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EXHIBIT 3.2
CODE OF REGULATIONS
OF
COLUMBIA FINANCIAL OF KENTUCKY, INC.
ARTICLE ONE
MEETINGS OF SHAREHOLDERS
Section 1.01. Annual Meetings. The annual meeting of the shareholders
for the election of directors, for the consideration of reports to be laid
before such meeting and for the transaction of such other business as may
properly come before such meeting, shall be held on the third Thursday of
January in each year or on such other date as may be fixed from time to time by
the directors.
Section 1.02. Calling of Meetings. Meetings of the shareholders may be
called only by the chairman of the board, the president, or, in case of the
president's absence, death, or disability, the vice president authorized to
exercise the authority of the president; the secretary; the directors by action
at a meeting, or a majority of the directors acting without a meeting; or the
holders of at least twenty-five percent of all shares outstanding and entitled
to vote thereat.
Section 1.03. Place of Meetings. All meetings of shareholders shall be
held at the principal office of the corporation, unless otherwise provided by
action of the directors. Meetings of shareholders may be held at any place
within or without the State of Ohio.
Section 1.04. Notice of Meetings. (A) Written notice stating the time,
place and purposes of a meeting of the shareholders shall be given either by
personal delivery or by mail not less than seven nor more than sixty days
before the date of the meeting, (1) to each shareholder of record entitled to
vote at the meeting, (2) by or at the direction of the president or the
secretary. If mailed, such notice shall be addressed to the shareholder at his
address as it appears on the records of the corporation. Notice of adjournment
of a meeting need not be given if the time and place to which it is adjourned
are fixed and announced at such meeting. In the event of a transfer of shares
after the record date for determining the shareholders who are entitled to
receive notice of a meeting of shareholders, it shall not be necessary to give
notice to the transferee. Nothing herein contained shall prevent the setting
of a record date in the manner provided by law, the Articles or the Regulations
for the determination of shareholders who are entitled to receive notice of or
to vote at any meeting of shareholders or for any purpose required or permitted
by law.
(B) Following receipt by the president or the secretary of a request in
writing, specifying the purpose or purposes for which the persons properly
making such request have called a meeting of the shareholders, delivered either
in person or by registered mail to such officer by any persons entitled to call
a meeting of shareholders, such officer shall cause to be given to the
shareholders entitled thereto notice of a meeting to be held on a date not less
than seven nor more than sixty days after the receipt of such request, as such
officer may fix. If such notice is not given within fifteen days after the
receipt of such request by the president or the secretary, then, and only then,
the persons properly
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calling the meeting may fix the time of meeting and give notice thereof in
accordance with the provisions of the Regulations.
Section 1.05. Waiver of Notice. Notice of the time, place and purpose or
purposes of any meeting of shareholders may be waived in writing, either before
or after the holding of such meeting, by any shareholders, which writing shall
be filed with or entered upon the records of such meeting. The attendance of
any shareholder, in person or by proxy, at any such meeting without protesting
the lack of proper notice, prior to or at the commencement of the meeting,
shall be deemed to be a waiver by such shareholder of notice of such meeting.
Section 1.06. Quorum. At any meeting of shareholders, the holders of a
majority of the voting shares of the corporation then outstanding and entitled
to vote thereat, present in person or by proxy, shall constitute a quorum for
such meeting. The holders of a majority of the voting shares represented at a
meeting, whether or not a quorum is present, or the chairman of the board, the
president, or the officer of the corporation acting as chairman of the meeting,
may adjourn such meeting from time to time, and if a quorum is present at such
adjourned meeting any business may be transacted as if the meeting had been
held as originally called.
Section 1.07. Votes Required. At all elections of directors the
candidates receiving the greatest number of votes shall be elected. Any other
matter submitted to the shareholders for their vote shall be decided by the
vote of such proportion of the shares, or of any class of shares, or of each
class, as is required by law, the Articles or the Regulations.
Section 1.08. Order of Business. The order of business at any meeting of
shareholders shall be determined by the officer of the corporation acting as
chairman of such meeting unless otherwise determined by a vote of the holders
of a majority of the voting shares of the corporation then outstanding, present
in person or by proxy, and entitled to vote at such meeting.
