. To the extent permitted by law,
members of the Board of Directors or any committee thereof may participate in a
meeting of such body through the use of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
Section shall constitute presence in person at such meeting.
ARTICLE III
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OFFICERS
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Section 1. DESIGNATIONS. The Board of Directors shall elect a
President, Secretary and Treasurer and, in its discretion, a Chairman of the
Board of Directors and/or such number of Vice-Presidents as the Board may from
time to time determine. The Board of Directors may from time to time create such
offices and appoint such other officers, subordinate officers and assistant
officers as it may determine. The Chairman of the Board of Directors (if any)
shall be, but the officers need not be, chosen from among the members of the
Board of Directors. Any two or more of such offices may be held by the same
person, but no officer shall execute, acknowledge or verify any instrument in
more than one capacity.
Section 2. TERM AND REMOVAL. The officers of the Corporation shall hold
office until their successors are chosen and have qualified, or until any such
officer has resigned or is removed. Any officer elected or appointed by the
Board of Directors may be removed by the Board of Directors with or without
cause whenever in its judgment the best interests of the Corporation will be
served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed. If the office of any officer becomes
vacant for any reason, the vacancy may be filled by the Board of Directors.
Section 3. CHAIRMAN OF THE BOARD. The Chairman of the Board, if there
be one, shall be the Chief Executive Officer of the Corporation, unless the
Board has designated the President as Chief Executive Officer, and shall preside
at all meetings of the Board of Directors. He shall see that all orders and
resolutions of the Board are carried into effect.
Section 4. PRESIDENT. The President shall preside at all meetings of
the shareholders and shall have general and active management of the business of
the Corporation, unless the Board has delegated those duties to the Chairman of
the Board. If the Corporation has no Chairman of the Board, the President shall
have all of the duties and responsibilities previously enumerated for the
Chairman of the Board.
Section 5. VICE-PRESIDENTS. The Vice-President or, if there are more
than one, the Vice-President who has served as such for the longest period of
time, shall, in the absence or disability of the President, perform the duties
and exercise the powers of the President. In addition, each Vice-President
shall perform such other duties as shall from time to time be imposed upon him
by the Board of Directors, Chairman of the Board or President.
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Section 6. SECRETARY. The Secretary shall give, or cause to be given,
notice of all meetings of the shareholders and of special meetings of the Board
of Directors, and shall perform such other duties as may be prescribed by the
Board of Directors or President, under whose supervision he shall act. He shall
keep in safe custody the corporate seal of the Corporation, if any, and when
authorized by the Board, affix the same to any instrument requiring it, and when
so affixed it shall be attested by his signature or by the signature of the
Treasurer or an Assistant Secretary. The Secretary shall not, without the
express written authorization of the Board of Directors, have any responsibility
for, or any duty or authority with respect to, the withholding or payment of any
federal, state or local taxes of the Corporation or the preparation or filing of
any tax returns, but shall perform such other duties as shall from time to time
be imposed upon him by the Board of Directors, Chairman of the Board, or
President.
Section 7. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation, and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as shall be designated by the Board. The
Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board, taking proper vouchers for such disbursements, and shall render to the
President and directors an account of all his transactions as Treasurer and of
the financial condition of the Corporation. The Treasurer shall perform such
other duties as shall from time to time be imposed upon him by the Board of
Directors, Chairman of the Board or President.
Section 8. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. In the
absence or disability of the Secretary or Treasurer, the Assistant Secretaries
or Assistant Treasurers, as the case may be, in the order designated by the
Board, shall perform the duties of the Secretary or Treasurer, as the case may
be, and shall have the full powers thereof. In no case shall any Assistant
Secretary, without the express authorization and direction of the Board of
Directors, have any responsibility for, or any duty or authority with respect
to, the withholding or payment of any federal, state or local taxes of the
Corporation, or the preparation or filing of any tax return.
