UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


FORM 8-K


CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
   
Date of Report (Date of earliest event reported):  March 13, 2009
 


M/I HOMES, INC.
(Exact name of registrant as specified in its charter)
         
Ohio
 
1-12434
 
31-1210837
(State or Other Jurisdiction
 
(Commission
 
(I.R.S. Employer
of Incorporation)
 
File Number)
 
Identification No.)

3 Easton Oval, Suite 500, Columbus, Ohio
43219
 
(Address of Principal Executive Offices)
(Zip Code)
 

      (614) 418-8000
(Telephone Number)

N/A
(Former name or former address, if changed since last report)


Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a.12)
 Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 
 
Item 8.01 – Other Events.

On January 15, 2009, the Board of Directors of M/I Homes, Inc. (the “Company”) approved, subject to adoption by the Company’s shareholders, an amendment (the “NOL Protective Amendment”) to the Company’s Amended and Restated Code of Regulations (the “Regulations”) to impose certain restrictions on the transfer of the Company’s common shares, par value $.01 per share (the “Common Shares”), in order to preserve the tax treatment of the Company’s net operating losses and built-in losses (collectively, the “NOLs”). The Company’s shareholders adopted the NOL Protective Amendment at a special meeting of the shareholders of the Company held on March 13, 2009 (the “Special Meeting”). The NOL Protective Amendment and the transfer restrictions imposed therein became effective immediately upon the adoption of the NOL Protective Amendment by the Company’s shareholders at the Special Meeting.
 
The purpose of the NOL Protective Amendment is to assist the Company in protecting the long-term value to the Company of its NOLs by limiting direct and indirect transfers of its Common Shares that would affect the percentage of shares that are treated under the relevant tax laws as being owned by 5-percent shareholders. The transfer restrictions imposed by the NOL Protective Amendment generally would restrict any direct or indirect transfer if the effect would be to:  (i) increase the direct or indirect ownership of our shares by any person or group of persons from less than 5% to 5% or more of our Common Shares; or (ii) increase the percentage of our Common Shares owned directly or indirectly by a person or group of persons owning or deemed to own 5% or more of our Common Shares. The transfer restrictions imposed by the NOL Protective Amendment would not practically restrict transfers, from the standpoint of the transferor, made by less than 5-percent shareholders, regardless of whether their shares are held of record or in “street name” and regardless of the person or group of persons to whom the less than 5-percent shareholders transfer their shares.
 
The description of the NOL Protective Amendment provided above is qualified in its entirety by reference to the NOL Protective Amendment. A copy of the NOL Protective Amendment is filed as Exhibit 3.1 to this Form 8-K and is incorporated herein by reference.

ITEM 9.01                      FINANCIAL STATEMENTS AND EXHIBITS

(d) Exhibits

Exhibit No .
 
Description of Documents
3.1
 
NOL Protective Amendment to the Amended and Restated Code of Regulations


 
 

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date:  March 13, 2009

M/I Homes, Inc.

   By:
/s/Ann Marie W. Hunker
 
Ann Marie W. Hunker
 
Vice President, Controller
 
and Chief Accounting Officer



Index to Exhibits

Exhibit No .
 
Description of Documents
3.1
 
NOL Protective Amendment to the Amended and Restated Code of Regulations


Exhibit 3.1

AMENDMENT TO AMENDED AND RESTATED CODE OF REGULATIONS

The following Amendment to the Amended and Restated Code of Regulations of M/I Homes, Inc. (the “Regulations”) amends the Regulations by deleting Article II(f) of the Regulations in its entirety and replacing such Article II(f) with a new Article II(f):
 
(f)                  Restrictions on Transfer .
 