Section 1.09. Shareholders Entitled to Vote. Each shareholder of record
on the books of the corporation on the record date for determining the
shareholders who are entitled to vote at a meeting of shareholders shall be
entitled at such meeting to one vote for each share of the corporation standing
in his name on the books of the corporation on such record date. The directors
may fix a record date for the determination of the shareholders who are
entitled to receive notice of and to vote at a meeting of shareholders, which
record date shall not be a date earlier than the date on which the record date
is fixed and which record date may be a maximum of sixty days preceding the
date of the meeting of shareholders.
Section 1.10. Cumulative Voting. If notice in writing shall be given by
a shareholder to the president, a vice president or the secretary of the
corporation, not less than forty-eight hours before the time fixed for holding
a meeting of the shareholders for the purpose of electing directors if notice
of such meeting shall have been given at least ten days prior thereto, and
otherwise not less than twenty-four hours before such time, that such
shareholder desires that the voting at such election shall be cumulative, and
if an announcement of the giving of such notice is made upon the convening of
the meeting by the chairman or secretary or by or on behalf of the shareholder
giving such notice, each shareholder shall have the right to cumulate such
voting power as he possesses and to give one candidate as many votes as is
determined by multiplying the number of directors to be elected by the number
of
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votes to which such shareholder is entitled, or to distribute such number of
votes on the same principle among two or more candidates, as he sees fit.
Section 1.11. Proxies. At meetings of the shareholders any shareholder
of record entitled to vote thereat may be represented and may vote by a proxy
or proxies appointed by an instrument in writing signed by such shareholder,
but such instrument shall be filed with the secretary of the meeting before the
person holding such proxy shall be allowed to vote thereunder. No proxy shall
be valid after the expiration of eleven months after the date of its execution,
unless the shareholder executing it shall have specified therein the length of
time it is to continue in force.
Section 1.12. Inspectors of Election. In advance of any meeting of
shareholders, the directors may appoint inspectors of election to act at such
meeting or any adjournment thereof; if inspectors are not so appointed, the
officer of the corporation acting as chairman of any such meeting may make such
appointment. In case any person appointed as inspector fails to appear or act,
the vacancy may be filled only by appointment made by the directors in advance
of such meeting or, if not so filled, at the meeting by the officer of the
corporation acting as chairman of such meeting. No other person or persons may
appoint or require the appointment of inspectors of election.
ARTICLE TWO
DIRECTORS
Section 2.01. Authority and Qualifications. Except where the law, the
Articles or the Regulations otherwise provide, all authority of the corporation
shall be vested in and exercised by its directors. Directors need not be
shareholders of the corporation.
Section 2.02. Number of Directors and Term of Office
(A) Until changed in accordance with the provisions of the Regulations,
the number of directors of the corporation shall be seven. Directors shall be
divided into two (2) classes, each of which shall consist of such number of
directors, not less than three, as may be determined by the shareholders or
directors in the manner described in paragraphs (B) and (C) of this Section.
The number of directors in each class need not be uniform. At the time of the
adoption of these Regulations, four persons shall be elected to serve as
directors until the annual meeting of the shareholders in 1998 and until their
successors are duly elected and qualified and three persons shall be elected to
serve as directors until the annual meeting of the shareholders in 1999 and
until their successors are duly elected and qualified. At each annual meeting
of shareholders beginning with the 1998 annual meeting, a class of directors
shall be elected to serve a term of two years to succeed the class of directors
whose terms shall expire at each such annual meeting in a manner by which the
term of office of only one class of directors shall expire in each such year;
provided, however, that each director elected at any time shall hold office
until his successor is duly elected and qualified or until his earlier
resignation, removal from office, or death.
(B) The number of directors may be fixed or changed at a meeting of the
shareholders called for the purpose of electing directors at which a quorum is
present, only by the affirmative vote of the holders of not less than a
majority of the voting shares which are represented at the meeting, in person
or by proxy, and entitled to vote on such proposal.
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(C) The directors may fix or change the number of directors and may fill
any director's office that is created by an increase in the number of
directors.
(D) No reduction in the number of directors shall of itself have the
effect of shortening the term of any incumbent director.
