Exhibit 3 (ii)
1987
AMENDED AND RESTATED BY-LAWS
OF
CAMCO FINANCIAL CORPORATION
ARTICLE ONE
OFFICES
Section 1.01. Registered Office. The registered office shall be in the
City of Wilmington, County of New Castle, State of Delaware or such other place
in the State of Delaware as the Directors may designate from time to time by
resolution.
Section 1.02. Business Offices. The corporation may also have offices
at such other places both within and without the State of Delaware as the board
of directors may from time to time determine or the business of the corporation
may require.
ARTICLE TWO
MEETINGS OF STOCKHOLDERS
Section 2.01. Place of Meetings. All meetings of the stockholders for
the election of directors shall be held in the City of Cambridge, State of Ohio
at such place as may be fixed from time to time by the board of directors, or at
such other place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2.02. Annual Meeting. Annual meetings of stockholders,
commencing with the year 1988 shall be held on the fourth Tuesday in May in each
year, if not a legal holiday, and if a legal holiday, then on the next business
day following, at three o'clock p.m. (local time at the place of meeting), or at
such other date or time as shall be designated from time to time by the board of
directors and stated in the notice of the meeting, for the election of directors
and to transact such other business as may properly be brought before the
meeting.
Section 2.03. Notice of Annual Meeting. Written notice of the annual
meeting of stockholders stating the place, date and hour of the meeting shall be
given to each stockholder entitled to vote at such meeting not less than ten nor
more than sixty (60) days before the date of the meeting.
Section 2.04. List of Stockholders. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 2.05. Special Meetings. Special meetings of the
stockholders, for any purpose or purposes, may be called only as provided in
the certificate of incorporation.
Section 2.06. Notice of Special Meetings. Written notice of a special
meeting stating the place, date and hour of the meeting, and the purpose or
purposes for which the meeting is called, shall be given not less than ten (10)
nor more than sixty (60) days before the date of the meeting, to each
stockholder entitled to vote at such meeting.
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Section 2.07. Business Transacted at Special Meetings. Business
transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
Section 2.08. Quorum. The holders of not less than a majority of the
stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time to another time or place, without notice other than
announcement at the meeting of the time and place of the adjourned meeting,
until a quorum shall be present or represented; provided, however, that if the
adjournment is for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting. At such adjourned meeting at which a quorum shall be present in person
or represented by proxy, the corporation may transact any business which might
have been transacted at the original meeting.
Section 2.09. Vote Required. At all meetings for the election of
directors at which a quorum is present, the candidates receiving the greatest
number of votes shall be elected. Any other matter submitted to the stockholders
at a meeting at which a quorum is present shall be decided by the vote of the
holders of a majority of the stock having voting power, represented in person or
by proxy, unless the matter is one upon which a different vote is required by
express provision of the statutes, the certificate of incorporation or the
by-laws, in which case such express provision shall govern and control the
decision of such matter.
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Section 2.10. Voting Rights. Unless otherwise provided in the
certificate of incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder.
Section 2.11. Proxies. Each stockholder entitled to vote at a meeting
of stockholders or to express consent and dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him by
proxy, but no such proxy shall be voted or acted upon after three (3) years from
its date, unless the proxy provides for a longer period.
Section 2.12. Action Without Meeting. Any action required or permitted
to be taken by the stockholders of the corporation must be taken pursuant to a
vote of such stockholders at an annual or special meeting of such stockholders
that is duly held pursuant to notice. No action required or permitted to be
taken by the stockholders of the corporation at any annual or special meeting of
such stockholders may be taken pursuant to one or more consents in writing
signed by the holders of all or any other portion of the outstanding stock
entitled to vote on such action.
ARTICLE THREE
DIRECTORS
Section 3.01. Number of Directors. The authorized number of directors
may be fixed or changed from time to time and at any time by a resolution
adopted by a majority of the whole authorized number of directors, but no
reduction in the number of directors shall of itself have the effect of
shortening the term of any incumbent director. Until changed in accordance with
law, the total authorized number of directors shall be nine (9). The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 3.03 of the by-laws.
Section 3.02. Classification and Term of Directors. The directors shall
be divided into three classes. If the authorized number of directors is
increased or decreased at any time, the directors may, by a resolution adopted
by the whole authorized number of directors, determine the number of directors
to be added or subtracted, as the case may be, from any class or classes of
directors, and the effect of such increase or decrease on each class need not be
uniform; provided, however, that the authorized number of directors of any class
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shall not exceed by more than four (4) the authorized number of directors of any
other class. The election of each class of directors shall be a separate
election. The term of office of the three directors who shall be elected at the
annual meeting of stockholders for 1977 shall expire at the annual meeting of
stockholders for 1980; the term of office of Larry A. Caldwell, David A.