ARTICLE IV
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INDEMNIFICATION AND LIMITATION OF LIABILITY
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Section 1. In case any person 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 is or was a director, officer, employee, or agent of the Corporation, or is
or was serving at the request of the Corporation as a director, trustee,
officer, employee, or agent of another corporation, domestic or foreign,
nonprofit or for profit, partnership, joint venture, trust, or other enterprise,
the Corporation shall indemnify such person against expenses, including
attorneys' fees, judgments, decrees, fines, penalties, and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding, if he
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acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and with respect to any matter
the subject of a criminal action, suit, or proceeding, he had no reasonable
cause to believe that his conduct was unlawful. 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, itself, create a presumption
that the person did not act in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation and with
respect to any matter the subject of a criminal action, suit or proceeding, that
he had reasonable cause to believe that his conduct was unlawful.
Section 2. In case any person 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 is or was a director, officer, employee, or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, trustee, officer, employee, or agent of another corporation, domestic
or foreign, nonprofit or for profit, partnership, joint venture, trust or other
enterprise, the Corporation shall indemnify such person against expenses,
including attorney's fees, actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, except that no indemnifications shall be made in
respect of any of the following: (i) any claim, issue, or matter as to which
such person is adjudged to be liable for misconduct in the performance of his
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, determines 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; or (ii) any action or suit in which the only liability
asserted against a director is pursuant to Section 1701.95 of the Ohio Revised
Code.
Section 3. To the extent that a director, trustee, officer, employee,
or agent has been successful on the merits or otherwise in defense of any
action, suit, or proceeding referred to in Sections 1 and 2 of this Article IV,
or in defense of any claim, issue, or matter therein, the Corporation shall
indemnify him against expenses, including attorney's fees, actually and
reasonably incurred by him in connection with the action, suit or proceeding.
Section 4. Any indemnification under Sections 1 and 2 of this Article
IV, 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, trustee, officer, employee, or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in Sections 1
and 2 of this Article IV. Such determination shall be made as follows: (i) by a
majority vote of a quorum consisting of directors of the Corporation who were
not and are not parties to or threatened with any such action, suit, or
proceeding, (ii) if the quorum described in clause (i) of this Section 4 is not
obtainable or if a majority vote of a quorum of disinterested directors so
directs, in a written opinion by independent legal counsel other than an
attorney, or a firm having associated with it any attorney, who has been
retained by or who has performed services for the Corporation, or any person to
be indemnified within the past five (5) years, (iii) by the
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shareholders, or (iv) by the court of common pleas or the court in which such
action, suit, or proceeding was brought. Any determination made by the
disinterested directors under clause (i) of this Section 4 or by independent
legal counsel under clause (ii) of this Section 4 shall be promptly communicated
to the person who threatened or brought the action or suit, by or in the right
of the Corporation referred to in Section 2 of this Article IV, and within ten
(10) days after the receipt of such notification, such person shall have the
right to petition the court of common pleas or the court in which such action or
suit was brought to review the reasonableness of such determination.
Section 5. (a) Unless the only liability asserted against a director in
an action, suit, or proceeding referred to in Sections 1 and 2 of this Article
IV is pursuant to Section 1701.95 of the Ohio Revised Code, expenses, including
attorneys' fees, incurred by a director in defending the action, suit, or
proceeding, shall be paid by the Corporation as they are incurred, in advance of
the final disposition of the action, suit, or proceeding, upon receipt of an
undertaking by or on behalf of the director in which he agrees to do both of the
following: (A) repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or failure to act
involved an act or omission undertaken with deliberate intent to cause injury to
the Corporation or undertaken with reckless disregard for the best interests of
the Corporation; and (B) reasonably cooperate with the Corporation concerning
the action, suit or proceeding.
(b) Expenses, including attorneys' fees, incurred by a
director, trustee, officer, employee or agent in defending any
action, suit or proceeding referred to in Sections 1 and 2 of this
Article IV may be paid by the Corporation as they are incurred in
advance of the final disposition of the action, suit or proceeding as
authorized by the directors in the specific case, upon the receipt of
an undertaking by or on behalf of the director, trustee, officer,
employee or agent to repay such amount, if it ultimately is determined
that he is not entitled to be indemnified by the Corporation.