 
(1)   Securities Act Restrictions on Transfer .  A restriction on the hypothecation, transfer or registration of transfer of shares of the corporation may be imposed either by the Articles of Incorporation or by this Code of Regulations or by an agreement among any number of shareholders or among such holders and the corporation or by resolution of the Board determining that restriction is reasonably necessary for compliance with the Securities Act of 1933, as amended.  No restriction so imposed shall be binding with respect to the securities issued prior to the adoption of the restriction unless the holders of such securities are parties to an agreement or voted in favor of the restriction.  Unless noted conspicuously on the share certificate, a restriction, even though permitted by this Article II(f)(1), is ineffective except against a person with actual knowledge of the restriction.
 
 
(2)   Section 382 Restrictions on Transfer .
 
 
(A)      Definitions .    As used in this Article II(f)(2), the following capitalized terms have the following meanings when used herein with initial capital letters (and any references to any portions of Treasury Regulation § 1.382-2T shall include any successor provisions):
 
 
“5-percent Transaction” means any Transfer described in clause (i) or (ii) of Article II(f)(2)(B).
 
 
“5-percent Shareholder” means a Person or group of Persons that is a “5-percent shareholder” of the corporation pursuant to Treasury Regulation § 1.382-2T(g).
 
 
“Agent” has the meaning set forth in Article II(f)(2)(E).
 
 
“Board of Directors” or “Board” means the board of directors of the corporation.
 
 
“Common Shares” means any interest in the Common Shares, par value $0.01 per share, of the corporation that would be treated as “stock” of the corporation pursuant to Treasury Regulation § 1.382-2T(f)(18).
 
 
“Code” means the United States Internal Revenue Code of 1986, as amended from time to time, and the rulings issued thereunder.
 
 
“Corporation Security” or “Corporation Securities” means (i) Common Shares, (ii) preferred shares issued by the corporation (other than preferred shares described in Section 1504(a)(4) of the Code), (iii) warrants, rights or options (including options within the meaning of Treasury Regulation § 1.382-2T(h)(4)(v)) to purchase Securities of the corporation and (iv) any Shares.
 
 
“Effective Date” means the date the shareholders approved the effectiveness of this Article II(f)(2).
 
 
“Excess Securities” has the meaning given such term in Article II(f)(2)(D).
 
 
“Expiration Date” means the earlier of (i) the amendment or repeal of Section 382 of the Code or any successor statute if, in such event, the Board of Directors determines that this Article II(f)(2) is no longer necessary for the preservation of Tax Benefits, (ii) the beginning of a taxable year of the corporation to which the Board of Directors determines that no Tax Benefits may be carried forward or (iii) such date as the Board of Directors shall fix in accordance with Article II(f)(2)(L).
 
 
“Percentage Share Ownership” means the percentage Share Ownership interest of any Person or group (as the context may require) for purposes of Section 382 of the Code as determined in accordance with the Treasury Regulation § 1.382-2T(g), (h), (j) and (k) or any successor provision.
 
 
“Person” means any individual, firm, corporation or other legal entity, and includes any successor (by merger or otherwise) of such entity; provided , however , that a Person shall not mean a Public Group.
 
 
“Prohibited Distributions” means any and all dividends or other distributions paid by the corporation with respect to any Excess Securities received by a Purported Transferee.
 
 
“Prohibited Transfer” means any Transfer or purported Transfer of Corporation Securities to the extent that such Transfer is prohibited and/or void under this Article II(f)(2).
 
 
“Public Group” has the meaning set forth in Treasury Regulation § 1.382-2T(f)(13).
 
 
“Purported Transferee” has the meaning set forth in Article II(f)(2)(D).
 
 
“Securities” and “Security” each has the meaning set forth in Article II(f)(2)(G).
 
 
“Shares” means any interest that would be treated as “stock” of the corporation pursuant to Treasury Regulation § 1.382-2T(f)(18).
 
 
“Share Ownership” means any direct or indirect ownership of Shares, including any ownership by virtue of application of constructive ownership rules, with such direct, indirect and constructive ownership determined under the provisions of Section 382 of the Code and the Treasury Regulations promulgated thereunder.
 