Kesterson and John H. Heiby, who were elected as directors at the annual meeting
of stockholders for 1976, shall expire at the annual meeting of stockholders for
1979; and the term of office of Carl L. Ariker, J.D. Knapp, M.D. and Robert S.
Moorehead, who were elected as directors at the annual meeting of stockholders
for 1975, shall expire at the annual meeting of stockholders for 1978; and at
each annual meeting of stockholders commencing with the year 1978, directors
shall be elected to succeed the directors of the class whose terms shall expire
in that year, each to hold office for a term of three years, so that the term of
office of one class of directors shall expire in each year; provided, however,
that each director elected at any time shall hold office until his successor is
duly elected and shall qualify, or until his earlier death, resignation or
removal.
Section 3.03. Vacancies. Vacancies, and newly-created directorships
resulting from any increase in the authorized number of directors, may be filled
by a majority of the directors then in office, though less than a quorum, or by
a sole remaining director, and any director so chosen shall hold office until
the next annual election and until his successor is duly elected and shall
qualify, or until his earlier death, resignation or removal. If there are no
directors in office, then an election of directors may be held in the manner
provided by statute. If, at the time of filling any vacancy or any newly-created
directorship, the directors then in office shall constitute less than a majority
of the whole board (as constituted immediately prior to any such increase), the
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Court of Chancery of the State of Delaware may, upon application of any
stockholder or stockholders holding at least ten percent (10%) of the total
number of the shares at the time outstanding having the right to vote for such
directors, summarily order an election to be held to fill any such vacancies or
newly created directorships, or to replace the directors chosen by the directors
then in office.
Section 3.04. Authority of Board of Directors. The business 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 certificate of incorporation or by the by-laws directed or
required to be exercised or done by the stockholders.
Section 3.05. Place of Meetings. All meetings of the board of
directors, both regular and special, may be held at the principal office of the
corporation in Cambridge, Ohio or at any other place within or without the State
of Delaware.
Section 3.06. Regular Meetings. A regular meeting of the board of
directors shall be held immediately following the adjournment of each annual
meeting of stockholders at which directors are elected, and notice of such
meeting need not be given. Additional regular meetings of the board of directors
may be held at such other times and places as may from time to time be
determined by resolution by the board of directors, and notice of any such
additional regular meeting need not be given.
Section 3.07. Special Meetings. Special meetings of the board of
directors may be called only by the president upon his causing one (1) days'
notice thereof to be given to each director, either personally or by mail or by
telegram. Special meetings of the board of directors shall be called by the
president or secretary in like manner and upon the giving of like notice on the
written request of two directors.
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Section 3.08. Quorum. At all meetings of the board a majority of the
number of directors in office, but in no case less than one-third (1/3) of the
total number of directors authorized by, or in the manner provided in, the
certificate of incorporation or the by-laws, shall constitute a quorum for the
transaction of business and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the board of
directors, except as may be otherwise specifically provided by statute or by the
certificate of incorporation or by the by-laws. If a quorum shall not be present
at any meeting of the board of directors, the directors present thereat may
adjourn the meeting from time to time to another time or place, without notice
other than announcement at the meeting of the time and place of the adjourned
meeting, until a quorum shall be present.
Section 3.09. Action Without Meeting. Unless otherwise restricted by
the certificate of incorporation or the by-laws, any action required or
permitted to be taken at any meeting of the board of directors, or of any
committee thereof, may be taken without a meeting if all members of the board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the board or committee.
Section 3.10. Committees of Directors. The board of directors may, by
resolution passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. The board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
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unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee shall, unless otherwise specifically provided in the resolution of the
board of directors, have and may exercise all the powers and authority of the
board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation [except that
a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) of the General Corporation Law of Delaware, fix
any of the preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the corporation or the
conversion into, or the exchange of such shares for, shares of any other class
or classes or any other series of the same or any other class or classes of
stock of the corporation], adopting an agreement of merger or consolidation
under Sections 251 or 252 of the General Corporation Law of Delaware,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, recommending to the
stockholders a dissolution of the corporation or a revocation of a dissolution,
or amending the by-laws of the corporation: and, unless otherwise specifically
provided in the resolution of the board of directors, the by-laws, or the
certificate of incorporation, such committee shall have the power or authority
to declare a dividend, to authorize the issuance of stock, or to adopt a
certificate of ownership and merger pursuant to Section 253 of the General
Corporation Law of Delaware. Such committee or committees shall have such name
or names as may be determined from time to time by resolution adopted by the
board of directors.