Section 2.03. Nomination. (A) Any nominee for election as a director of
the corporation may be proposed only by the directors or by any shareholder
entitled to vote for the election of directors. No person, other than a
nominee proposed by the directors, may be nominated for election as a director
of the corporation unless such person shall have been proposed in a written
notice, delivered or mailed by first class United States mail, postage prepaid,
to the Secretary of the corporation at the principal offices of the
corporation. In the case of a nominee proposed for election as a director at
an annual meeting of shareholders, such written notice of a proposed nominee
must be received by the Secretary of the corporation on or before the sixtieth
(60th) day before the first anniversary of the most recent annual meeting of
shareholders of the corporation held for the election of directors; provided,
however, that if the annual meeting for the election of director in any year is
not held on or before the thirty-first (31st) day next following such
anniversary, then the written notice required by this subparagraph (A) must be
received by the Secretary within a reasonable time prior to the date of such
annual meeting. In the case of a nominee proposed for election as a director
at a special meeting of shareholders at which directors are to be elected, such
written notice of a proposed nominee must be received by the Secretary of the
corporation no later than the close of business on the seventh day following
the day on which notice of the special meeting was mailed to shareholders.
Each such written notice of a proposed nominee shall set forth (1) the name,
age, business or residence address of each nominee proposed in such notice, (2)
the principal occupation or employment of each such nominee, and (3) the number
of common shares of the corporation owned beneficially and/or of record by each
such nominee and the length of time any such shares have been so owned.
(B) If a shareholder shall attempt to nominate one or more persons for
election as a director at any meeting at which directors are to be elected
without having identified each such person in a written notice given as
contemplated by, and/or without having provided therein the information
specified in, subparagraph (A) of this Section, each such attempted nomination
shall be invalid and shall be disregarded unless the person acting as Chairman
of the meeting determines that the facts warrant the acceptance of such
nomination.
Section 2.04. Election. At each annual meeting of shareholders for the
election of directors, the successors to the directors whose term shall expire
in that year shall be elected, but if the annual meeting is not held or if one
or more of such directors are not elected thereat, they may be elected at a
special meeting called for that purpose. The election of directors shall be by
ballot whenever requested by the presiding officer of the meeting or by the
holders of a majority of the voting shares outstanding, entitled to vote at
such meeting and present in person or by proxy, but unless such request is
made, the election shall be by voice vote.
Section 2.05. Removal. A director or directors may be removed from
office, with or without assigning any cause, only by the vote of the holders of
shares entitling them to exercise not less than a majority of the voting power
of the corporation to elect directors in place of those to be removed, provided
that unless all the directors, or all the directors of a particular class (if
the directors of the corporation are divided into classes), are removed, no
individual director shall be removed in case the
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votes of a sufficient number of shares are cast against his removal that, if
cumulatively voted at an election of all directors, or all the directors of a
particular class, as the case may be, would be sufficient to elect at least one
director. In case of any such removal, a new director may be elected at the
same meeting for the unexpired term of each director removed. Failure to elect
a director to fill the unexpired term of any director removed shall be deemed
to create a vacancy in the board.
Section 2.06. Vacancies. The remaining directors, though less than a
majority of the whole authorized number of directors, may, by the vote of a
majority of their number, fill any vacancy in the board for the unexpired term.
A vacancy in the board exists within the meaning of this Section 2.05 in case
the shareholders increase the authorized number of directors but fail at the
meeting at which such increase is authorized, or an adjournment thereof, to
elect the additional directors provided for, or in case the shareholders fail
at any time to elect the whole authorized number of directors.
Section 2.07. Meetings. A meeting of the directors shall be held
immediately following the adjournment of each annual meeting of shareholders at
which directors are elected, and notice of such meeting need not be given. The
directors shall hold such other meetings as may from time to time be called,
and such other meetings of directors may be called only by the chairman of the
board, the president, or any two directors. All meetings of directors shall be
held at the principal office of the corporation in or at such other place
within or without the State of Ohio, as the directors may from time to time
determine by a resolution. Meetings of the directors may be held through any
communications equipment if all persons participating can hear each other and
participation in a meeting pursuant to this provision shall constitute presence
at such meeting.
Section 2.08. Notice of Meetings. Notice of the time and place of each
meeting of directors for which such notice is required by law, the Articles,
the Regulations or the By-Laws shall be given to each of the directors by at
least one of the following methods:
(A) In a writing mailed not less than three
days before such meeting and addressed to the residence or
usual place of business of a director, as such address
appears on the records of the corporation; or
(B) By telegraph, cable, radio, wireless, or a
writing sent or delivered to the residence or usual place
of business of a director as the same appears on the
records of the corporation, not later than the day before
the date on which such meeting is to be held; or
(C) Personally or by telephone not later than
the day before the date on which such meeting is to be
held.