 
“Tax Benefits” means the net operating loss carryforwards, capital loss carryforwards, general business credit carryforwards, alternative minimum tax credit carryforwards and foreign tax credit carryforwards, as well as any loss or deduction attributable to a “net unrealized built-in loss” of the corporation or any direct or indirect subsidiary thereof, within the meaning of Section 382 of the Code.
 
 
“Transfer” means any direct or indirect sale, transfer, assignment, conveyance, pledge or other disposition or other action taken by a person, other than the corporation, that alters the Percentage Share Ownership of any Person or group. A Transfer also shall include the creation or grant of an option (including an option within the meaning of Treasury Regulation § 1.382-2T(h)(4)(v)). For the avoidance of doubt, a Transfer shall not include the creation or grant of an option by the corporation, nor shall a Transfer include the issuance of Shares by the corporation.
 
 
“Transferee” means any Person to whom Corporation Securities are Transferred.
 
 
“Treasury Regulations” means the regulations, including temporary regulations or any successor regulations promulgated under the Code, as amended from time to time.
 
 
(B)      Transfer and Ownership Restrictions .    In order to preserve the Tax Benefits, from and after the Effective Date of this Article II(f)(2), any attempted Transfer of Corporation Securities prior to the Expiration Date and any attempted Transfer of Corporation Securities pursuant to an agreement entered into prior to the Expiration Date, shall be prohibited and void ab initio to the extent that, as a result of such Transfer (or any series of Transfers of which such Transfer is a part), either (i) any Person or group of Persons would become a 5-percent Shareholder or (ii) the Percentage Share Ownership in the corporation of any 5-percent Shareholder would be increased.
 
 
(C)      Exceptions .    
 
 
(i)   Notwithstanding anything to the contrary herein, Transfers to a Public Group (including a new Public Group created under Treasury Regulation § 1.382-2T(j)(3)(i)) shall be permitted.
 
 
(ii)   The restrictions set forth in Article II(f)(2)(B) shall not apply to an attempted Transfer that is a 5-percent Transaction if the transferor or the Transferee obtains the written approval of the Board of Directors. As a condition to granting its approval pursuant to this Article II(f)(2)(C), the Board of Directors may, in its discretion, require (at the expense of the transferor and/or Transferee) an opinion of counsel selected by the Board of Directors that the Transfer shall not result in the application of any Section 382 of the Code limitation on the use of the Tax Benefits; provided that the Board may grant such approval notwithstanding the effect of such approval on the Tax Benefits if it determines that the approval is in or not opposed to the best interests of the corporation. The Board of Directors may impose any conditions that it deems reasonable and appropriate in connection with such approval, including, without limitation, restrictions on the ability of any Transferee to Transfer Corporation Securities acquired through a Transfer. Approvals of the Board of Directors hereunder may be given prospectively or retroactively. Nothing in this Article II(f)(2)(C) shall be construed to limit or restrict the Board of Directors in the exercise of its fiduciary duties under applicable law.
 
 
(D)      Excess Securities .    
 
 
(i)   No employee or agent of the corporation shall record any Prohibited Transfer, and the purported Transferee of such a Prohibited Transfer (the “Purported Transferee” ) shall not be recognized as a shareholder of the corporation for any purpose whatsoever in respect of the Corporation Securities which are the subject of the Prohibited Transfer (the “Excess Securities” ). Until the Excess Securities are acquired by another Person in a Transfer that is not a Prohibited Transfer, the Purported Transferee shall not be entitled with respect to such Excess Securities to any rights of shareholders of the corporation, including, without limitation, the right to vote such Excess Securities and to receive dividends or distributions, whether liquidating or otherwise, in respect thereof, if any, and the Excess Securities shall be deemed to remain with the transferor unless and until the Excess Securities are transferred to the Agent pursuant to Article II(f)(2)(E) or until an approval is obtained under Article II(f)(2)(C) or until the Excess Securities are acquired by another Person in a transaction that is not a Prohibited Transfer. After the Excess Securities have been acquired in a Transfer that is not a Prohibited Transfer, the Corporation Securities shall cease to be Excess Securities. For this purpose, any Transfer of Excess Securities not in accordance with the provisions of this Article II(f)(2)(D) or Article II(f)(2)(E) shall also be a Prohibited Transfer.
 