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Section 3.11. Committee Minutes. Each committee shall keep
regular minutes of its meetings and report the same to the board of directors
when required.
Section 3.12. Compensation of Directors. Unless otherwise restricted by
the certificate of incorporation, the board of directors shall have the
authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the board of directors and
may be paid a fixed sum for attendance at each meeting of the board of directors
or a stated salary as director. No such payment shall preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Section 3.13. Qualifications of Directors.
1. No person shall serve or be appointed, nominated or elected as a
Director of the corporation after having attained the age of seventy (70) years.
2. No person shall serve or be appointed, nominated or elected as a
Director of the corporation who is not the holder of record of at least one
hundred (100) shares of its issued and outstanding common stock.
3. Any nominee for election as a Director of the corporation may be
proposed only by the Board of Directors or by any stockholder entitled to vote
for the election of such person as a Director. No person, other than a nominee
proposed by the Board of Directors, may be nominated for election, or elected,
as a Director of the corporation unless such person shall have been proposed as
a Director in a written notice from a stockholder entitled to vote for the
election of such person as a Director, delivered or mailed by first-class United
States mail, postage prepaid, to the Secretary of the corporation at its
principal office. In the case of a nominee proposed for election as a Director
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at an annual meeting of stockholders, such written notice of a proposed nominee
must be received by the Secretary of the corporation on or before the later of
(A) March 31 immediately preceding such annual meeting or (B) the sixtieth
(60th) day prior to the first anniversary of the most recent annual meeting of
stockholders of the corporation held for the election of Directors; provided,
however, that if the annual anniversary, then the written notice required by
this paragraph (3) 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 stockholders 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 stockholders. Each such written notice of a proposed nominee shall set forth
(i) the name, age, business and residence addresses of each nominee proposed in
such notice, (ii) the principal occupation or employment of each such nominee
and (iii) the number of each class of shares of the stock of the corporation
owned beneficially and/or of record by each such nominee and the length of time
such shares have been so owned.
4. If a stockholder shall attempt to nominate one or more persons for
election as a Director at any meeting of stockholders at which one or more
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, paragraph (3) of this Section 3.13, each such
attempted nomination shall be invalid and shall be disregarded unless the person
acting as chairman of the meeting determines, in his sole discretion, that
acceptance of such nomination is unlikely to affect the results of such election
and should accordingly be accepted as a courtesy.
5. Nothing contained in this Section 3.13 shall be construed to
prohibit the Board of Directors to fix powers or voting or other rights of the
preferred stock, or of any series of the preferred stock, of the corporation
that are inconsistent with the provisions of this Section 3.13, and if the terms
and provisions fixing the powers or voting or other rights of any such stock
shall be inconsistent with the provisions of this Section 3.13, the terms and
provisions of such powers or voting or other rights shall govern and control.
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ARTICLE FOUR
NOTICES
Section 4.01. Form of Notice. Whenever, under the provisions of the
statutes or of the certificate of incorporation or of the by-laws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder at his address as it appears on the
records of the corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by telegram.
Section 4.02. Waiver of Notice. Whenever any notice is required to be
given under the provisions of the statutes, of the certificate of incorporation
or of the by-laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE FIVE
OFFICERS
Section 5.01. Officers. The officers of the corporation shall be chosen
by the board of directors and shall be a president, who must be a director; a
vice-president; a secretary; a treasurer and such additional officers and
assistant officers as the directors may from time to time elect. The board of
directors may elect a chairman of the board, who must be a director. Any number
of offices may be held by the same person, unless the certificate of
incorporation or the by-laws otherwise provide.
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Section 5.02. Term. Any officer of the corporation shall hold
office at the pleasure of the board of directors and until his successor is
elected and qualified, or until his earlier death, resignation or removal.
Section 5.03. Additional Officers and Agents. The board of directors
may appoint such other officers and agents as it shall deem necessary, who shall
hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the board.
Section 5.04. Compensation. The compensation of all officers and
agents of the corporation shall be fixed by the board of directors
.