Notice given to a director by any one of the methods specified in the
Regulations shall be sufficient, and the method of giving notice to all
directors need not be uniform. Notice of any meeting of directors may be given
only by the chairman of the board, the president or the secretary of the
corporation. Any such notice need not specify the purpose or purposes of the
meeting. Notice of adjournment of a meeting of directors need not be given if
the time and place to which it is adjourned are fixed and announced at such
meeting.
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Section 2.09. Waiver of Notice. Notice of any meeting of directors may
be waived in writing, either before or after the holding of such meeting, by
any director, which writing shall be filed with or entered upon the records of
the meeting. The attendance of any director at any meeting of directors
without protesting, prior to or at the commencement of the meeting, the lack of
proper notice, shall be deemed to be a waiver by him of notice of such meeting.
Section 2.10. Quorum. A majority of the whole authorized number of
directors shall be necessary to constitute a quorum for a meeting of directors,
except that a majority of the directors in office shall constitute a quorum for
filling a vacancy in the board. The act of a majority of the directors present
at a meeting at which a quorum is present is the act of the board, except as
otherwise provided by law, the Articles or the Regulations.
Section 2.11. Compensation. Directors shall be entitled to receive as
compensation for services rendered and expenses incurred as directors, such
amounts as the directors may determine.
Section 2.12. By-Laws. The directors may adopt, and amend from time to
time, By-Laws for their own government, which By-Laws shall not be inconsistent
with the law, the Articles or the Regulations.
ARTICLE THREE
OFFICERS
Section 3.01. Officers. The officers of the corporation to be elected by
the directors shall be a president, a secretary, a treasurer, and, if desired,
one or more vice presidents and such other officers and assistant officers as
the directors may from time to time elect. The directors may elect a chairman
of the board, who must be a director. Officers need not be shareholders of the
corporation, and may be paid such compensation as the board of directors may
determine. Any two or more offices may be held by the same person, but no
officer shall execute, acknowledge, or verify any instrument in more than one
capacity if such instrument is required by law, the Articles, the Regulations
or the By-Laws to be executed, acknowledged, or verified by two or more
officers.
Section 3.02. Tenure of Office. The officers of the corporation shall
hold office at the pleasure of the directors. Any officer of the corporation
may be removed, either with or without cause, at any time, by the affirmative
vote of a majority of all the directors then in office; such removal, however,
shall be without prejudice to the contract rights, if any, of the person so
removed.
Section 3.03. Duties of the Chairman of the Board. The chairman of the
board, if any, shall preside at all meetings of the directors. He shall have
such other powers and duties as the directors shall from time to time assign to
him.
Section 3.04. Duties of the President. The president shall be the chief
executive officer of the corporation and shall exercise supervision over the
business of the corporation and shall have, among such additional powers and
duties as the directors may from time to time assign to him, the power and
authority to sign all certificates evidencing shares of the corporation and all
deeds, mortgages, bonds, contracts, notes and other instruments requiring the
signature of the president of the corporation. It shall be the duty of the
president to preside at all meetings of shareholders.
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Section 3.05. Duties of the Vice Presidents. In the absence of the
president or in the event of his inability or refusal to act, the vice
president, if any (or in the event there be more than one vice president, the
vice presidents in the order designated, or in the absence of any designation,
then in the order of their election), shall perform the duties of the
president, and when so acting, shall have all the powers of and be subject to
all restrictions upon the president. The vice presidents shall perform such
other duties and have such other powers as the directors may from time to time
prescribe.
Section 3.06. Duties of the Secretary. It shall be the duty of the
secretary, or of an assistant secretary, if any, in case of the absence or
inability to act of the secretary, to keep minutes of all the proceedings of
the shareholders and the directors and to make a proper record of the same; to
perform such other duties as may be required by law, the Articles or the
Regulations; to perform such other and further duties as may from time to time
be assigned to him by the directors or the president; and to deliver all books,
paper and property of the corporation in his possession to his successor, or to
the president.