 
(ii)   The corporation may require as a condition to the registration of the Transfer of any Corporation Securities or the payment of any distribution on any Corporation Securities that the proposed Transferee or payee furnish to the corporation all information reasonably requested by the corporation with respect to its direct or indirect ownership interests in such Corporation Securities. The corporation may make such arrangements or issue such instructions to its share transfer agent as may be determined by the Board of Directors to be necessary or advisable to implement this Article II(f)(2), including, without limitation, authorizing such transfer agent to require an affidavit from a Purported Transferee regarding such Person’s actual and constructive ownership of Shares and other evidence that a Transfer will not be prohibited by this Article II(f)(2) as a condition to registering any Transfer.
 
 
(E)      Transfer to Agent .    If the Board of Directors determines that a Transfer of Corporation Securities constitutes a Prohibited Transfer then, upon written demand by the corporation sent within thirty days of the date on which the Board of Directors determines that the attempted Transfer would result in Excess Securities, the Purported Transferee shall transfer or cause to be transferred any certificate or other evidence of ownership of the Excess Securities within the Purported Transferee’s possession or control, together with any Prohibited Distributions, to an agent designated by the Board of Directors (the “Agent” ). The Agent shall thereupon sell to a buyer or buyers, which may include the corporation, the Excess Securities transferred to it in one or more arm’s-length transactions (on the public securities market on which such Excess Securities are traded, if possible, or otherwise privately); provided, however , that any such sale must not constitute a Prohibited Transfer and provided, further, that the Agent shall effect such sale or sales in an orderly fashion and shall not be required to effect any such sale within any specific time frame if, in the Agent’s discretion, such sale or sales would disrupt the market for the Corporation Securities or otherwise would adversely affect the value of the Corporation Securities. If the Purported Transferee has resold the Excess Securities before receiving the corporation’s demand to surrender Excess Securities to the Agent, the Purported Transferee shall be deemed to have sold the Excess Securities for the Agent, and shall be required to transfer to the Agent any Prohibited Distributions and proceeds of such sale, except to the extent that the corporation grants written permission to the Purported Transferee to retain a portion of such sales proceeds not exceeding the amount that the Purported Transferee would have received from the Agent pursuant to Article II(f)(2)(F) if the Agent rather than the Purported Transferee had resold the Excess Securities.
 
 
(F)       Application of Proceeds and Prohibited Distributions .    The Agent shall apply any proceeds of a sale by it of Excess Securities and, if the Purported Transferee has previously resold the Excess Securities, any amounts received by it from a Purported Transferee, together, in either case, with any Prohibited Distributions, as follows: (i) first, such amounts shall be paid to the Agent to the extent necessary to cover its costs and expenses incurred in connection with its duties hereunder; (ii) second, any remaining amounts shall be paid to the Purported Transferee, up to the amount paid by the Purported Transferee for the Excess Securities (or the fair market value at the time of the Transfer, in the event the purported Transfer of the Excess Securities was, in whole or in part, a gift, inheritance or similar Transfer) which amount shall be determined at the discretion of the Board of Directors; and (iii) third, any remaining amounts shall be paid to one or more organizations qualifying under Section 501(c)(3) of the Code (or any comparable successor provision) selected by the Board of Directors. The Purported Transferee of Excess Securities shall have no claim, cause of action or any other recourse whatsoever against any transferor of Excess Securities. The Purported Transferee’s sole right with respect to such Shares shall be limited to the amount payable to the Purported Transferee pursuant to this Article II(f)(2)(F). In no event shall the proceeds of any sale of Excess Securities pursuant to this Article II(f)(2)(F) inure to the benefit of the corporation or the Agent, except to the extent used to cover costs and expenses incurred by the Agent in performing its duties hereunder.
 