Section 5.05. Removal of Officers. Any officer elected or
appointed by the board of directors may be removed at any time by the board of
directors. Any vacancy occurring in any office of the corporation shall
be filled by the board of directors.
Section 5.06. Duties of the Chairman of the Board. The chairman of the
board, if any, shall preside at all meetings of the directors at which he is
present.
Section 5.07. Duties of the President. The president shall be the chief
executive officer of the corporation, shall preside at all meetings of the
stockholders and, in the absence of the chairman of the board, or if there is no
chairman of the board, at all meetings of the board of directors, shall have
general and active management of the business of the corporation and shall see
that all orders and resolutions of the board of directors are carried into
effect. He shall execute bonds, mortgages and other contracts requiring a seal,
under the seal of the corporation, except where required or permitted by law to
be otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the board of directors to some other
officer or agent of the corporation.
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Section 5.08. Duties of the Vice-President. In the absence of the
president or in the event of his inability or refusal to act, the vice-president
(or in the event there be more than one vice-president, the vice-presidents in
the order designated by the board of directors, 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 board of directors may from time
to time prescribe.
Section 5.09. Duties of the Secretary. The secretary shall attend all
meetings of the board of directors and all meetings of the stockholders and
shall record all the proceedings of the meetings of the stockholders and of the
board of directors in a book to be kept for that purpose and shall perform like
duties for the standing committees when required. He shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
board of directors, and shall perform such other duties as may be prescribed by
the board of directors or the president, under whose supervision he shall be. He
shall have custody of the corporate seal of the corporation, if any, and he, or
an assistant secretary, shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his signature or by the
signature of such assistant secretary. The board of directors may give general
authority to any other officer to affix the seal of the corporation and to
attest the affixing by his signature.
Section 5.10. Duties of the Assistant Secretary. The assistant
secretary, if any, or if there be more than one, the assistant secretaries in
the order determined by the board of directors (or if there be no such
determination, then in the order of their election), shall, in the absence of
the secretary or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the secretary and shall perform such other
duties and have such other powers as the board of directors may from time to
time prescribe.
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Section 5.11. Duties of the 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 may be designated by the board
of directors. The treasurer shall disburse the funds of the corporation as may
be ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
If required by the board of directors, the treasurer shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 5.12. Duties of the Assistant Treasurer. The assistant
treasurer, if any, or if there shall be more than one, the assistant treasurers
in the order determined by the board of directors (or if there be no such
determination, then in the order of their election), shall, in the absence of
the treasurer or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the treasurer and shall perform such other
duties and have such other powers as the board of directors may from time to
time prescribe.
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ARTICLE SIX
STOCK AND STOCKHOLDERS
Section 6.01. Certificates. Every holder of stock in the corporation
shall be entitled to have a certificate, signed by or in the name of the
corporation by the chairman of the board or the president or a vice-president,
and the treasurer or an assistant treasurer, or the secretary or an assistant
secretary of the corporation, representing the number of shares owned by him in
the corporation, which certificate may, at the option of the corporation, bear
such recitals as are required or permitted by law. Any or all of the signatures
on the certificate may be facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
Section 6.02. Record Date. In order that the corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the board of directors may fix, in advance,
a record date, which shall not (i) be more than sixty (60) nor less than ten
(10) days before the date of such meeting, nor more than sixty (60) days prior
to any other action, or (ii) precede the date upon which the resolution fixing
such record date is adopted by the board of directors. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the board of directors may fix a new record date for the adjourned meeting.
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Section 6.03. Registered Stockholders. The corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and to hold
liable for such calls and assessments as are permitted by statute a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by statute.
Section 6.04. Transfers. Where a certificate evidencing stock
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 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 indorsement 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 a commercial bank
or trust company having an office or a correspondent
in the City of New York or by a firm having
membership in the New York Stock Exchange; and
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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 6.05. Lost, Wrongfully Taken or Destroyed Certificates. Except
as otherwise provided by law, where the owner of a certificate evidencing stock
of the corporation claims that such certificate has been lost, destroyed or
wrongfully taken, the board of 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
board of directors, an indemnity bond, with surety
or sureties satisfactory to the corporation, in
such sum as the directors may, in their discretion,
deem reasonably sufficient as indemnity against any
loss or liabilit ythat 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 board of directors, in their
discretion.