Section 3.07. Duties of the Treasurer. The treasurer, or an assistant
treasurer, if any, in case of the absence or inability to act of the treasurer,
shall receive and safely keep in charge all money, bills, notes, choses in
action, securities and similar property belonging to the corporation, and shall
do with or disburse the same as directed by the president or the directors;
shall keep an accurate account of the finances and business of the corporation,
including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, stated capital and shares, together with such other accounts as may be
required and hold the same open for inspection and examination by the directors;
shall give bond in such sum with such security as the directors may require for
the faithful performance of his duties; shall, upon the expiration of his term
of office, deliver all money and other property of the corporation in his
possession or custody to his successor or the president; and shall perform such
other duties as from time to time may be assigned to him by the directors.
ARTICLE FOUR
SHARES
Section 4.01. Certificates. Certificates evidencing ownership of shares
of the corporation shall be issued to those entitled to them. Each certificate
evidencing shares of the corporation shall bear a distinguishing number; the
signatures of the chairman of the board, the president, or a vice president,
and of the secretary or an assistant secretary, or the treasurer or an
assistant treasurer (except that when any such certificate is countersigned by
an incorporated transfer agent or registrar, such signatures may be facsimile,
engraved, stamped or printed); and such recitals as may be required by law.
Certificates evidencing shares of the corporation shall be of such tenor and
design as the directors may from time to time adopt and may bear such recitals
as are permitted by law.
Section 4.02. Transfers. Where a certificate evidencing a share or
shares of the corporation is presented to the corporation or its proper agents
with a request to register transfer, the transfer shall be registered as
requested if:
(1) An appropriate person signs on each certificate so presented or signs
on a separate document an assignment or transfer of shares evidenced by each
such certificate, or signs a
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power to assign or transfer such shares, or when the signature of an appropriate
person is written without more on the back of each such certificate; and
(2) Reasonable assurance is given that the endorsement of each appropriate
person is genuine and effective; the corporation or its agents may refuse to
register a transfer of shares unless the signature of each appropriate person
is guaranteed by an "eligible guarantor institution" as defined in Rule 17Ad-15
under the Securities Act of 1934 or any successor rule or regulation; and
(3) All applicable laws relating to the collection of transfer or other
taxes have been complied with; and
(4) The corporation or its agents are not otherwise required or permitted
to refuse to register such transfer.
Section 4.03. Transfer Agents and Registrars. The directors may appoint
one or more agents to transfer or to register shares of the corporation, or
both.
Section 4.04. Lost, Wrongfully Taken or Destroyed Certificates. Except
as otherwise provided by law, where the owner of a certificate evidencing
shares of the corporation claims that such certificate has been lost, destroyed
or wrongfully taken, the directors must cause the corporation to issue a new
certificate in place of the original certificate if the owner:
(1) So requests before the corporation has notice that such original
certificate has been acquired by a bona fide purchaser; and
(2) Files with the corporation, unless waived by the directors, an
indemnity bond, with surety or sureties satisfactory to the corporation, in
such sums as the directors may, in their discretion, deem reasonably sufficient
as indemnity against any loss or liability that the corporation may incur by
reason of the issuance of each such new certificate; and
(3) Satisfies any other reasonable requirements which may be imposed by
the directors, in their discretion.
Section 4.05. Uncertificated Shares. Anything contained in this Article
Four to the contrary notwithstanding, the directors may provide by resolution
that some or all of any or all classes and series of shares of the corporation
shall be uncertificated shares, provided that such resolution shall not apply
to (A) shares of the corporation represented by a certificate until such
certificate is surrendered to the corporation in accordance with applicable
provisions of Ohio law or (B) any certificated security of the corporation
issued in exchange for an uncertificated security in accordance with applicable
provisions of Ohio law. The rights and obligations of the holders of
uncertificated shares and the rights and obligations of the holders of
certificates representing shares of the same class and series shall be
identical, except as otherwise expressly provided by law.
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ARTICLE FIVE
INDEMNIFICATION AND INSURANCE
Section 5.01. Indemnification. The corporation shall indemnify any
officer or director of the corporation 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
(including, without limitation, any action threatened or instituted by or in
the right of the corporation), by reason of the fact that he is or was a
director, officer, employee, agent or volunteer of the corporation, or is or
was serving at the request of the corporation as a director, trustee, officer,
employee, member, manager, agent or volunteer of another corporation (domestic
or foreign, nonprofit or for profit), limited liability company, partnership,
joint venture, trust or other enterprise, against expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and transcript
costs), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if his act
or omission giving rise to any claim for indemnification under this Section
5.01 was not occasioned by his intent to cause injury to the corporation or by
his reckless disregard for the best interests of the corporation, and in
respect of any criminal action or proceeding, he had no reasonable cause to
believe his conduct was unlawful. It shall be presumed that no act or omission
of a person claiming indemnification under this Section 5.01 that gives rise to
such claim was occasioned by an intent to cause injury to the corporation or by
a reckless disregard for the best interests of the corporation and, in respect
of any criminal matter, that such person had no reasonable cause to believe his
conduct was unlawful; the presumption recited in this Section 5.01 can be
rebutted only by clear and convincing evidence, and the termination of any
action, suit or proceeding by judgment, order, settlement or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, rebut
such presumption.