 
(G)      Modification of Remedies for Certain Indirect Transfers .    In the event of any Transfer which does not involve a transfer of securities of the corporation within the meaning of Ohio law ( “Securities,” and individually, a “Security” ) but which would cause a 5-percent Shareholder to violate a restriction on Transfers provided for in this Article II(f)(2), the application of Article II(f)(2)(E) and Article II(f)(2)(F) shall be modified as described in this Article II(f)(2)(G). In such case, no such 5-percent Shareholder shall be required to dispose of any interest that is not a Security, but such 5-percent Shareholder and/or any Person whose ownership of Securities is attributed to such 5-percent Shareholder shall be deemed to have disposed of and shall be required to dispose of sufficient Securities (which Securities shall be disposed of in the inverse order in which they were acquired) to cause such 5-percent Shareholder, following such disposition, not to be in violation of this Article II(f)(2). Such disposition shall be deemed to occur simultaneously with the Transfer giving rise to the application of this provision, and such number of Securities that are deemed to be disposed of shall be considered Excess Securities and shall be disposed of through the Agent as provided in Article II(f)(2)(E) and Article II(f)(2)(F), except that the maximum aggregate amount payable either to such 5-percent Shareholder, or to such other Person that was the direct holder of such Excess Securities, in connection with such sale shall be the fair market value of such Excess Securities at the time of the purported Transfer. All expenses incurred by the Agent in disposing of such Excess Securities shall be paid out of any amounts due such 5-percent Shareholder or such other Person. The purpose of this Article II(f)(2)(G) is to extend the restrictions in Article II(f)(2)(B) and Article II(f)(2)(E) to situations in which there is a 5-percent Transaction without a direct Transfer of Securities, and this Article II(f)(2)(G), along with the other provisions of this Article II(f)(2), shall be interpreted to produce the same results, with differences as the context requires, as a direct Transfer of Corporation Securities.
 
 
(H)       Legal Proceedings; Prompt Enforcement .    If the Purported Transferee fails to surrender the Excess Securities or the proceeds of a sale thereof to the Agent within thirty days from the date on which the corporation makes a written demand pursuant to Article II(f)(2)(E) (whether or not made within the time specified in Article II(f)(2)(E)), then the corporation shall be entitled to take all actions which it believes are appropriate to enforce the provisions hereof, including the institution of legal proceedings to compel the surrender. Nothing in this Article II(f)(2)(H) shall (i) be deemed inconsistent with any Transfer of the Excess Securities provided in this Article II(f)(2) being void ab initio , (ii) preclude the corporation in its discretion from immediately bringing legal proceedings without a prior demand or (iii) cause any failure of the corporation to act within the time periods set forth in Article II(f)(2)(E) to constitute a waiver or loss of any right of the corporation under this Article II(f)(2). The Board of Directors may authorize such additional actions as it deems advisable to give effect to the provisions of this Article II(f)(2).
 
 
(I)      Liability .    To the fullest extent permitted by law, any shareholder subject to the provisions of this Article II(f)(2) who knowingly violates the provisions of this Article II(f)(2) and any Persons controlling, controlled by or under common control with such shareholder shall be jointly and severally liable to the corporation for, and shall indemnify and hold the corporation harmless against, any and all damages suffered as a result of such violation, including but not limited to damages resulting from a reduction in, or elimination of, the corporation’s ability to utilize its Tax Benefits, and attorneys’ and auditors’ fees incurred in connection with such violation.
 
 
(J)      Obligation to Provide Information .    As a condition to the registration of the Transfer of any Shares, any Person who is a beneficial, legal or record holder of Shares, and any proposed Transferee and any Person controlling, controlled by or under common control with the proposed Transferee, shall provide such information as the corporation may request from time to time in order to determine compliance with this Article II(f)(2) or the status of the Tax Benefits of the corporation.
 