Section 6. Expenses, including attorneys' fees, amounts paid in
settlement, and (except in the case of an action by or in the right of the
Corporation) judgments, decrees, fines and penalties, incurred in connection
with any potential, threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative by any person by reason
of the fact that he is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, trustee, officer, employee, or agent of another corporation, domestic
or foreign, nonprofit or profit, partnership, joint venture, trust or other
enterprise, may be paid or reimbursed by the Corporation, as authorized by the
Board of Directors upon a determination that such payment or reimbursement is in
the best interests of the Corporation; provided, however, that, unless all
directors are interested, the interested directors shall not participate and a
quorum shall be one-third of the disinterested directors.
Section 7. The indemnification authorized by this Article IV shall not
be exclusive of, and shall be in addition to, any other rights granted to those
seeking indemnification under the Articles of Incorporation or these Regulations
or any agreement, vote of shareholders or disinterested directors, or otherwise,
both as to action in his official capacity and as to action in
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another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, trustee, officer, employee, or agent and shall
inure to the benefit of the heirs, executors, and administrators of such person.
Section 8. The Corporation may purchase and maintain insurance or
furnish similar protection, including, but not limited to, trust funds, letters
of credit or self-insurance, on behalf of or for any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, trustee, officer, employee, or
agent of another corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have indemnified him
against such liability under this Article IV. Insurance may be purchased from or
maintained with a person in which the Corporation has a financial interest.
Section 9. The authority of the Corporation to indemnify persons
pursuant to Sections 1 and 2 of this Article IV does not limit the payment of
expenses as they are incurred, indemnification, insurance, or other protection
that may be provided pursuant to Sections 5, 6, 7 and 8 of this Article IV.
Sections 1 and 2 of this Article IV do not create any obligation to repay or
return payments made by the Corporation pursuant to Sections 5, 6, 7 and 8 of
this Article IV.
Section 10. (a) No person shall be found to have violated his duties to
the Corporation as a director of the Corporation in any action brought against
such director (including actions involving or affecting any of the following:
(i) a change or potential change in control of the Corporation; (ii) a
termination or potential termination of his service to the Corporation as a
director; or (iii) his service in any other position or relationship with the
Corporation), unless it is proved by clear and convincing evidence that the
director has not acted: (i) in good faith; (ii) in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation; or
(iii) with the care that an ordinarily prudent person in a like position would
use under similar circumstances. Notwithstanding the foregoing, nothing
contained in this paragraph (a) limits the relief available under Section
1701.60 of the Ohio Revised Code.
(b) In performing his duties, a director shall be entitled to
rely on information, opinions, reports, or statements, including
financial statements and other financial data, that are prepared or
presented by: (i) one or more directors, officers, or employees of the
Corporation whom the director reasonably believes are reliable and
competent in the matters prepared or presented; (ii) legal counsel,
public accountants, or other persons as to matters that the director
reasonably believes are within the person's professional or expert
competence; or (iii) a committee of the directors upon which he does
not serve, duly established in accordance with the provisions of these
Regulations, as to matters within its designated authority, which
committee the director reasonably believes to merit confidence.
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(c) A director in determining what he reasonably believes to
be in the best interests of the Corporation shall consider the
interests of the Corporation's shareholders and, in his discretion, may
consider (i) the interests of the Corporation's employees, suppliers,
creditors and customers; (ii) the economy of the state and nation;
(iii) community and societal considerations; and (iv) the long-term as
well as short-term interests of the Corporation and its shareholders,
including the possibility that these interests may be best served by
the continued independence of the Corporation.
(d) A director shall be liable in damages for any action he
takes or fails to take as a director only if it is proved by clear and
convincing evidence in a court of competent jurisdiction that his
action or failure to act involved an act or omission undertaken with
deliberate intent to cause injury to the Corporation or undertaken with
reckless disregard for the best interests of the Corporation.
Notwithstanding the foregoing, nothing contained in this paragraph (d)
affects the liability of directors under Section 1701.95 of the Ohio
Revised Code or limits relief available under Section 1701.60 of the
Ohio Revised Code.
