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AMENDED AND RESTATED REGULATIONS
OF
MEDEX MEDICAL, INC.
INDEX
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PAGE
ARTICLE ONE
MEETINGS OF SHAREHOLDERS...................................1
Section 1.01 Annual Meetings............................................1
Section 1.02 Calling of Meetings........................................1
Section 1.03 Place of Meetings..........................................1
Section 1.04 Notice of Meetings.........................................1
Section 1.05 Waiver of Notice...........................................2
Section 1.06 Quorum.....................................................3
Section 1.07 Votes Required.............................................3
Section 1.08 Order of Business..........................................3
Section 1.09 Shareholders Entitled to Vote..............................3
Section 1.10 Cumulative Voting..........................................4
Section 1.11 Proxies....................................................4
Section 1.12 Inspectors of Election.....................................4
ARTICLE TWO
DIRECTORS..................................................5
Section 2.01 Authority and Qualifications...............................5
Section 2.02 Number of Directors and Term of Office.....................5
Section 2.03 Election...................................................6
Section 2.04 Removal....................................................6
Section 2.05 Vacancies..................................................6
Section 2.06 Meetings...................................................7
Section 2.07 Notice of Meetings.........................................7
Section 2.08 Waiver of Notice...........................................8
Section 2.09 Quorum.....................................................8
Section 2.10 Executive Committee........................................8
Section 2.11 Compensation...............................................9
Section 2.12 By-Laws....................................................9
ARTICLE THREE
OFFICERS..................................................10
Section 3.01 Officers..................................................10
Section 3.02 Tenure of Office..........................................10
Section 3.03 Duties of the Chairman of the Board.......................10
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Section 3.04 Duties of the President...................................10
Section 3.05 Duties of the Vice Presidents.............................11
Section 3.06 Duties of the Secretary...................................11
Section 3.07 Duties of the Treasurer...................................11
ARTICLE FOUR
SHARES....................................................12
Section 4.01 Certificates..............................................12
Section 4.02 Transfers.................................................12
Section 4.03 Transfer Agents and Registrars............................13
Section 4.04 Lost, Wrongfully Taken or Destroyed Certificates..........13
Section 4.05 Uncertificated Shares.....................................14
ARTICLE FIVE
INDEMNIFICATION AND INSURANCE.............................14
Section 5.01 Indemnification...........................................14
Section 5.02 Court-Approved Indemnification............................15
Section 5.03 Indemnification for Expenses..............................16
Section 5.04 Determination Required....................................16
Section 5.05 Advances for Expenses.....................................17
Section 5.06 Article Five Not Exclusive................................18
Section 5.07 Insurance.................................................18
Section 5.08 Certain Definitions.......................................19
Section 5.09 Venue.....................................................20
ARTICLE SIX
MISCELLANEOUS.............................................20
Section 6.01 Amendments................................................20
Section 6.02 Action by Shareholders or Directors Without a Meeting.....20
Section 6.03 Fiscal Year...............................................20
ARTICLE SEVEN
SECTION 1701.831 OF THE OHIO REVISED CODE NOT APPLICABLE..21
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AMENDED AND RESTATED
CODE OF REGULATIONS
OF
MEDEX MEDICAL, 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 second Tuesday of April
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 a director; 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; or the holders of at
least 25% 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 notice of
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
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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 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.
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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
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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
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 a writing signed by such shareholder or appointed by a
verifiable communication authorized by such shareholder, but such writing or
communication 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
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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 one. Each
director shall be elected to serve until the next annual meeting of shareholders
and 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.
(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.
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SECTION 2.03 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 viva voce.
SECTION 2.04 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 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 2.05 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
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additional directors provided for, or in case the shareholders fail at any time
to elect the whole authorized number of directors.
SECTION 2.06 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 one of the directors. All meetings of directors
shall be held at the principal office of the corporation in Hilliard 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 2.07 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
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(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.
SECTION 2.08 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 2.09 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 2.10 EXECUTIVE COMMITTEE. The directors may create an
executive committee or any other committee of directors, to consist of not less
than one director, and may authorize the delegation to such executive committee
or other committees of any of the authority
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of the directors, however conferred, other than that of filling vacancies among
the directors or in the executive committee or in any other committee of the
directors.
Such executive committee or any other committee of directors shall
serve at the pleasure of the directors, shall act only in the intervals between
meetings of the directors, and shall be subject to the control and direction of
the directors. Such executive committee or other committee of directors may act
by a majority of its members at a meeting or by a writing or writings signed by
all of its members.
Any act or authorization of any act by the executive committee or any
other committee within the authority delegated to it shall be as effective for
all purposes as the act or authorization of the directors. No notice of a
meeting of the executive committee or of any other committee of directors shall
be required. A meeting of the executive committee or of any other committee of
directors may be called only by the president or by a member of such executive
or other committee of directors. Meetings of the executive committee or of any
other committee of directors may be held through any communications equipment if
all persons participating can hear each other and participation in such a
meeting shall constitute presence thereat.
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.
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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
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the president of the corporation. It shall be the duty of the
president to preside at all meetings of shareholders.
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
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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, an assistant secretary, 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 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
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(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 an "eligible guarantor institution" as defined in Rule
17Ad-15 under the Securities Exchange 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.
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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.
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
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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
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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 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.
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
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shareholders, 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 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 Franklin 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
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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 Franklin County, Ohio or the
court in which such action 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
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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.
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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 Franklin 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 Franklin County, Ohio in any such action, suit or proceeding.
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.
SECTION 6.03 FISCAL YEAR. The fiscal year of the corporation shall
begin on January 1 and end on December 31 in each year.
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ARTICLE SEVEN
SECTION 1701.831 OF THE OHIO REVISED CODE NOT APPLICABLE
Section 1701.831 of the Ohio Revised Code does not apply to control
share acquisitions of shares of the corporation.
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