 
(K)      Legends .    The Board of Directors may require that any certificates issued by the corporation evidencing ownership of Shares that are subject to the restrictions on transfer and ownership contained in this Article II(f)(2) bear the following legend:
 
 
“THE AMENDED AND RESTATED CODE OF REGULATIONS, AS AMENDED (THE “CODE OF REGULATIONS”), OF THE CORPORATION CONTAINS RESTRICTIONS PROHIBITING THE TRANSFER (AS DEFINED IN THE CODE OF REGULATIONS) OF  SHARES OF THE CORPORATION (INCLUDING THE CREATION OR GRANT OF CERTAIN OPTIONS, RIGHTS AND WARRANTS) WITHOUT THE PRIOR AUTHORIZATION OF THE BOARD OF DIRECTORS OF THE CORPORATION (THE “BOARD OF DIRECTORS”) IF SUCH TRANSFER AFFECTS THE PERCENTAGE OF SHARES OF THE CORPORATION (WITHIN THE MEANING OF SECTION 382 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) AND THE TREASURY REGULATIONS PROMULGATED THEREUNDER), THAT IS TREATED AS OWNED BY A FIVE PERCENT SHAREHOLDER UNDER THE CODE AND SUCH REGULATIONS. IF THE TRANSFER RESTRICTIONS ARE VIOLATED, THEN THE TRANSFER WILL BE VOID AB INITIO AND THE PURPORTED TRANSFEREE OF THE SHARES WILL BE REQUIRED TO TRANSFER EXCESS SECURITIES (AS DEFINED IN THE CODE OF REGULATIONS) TO THE CORPORATION’S AGENT. IN THE EVENT OF A TRANSFER WHICH DOES NOT INVOLVE SECURITIES OF THE CORPORATION WITHIN THE MEANING OF THE LAW OF THE STATE OF OHIO (“SECURITIES”) BUT WHICH WOULD VIOLATE THE TRANSFER RESTRICTIONS, THE PURPORTED TRANSFEREE (OR THE RECORD OWNER) OF THE SECURITIES WILL BE REQUIRED TO TRANSFER SUFFICIENT SECURITIES PURSUANT TO THE TERMS PROVIDED FOR IN THE CODE OF REGULATIONS TO CAUSE THE FIVE PERCENT SHAREHOLDER TO NO LONGER BE IN VIOLATION OF THE TRANSFER RESTRICTIONS. THE CORPORATION WILL FURNISH WITHOUT CHARGE TO THE HOLDER OF RECORD OF THIS CERTIFICATE A COPY OF THE CODE OF REGULATIONS, CONTAINING THE ABOVE-REFERENCED TRANSFER RESTRICTIONS, UPON WRITTEN REQUEST TO THE CORPORATION AT ITS PRINCIPAL PLACE OF BUSINESS WITHIN FIVE DAYS OF A REQUEST THEREFOR.”
 
 
The Board of Directors may also require that any certificates issued by the corporation evidencing ownership of Shares that are subject to conditions imposed by the Board of Directors under Article II(f)(2)(C) also bear a conspicuous legend referencing the applicable restrictions.
 
 
(L)      Authority of Board of Directors .    
 
 
(i)   The Board of Directors shall have the power to determine all matters necessary for assessing compliance with this Article II(f)(2), including, without limitation, (a) the identification of 5-percent Shareholders, (b) whether a Transfer is a 5-percent Transaction or a Prohibited Transfer, (c) the Percentage Share Ownership in the corporation of any 5-percent Shareholder, (d) whether an instrument constitutes a Corporation Security, (e) the amount (or fair market value) due to a Purported Transferee pursuant to Article II(f)(2)(F) and (f) any other matters which the Board of Directors determines to be relevant; and the good faith determination of the Board of Directors on such matters shall be conclusive and binding for all the purposes of this Article II(f)(2). In addition, the Board of Directors may, to the extent permitted by law, from time to time establish, modify, amend or rescind by-laws and procedures of the corporation not inconsistent with the provisions of this Article II(f)(2) for purposes of determining whether any Transfer of Corporation Securities would jeopardize the corporation’s ability to preserve and use the Tax Benefits and for the orderly application, administration and implementation of this Article II(f)(2).
 