Section 11. As used in Article IV, references to the Corporation
include all constituent corporations in a consolidation or merger and the new or
surviving corporation, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at the
request of such a constituent corporation as a director, trustee, officer,
employee or agent of another corporation, domestic or foreign, nonprofit or for
profit, partnership, joint venture, trust, or other enterprise, shall stand in
the same position under this Article IV with respect to the new or surviving
corporation as he would if he had served the new or surviving corporation in the
same capacity. As used in Article IV, words of the masculine gender shall
include the feminine gender.
ARTICLE V
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CERTIFICATES FOR SHARES
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Section 1. ISSUANCE. The certificates for shares of the Corporation
shall be numbered and registered in a share register as they are issued. They
shall exhibit the name of the registered holder and the number and class of
shares, and the series, if any, represented thereby and the par value of each
share or a statement that such shares are without par value, as the case may be.
The designations, preferences, voting power, qualifications, privileges,
limitations, and any special rights of the shares of each class to be issued
may, but need not, be stated in full or in the form of a summary, either upon
the face or back of the certificate. Every share certificate shall be signed by
the Chairman of the Board, President or Vice-President and the Secretary or an
Assistant Secretary, or the Treasurer or an Assistant Treasurer, but where such
certificate is signed by a registrar or transfer agent, the signature of any
corporate officer upon such certificate may be a facsimile, engraved or printed.
In case any officer who has signed or whose facsimile signature has been placed
upon any share certificate shall have ceased to be such officer because
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of death, resignation or otherwise before the certificate is issued, it may be
issued by the Corporation with the same effect as if the officer had not ceased
to be such prior to its issuance.
Section 2. TRANSFERS OF SHARES. The Board of Directors may from time to
time appoint such transfer agents or registrars of shares as it may deem
advisable, and may define their powers and duties. Upon surrender to the
Corporation, or its transfer agent, of a share certificate duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate or certificates shall be issued in accordance with
the directions therein contained and the old certificate shall be cancelled and
the transaction shall be recorded upon the books of the Corporation.
Section 3. FIXING RECORD DATE. The Board of Directors may fix a time,
not more than sixty (60) days nor less than ten (10) days prior to the date of
any meeting of shareholders, or the date fixed for the payment of any dividend
or distribution, or the date for the allotment of rights, or the date when any
change or conversion or exchange of shares will be made or go into effect, as a
record date for the determination of the shareholders entitled to notice of and
to vote at any such meeting, or entitled to receive payment of any such dividend
or distribution, or to receive any such allotment of rights, or to exercise the
rights in respect to any such change, conversion or exchange of shares. In such
case, only such shareholders as shall be shareholders of record on the date so
fixed shall be entitled to notice of and to vote at such meeting, or to receive
payment of such dividend or distribution, or to receive such allotment of
rights, or to exercise such rights, as the case may be, notwithstanding any
transfer of any shares on the books of the Corporation after any record date so
fixed. The Board of Directors may close the books of the Corporation against
transfers of shares during the whole or any part of the period following the
record date, and in such case written or printed notice thereof shall be mailed
at least ten (10) days before the closing thereof to each shareholder of record
at the address appearing on the records of the Corporation or supplied by him to
the Corporation for the purpose of notice.
Section 4. REGISTERED SHAREHOLDERS. The Corporation shall be entitled
to treat the holder of record of any share or shares as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share on the part of any other person, and shall
not be liable for any registration or transfer of shares which are registered or
to be registered in the name of a fiduciary, or the nominee of a fiduciary,
unless made with actual knowledge that a fiduciary or nominee of a fiduciary is
committing a breach of trust in requesting such registration or transfer, or
with knowledge of such facts that its participation therein amounts to bad
faith.
Section 5. LOST CERTIFICATE. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation and alleged to have been lost
or destroyed, upon receiving an affidavit of that fact made by the person
claiming that the share certificate has been lost or destroyed. When authorizing
such issuance of a new certificate or certificates, the Board may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it
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shall require and/or give the Corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the Corporation with
respect to the certificate or certificates alleged to have been lost or
destroyed.