Section 5.02. Court-Approved Indemnification. Anything contained in the
Regulations or elsewhere to the contrary notwithstanding:
(A) the corporation shall not indemnify any officer or director of the
corporation who was a party to any completed action or suit instituted 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, agent or volunteer of
the corporation, or is or was serving at the request of the corporation as a
director, trustee, officer, employee, member, manager, agent or volunteer of
another corporation (domestic or foreign, nonprofit or for profit), limited
liability company, partnership, joint venture, trust or other enterprise, in
respect of any claim, issue or matter asserted in such action or suit as to
which he shall have been adjudged to be liable for an act or omission
occasioned by his deliberate intent to cause injury to the corporation or by
his reckless disregard for the best interests of the corporation, unless and
only to the extent that the Court of Common Pleas of Hamilton County, Ohio or
the court in which such action or suit was brought shall determine upon
application that, despite such adjudication of liability, and in view of all
the circumstances of the case, he is fairly and reasonably entitled to such
indemnity as such Court of Common Pleas or such other court shall deem proper;
and
(B) the corporation shall promptly make any such unpaid indemnification as
is determined by a court to be proper as contemplated by this Section 5.02.
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Section 5.03. Indemnification for Expenses. Anything contained in the
Regulations or elsewhere to the contrary notwithstanding, to the extent that an
officer or director of the corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section
5.01, or in defense of any claim, issue or matter therein, he shall be promptly
indemnified by the corporation against expenses (including, without limitation,
attorneys' fees, filing fees, court reporters' fees and transcript costs)
actually and reasonably incurred by him in connection therewith.
Section 5.04. Determination Required. Any indemnification required under
Section 5.01 and not precluded under Section 5.02 shall be made by the
corporation only upon a determination that such indemnification is proper in
the circumstances because the officer or director has met the applicable
standard of conduct set forth in Section 5.01. Such determination may be made
only (A) by a majority vote of a quorum consisting of directors of the
corporation who were not and are not parties to, or threatened with, any such
action, suit or proceeding, or (B) if such a quorum is not obtainable or if a
majority of a quorum of disinterested directors so directs, in a written
opinion by independent legal counsel other than an attorney, or a firm having
associated with it an attorney, who has been retained by or who has performed
services for the corporation, or any person to be indemnified, within the past
five years, or (C) by the shareholders, or (D) by the Court of Common Pleas of
Hamilton County, Ohio or (if the corporation is a party thereto) the court in
which such action, suit or proceeding was brought, if any; any such
determination may be made by a court under division (D) of this Section 5.04 at
any time including, without limitation, any time before, during or after the
time when any such determination may be requested of, be under consideration by
or have been denied or disregarded by the disinterested directors under
division (A) or by independent legal counsel under division (B) or by the
shareholders under division (C) of this Section 5.04; and no failure for any
reason to make any such determination, and no decision for any reason to deny
any such determination, by the disinterested directors under division (A) or by
independent legal counsel under division (B) or by the shareholders under
division (C) of this Section 5.04 shall be evidence in rebuttal of the
presumption recited in Section 5.01. Any determination made by the
disinterested directors under division (A) or by independent legal counsel
under division (B) of this Section 5.04 to make indemnification in respect of
any claim, issue or matter asserted in an action or suit threatened or brought
by or in the right of the corporation shall be promptly communicated to the
person who threatened or brought such action or suit, and within ten (10) days
after receipt of such notification such person shall have the right to petition
the Court of Common Pleas of Hamilton County, Ohio or the court in which such
action or suit was brought, if any, to review the reasonableness of such
determination.
Section 5.05. Advances for Expenses. The provisions of Section
1701.13(E)(5)(a) of the Ohio Revised Code do not apply to the corporation.