 
(ii)   Nothing contained in this Article II(f)(2) shall limit the authority of the Board of Directors to take such other action to the extent permitted by law as it deems necessary or advisable to protect the corporation and its shareholders in preserving the Tax Benefits, including without limitation, fixing the Expiration Date. Shareholders of the corporation shall be notified of such determination through a filing with the Securities and Exchange Commission or such other method of notice as the Secretary of the corporation shall deem appropriate.
 
 
(iii)   In the case of an ambiguity in the application of any of the provisions of this Article II(f)(2), including any definition used herein, the Board of Directors shall have the power to determine the application of such provisions with respect to any situation based on its reasonable belief, understanding or knowledge of the circumstances. In the event this Article II(f)(2) requires an action by the Board of Directors but fails to provide specific guidance with respect to such action, the Board of Directors shall have the power to determine the action to be taken so long as such action is not contrary to the provisions of this Article II(f)(2). All such actions, calculations, interpretations and determinations which are done or made by the Board of Directors in good faith shall be conclusive and binding on the corporation, the Agent and all other parties for all other purposes of this Article II(f)(2). The Board of Directors may delegate all or any portion of its duties and powers under this Article II(f)(2) to a committee of the Board of Directors as it deems necessary or advisable and, to the fullest extent permitted by law, may exercise the authority granted by this Article II(f)(2) through duly authorized officers or agents of the corporation. Nothing in this Article II(f)(2) shall be construed to limit or restrict the Board of Directors in the exercise of its fiduciary duties under applicable law.
 
 
(M)      Reliance .    To the fullest extent permitted by law, the corporation and the members of the Board of Directors shall be fully protected in relying in good faith upon the information, opinions, reports or statements of the chief executive officer, the chief financial officer, the chief accounting officer or the corporate controller of the corporation or of the corporation’s legal counsel, independent auditors, transfer agent, investment bankers or other employees and agents in making the determinations and findings contemplated by this Article II(f)(2), and the members of the Board of Directors shall not be liable in damages for any action that they take or fail to take under this Article II(f)(2), except as provided Section 1701.59(D) of the Ohio Revised Code, as amended from time to time. For purposes of determining the existence and identity of, and the amount of any Corporation Securities owned by, any shareholder, the corporation is entitled to rely on the existence and absence of filings of Schedule 13D or 13G under the Securities Exchange Act of 1934, as amended (or similar filings), as of any date, subject to its actual knowledge of the ownership of Corporation Securities.
 
 
(N)      Benefits of this Article II(f)(2) .    Nothing in this Article II(f)(2) shall be construed to give to any Person other than the corporation or the Agent any legal or equitable right, remedy or claim under this Article II(f)(2). This Article II(f)(2) shall be for the sole and exclusive benefit of the corporation and the Agent.
 
 
(O)      Severability .    The purpose of this Article II(f)(2) is to facilitate the corporation’s ability to maintain or preserve its Tax Benefits. If any provision of this Article II(f)(2) or the application of any such provision to any Person or under any circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Article II(f)(2).
 
 
(P)      Waiver .    With regard to any power, remedy or right provided herein or otherwise available to the corporation or the Agent under this Article II(f)(2), (i) no waiver will be effective unless expressly contained in a writing signed by the waiving party; and (ii) no alteration, modification or impairment will be implied by reason of any previous waiver, extension of time, delay or omission in exercise or other indulgence.