ARTICLE VI
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DIVIDENDS
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Dividends upon the capital stock of the Corporation, subject to the
provisions of the Articles of Incorporation relating thereto, if any, may be
declared by the Board of Directors at any regular or special meeting pursuant to
law. Dividends may be paid in cash, in property, or in shares of the
Corporation.
ARTICLE VII
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FINANCIAL REPORT TO THE SHAREHOLDERS
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Section 1. REQUIREMENTS. At the annual meeting of shareholders, or the
meeting held in lieu thereof, the Corporation shall lay before the shareholders
a financial statement consisting of:
(a) A balance sheet containing a summary of the assets,
liabilities, stated capital, if any, and surplus of the Corporation as
of the end of the Corporation's most recent fiscal year; and
(b) A statement of profit and loss and surplus, including a
summary of profits, dividends or distributions paid, and other changes
in the surplus accounts of the Corporation for the period commencing
with the date marking the end of the period for which the last
preceding statement of profit and loss required under this Section was
made and ending with the date of said balance sheet, or in the case of
the first statement of profit and loss, from the incorporation of the
Corporation to the date of said balance sheet.
Section 2. CERTIFICATE. The financial statement shall have appended
thereto an opinion signed by the President or a Vice-President or the Treasurer
or an Assistant Treasurer of the Corporation, or by a public accountant or firm
of public accountants, to the effect that the financial statement fairly
presents the position of the Corporation and the results of its operations in
conformity with generally accepted accounting principles applied on a consistent
basis with that of the preceding period or to the effect that the financial
statements have been prepared on the basis of accounting practices and
principles that are reasonable under the circumstances.
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Section 3. COPIES. Upon the written request of any shareholder made
within sixty (60) days after notice of any such meeting has been given, the
Corporation, not later than the fifth (5th) day after receiving such request or
the fifth (5th) day before such meeting, whichever is the later date, shall mail
to such shareholder a copy of such financial statement.
ARTICLE VIII
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MISCELLANEOUS
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Section 1. CHECKS AND NOTES. All checks or demands for money and notes
of the Corporation shall be signed by such officer or officers or agent or
agents as the Board of Directors may from time to time designate. The signature
of any officer or agent upon any of the foregoing instruments may be a facsimile
when authorized by the Board.
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Section 2. SEAL. The Board of Directors may, but need not, provide a
suitable seal, containing the name of the Corporation, to be kept by the
Secretary. If deemed advisable by the Board of Directors, duplicate seals may be
kept and used by other officers of the Corporation, or by any transfer agent of
its shares.
Section 3. NOTICES. Whenever, under the provisions of the statutes or
of the Articles of Incorporation, or of these Regulations, notice is required to
be given to any person, it may be given to such person either personally or by
sending a copy thereof through the mail or by telegram or similar method,
charges prepaid, to his address appearing on the books of the Corporation or
supplied by him to the Corporation for the purpose of notice. If the notice is
sent by mail or by telegram, it shall be deemed to have been given to the person
entitled thereto when deposited in the United States mail or with a telegraph
office for transmission to such person.
Section 4. WAIVER OF NOTICE. Any notice required to be given to any
person may be waived in writing signed by the person entitled to such notice
whether before or after the holding of the meeting, the notice of which is
thereby waived. Attendance of any person entitled to notice, either in person or
by proxy, at any meeting shall constitute a waiver of notice of such meeting by
such person except where such person attends a meeting for the express purpose
of objecting to the transaction of any business because the meeting was not
lawfully called or convened.
Section 5. EMERGENCY REGULATIONS. The directors may, without further
shareholder approval, adopt such emergency regulations as they may deem
necessary or proper, to be operative only during any emergency for corporations,
when and as proclaimed by the Governor of Ohio or any other person lawfully
exercising the power and discharging the duties of the office of governor.
Section 6. MANNER OF AMENDMENT. These Regulations may be altered,
amended or repealed by the affirmative vote of two-thirds of the shares entitled
to vote thereon at any meeting duly convened after notice to the shareholders of
that purpose; or without a meeting by the written assent of the holders of
record of shares of the Corporation entitling them to exercise two-thirds of the
voting power on such proposal.
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