Expenses (including, without limitation, attorneys' fees, filing fees, court
reporters' fees and transcript costs) incurred in defending any action, suit or
proceeding referred to in Section 5.01 shall be paid by the corporation in
advance of the final disposition of such action, suit or proceeding to or on
behalf of the officer or director promptly as such expenses are incurred by
him, but only if such officer or director shall first agree, in writing, to
repay all amounts so paid in respect of any claim, issue or other matter
asserted in such action, suit or proceeding in defense of which he shall not
have been successful on the merits or otherwise if it is proved by clear and
convincing evidence in a court of competent jurisdiction that, in respect of
any such claim, issue or other matter, his relevant action or failure to act
was occasioned by his deliberate intent to cause injury to the corporation or
his reckless disregard for the best interests of the corporation, unless, and
only to the extent that, the Court of Common Pleas of Hamilton County, Ohio or
the court in which such action
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or suit was brought shall determine upon application that, despite such
determination, and in view of all of the circumstances, he is fairly and
reasonably entitled to all or part of such indemnification.
Section 5.06. Article Five Not Exclusive. The indemnification provided
by this Article Five shall not be exclusive of, and shall be in addition to,
any other rights to which any person seeking indemnification may be entitled
under the Articles, the Regulations, any agreement, a vote of disinterested
directors, or otherwise, both as to action in his 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 an officer or director of the corporation and
shall inure to the benefit of the heirs, executors, and administrators of such
a person.
Section 5.07. Insurance. The corporation may purchase and maintain
insurance, or furnish similar protection, including but not limited to trust
funds, letters of credit, or self-insurance, for or on behalf of any person who
is or was a director, officer, employee, agent or volunteer of the corporation,
or is or was serving at the request of the corporation as a director, trustee,
officer, employee, member, manager, agent or volunteer of another corporation
(domestic or foreign, nonprofit or for profit), limited liability company,
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 the obligation
or the power to indemnify him against such liability under the provisions of
this Article Five. Insurance may be purchased from or maintained with a person
in which the corporation has a financial interest.
Section 5.08. Certain Definitions. For purposes of this Article Five,
and as an example and not by way of limitation:
(A) A person claiming indemnification under this Article Five shall be
deemed to have been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 5.01, or in defense of any
claim, issue or other matter therein, if such action, suit or proceeding shall
be terminated as to such person, with or without prejudice, without the entry
of a judgment or order against him, without a conviction of him, without the
imposition of a fine upon him and without his payment or agreement to pay any
amount in settlement thereof (whether or not any such termination is based upon
a judicial or other determination of the lack of merit of the claims made
against him or otherwise results in a vindication of him).
(B) References to an "other enterprise" shall include employee tax benefit
plans; references to a "fine" shall include any excise taxes assessed on a
person with respect to an employee benefit plan; and references to "serving at
the request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on, or
involves services by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants or beneficiaries.
Section 5.09. Venue. Any action, suit or proceeding to determine a claim
for, or for repayment to the corporation of, indemnification under this Article
Five may be maintained by the person claiming such indemnification, or by the
corporation, in the Court of Common Pleas of Hamilton County, Ohio. The
corporation and (by claiming or accepting such indemnification) each such
person consent to the exercise of jurisdiction over its or his person by the
Court of Common Pleas of Hamilton County, Ohio in any such action, suit or
proceeding.
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ARTICLE SIX
MISCELLANEOUS
Section 6.01. Amendments. The Regulations may be amended, or new
regulations may be adopted, at a meeting of shareholders held for such purpose,
only by the affirmative vote of the holders of shares entitling them to
exercise not less than a majority of the voting power of the corporation on
such proposal, or without a meeting by the written consent of the holders of
shares entitling them to exercise not less than a majority of the voting power
of the corporation on such proposal.
Section 6.02. Action by Shareholders or Directors Without a Meeting.
Anything contained in the Regulations to the contrary notwithstanding, except
as provided in Section 6.01, any action which may be authorized or taken at a
meeting of the shareholders or of the directors or of a committee of the
directors, as the case may be, may be authorized or taken without a meeting
with the affirmative vote or approval of, and in a writing or writings signed
by, all the shareholders who would be entitled to notice of a meeting of the
shareholders held for such purpose, or all the directors, or all the members of
such committee of the directors, respectively, which writings shall be filed
with or entered upon the records of the corporation.