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ARTICLE SEVEN
INDEMNIFICATION AND INSURANCE
Section 7.01. Mandatory Indemnification. The corporation shall
indemnify any officer or director of the corporation, and any officer (other
than an assistant officer) or director (i) of a subsidiary of the corporation or
(ii) of a subsidiary of any such subsidiary, 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 or agent of the corporation or of a subsidiary 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 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 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, and with respect to any criminal action or proceeding, he had no
reasonable cause to believe his conduct was unlawful. A person claiming
indemnification under this Section 7.01 shall be presumed, in respect of any act
or omission giving rise to such claim for indemnification, to have 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 criminal matter, to have
had no reasonable cause to believe his conduct was unlawful, 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.
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Section 7.02. Court-Approved Indemnification. Anything contained
in the by-laws 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 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, 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
gross negligence or misconduct (other than negligence) in the performance of his
duty to the corporation unless and only to the extent that the Court of Common
Pleas of Franklin 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 of Franklin
County, Ohio 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 7.02.
Section 7.03. Indemnification for Expenses. Anything contained in the
by-laws 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
7.01, 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.
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Section 7.04. Determination Required. Any indemnification required
under Section 7.01 and not precluded under Section 7.02 shall be made by the
corporation only upon a determination that such indemnification of the officer
or director is proper in the circumstances because he has met the applicable
standard of conduct set forth in Section 7.01. 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 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, by independent legal counsel in a
written opinion, or (C) by the stockholders, or (D) by the Court of Common Pleas
of Franklin 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 7.04 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 stockholders
under division (C) of this Section 7.04]; 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 stockholders under division
(C) of this Section 7.04 shall be evidence in rebuttal of the presumption
recited in Section 7.01.
Section 7.05. Advances for Expenses. 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 7.01 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:
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(A) if it shall ultimately be determined as provided in
Section 7.04 that he is not entitled to be indemnified by the corporation as
provided under Section 7.01; or
(B) if, in respect of any claim, issue or other matter
asserted by or in the right of the corporation in such action or suit, he shall
have been adjudged to be liable for gross negligence or misconduct (other than
negligence) in the performance of his duty to the corporation, unless and only
to the extent that the Court of Common Pleas of Franklin 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, he is fairly and reasonably entitled to all or part of such
indemnification.
Section 7.06. Article Seven Not Exclusive. The indemnification provided
by this Article Seven shall not be deemed exclusive of any other rights to which
any person seeking indemnification may be entitled under the certificate of
incorporation or any by-law, agreement, vote of stockholders or 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 7.07. Insurance. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, 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 the obligation or the power to
indemnify him against such liability under the provisions of this Article Seven.
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Section 7.08. Certain Definitions. For purposes of this Article
Seven, and as examples and not by way of limitation:
(A) a person claiming indemnification under this Article Seven
shall be deemed to have been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Section 7.01, 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); and
(B) references to an "other enterprise" shall include employee
benefit plans; references to a "fine" shall include any excise taxes assessed on
a person with respect to an employee benefit plan; 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; and references to "a
subsidiary of the corporation" shall include another corporation if securities
representing at least a majority of the voting power of such other corporation
are owned by the corporation; and a person who acted in good faith and in a
manner he reasonably believed to be in the best interests of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" within the meaning
of that term as used in this Article Seven.
Section 7.09. Venue. Any action, suit or proceeding to determine a
claim for indemnification under this Article Seven may be maintained by the
person claiming such indemnification, or by the corporation, in the Court of
Common Pleas of Franklin County, Ohio. The corporation and (by claiming such
indemnification) each such person consent to the exercise of jurisdiction over
its or his person by the Court of Common Pleas of Franklin County, Ohio in any
such action, suit or proceeding.
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ARTICLE EIGHT
MISCELLANEOUS
Section 8.01. Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation, 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 capital stock, subject to the provisions of the certificate of
incorporation. Before payment of any dividend, there may be set aside out of any
funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, deem proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 8.02. Checks. All checks or demands for money and notes
of the corporation shall be signed by such officer or officers or such
other person or persons as the board of directors may from time to time
designate.
Section 8.03. Fiscal Year. The fiscal year of the corporation
may be fixed by resolution of the board of directors.
Section 8.04. Seal. The corporate seal, if any, may have
inscribed thereon the name of the corporation, the year of its organization
and the words "Corporate Seal, Delaware". The seal may be used by causing
it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE NINE
AMENDMENTS
Section 9.01. Amendments. The by-laws of the corporation may
be adopted, altered, amended or repealed only as provided in the certificate
of incorporation.
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