Exhibit 3
AMENDED AND RESTATED CODE OF
REGULATIONS
OF
LSI INDUSTRIES
INC.
ARTICLE
I
FISCAL
YEAR
Unless
otherwise designated by resolution of the Board of Directors, the fiscal year of
the Corporation shall commence on the 1st day of July of each year, or be such
other period as the Board of Directors may designate by resolution.
ARTICLE
II
SHAREHOLDERS
Section
1.
Annual
Meetings
. The Annual Meeting of the Shareholders of this
Corporation, for the election of eligible candidates to the Board of Directors,
the consideration of financial statements and other reports, and the transaction
of such other business as may properly be brought before such meeting, shall be
held at such time as determined by the Board of Directors each
year. Upon due notice, there may also be considered and acted upon at
an Annual Meeting any matter which could properly be considered and acted upon
at a Special Meeting in which case and for which purpose the Annual Meeting
shall also be considered as, and shall be a Special Meeting. In the
event the Annual Meeting is not held or if Directors are not elected thereat, a
Special Meeting may be called and held for that purpose.
Section
2.
Special
Meetings
. Special Meetings of the Shareholders may be held on
any business day when called by the Chairman of the Board, the President, a
majority of Directors, or persons holding 50% (the “Requisite Percentage”) of
all shares outstanding and entitled to vote. The notice for any
Special Meeting shall state the purpose or purposes of the Special Meeting, and
that only those matters that are specified in the notice thereof may be brought
before a Special Meeting.
(a)
Requirements for
Shareholders Calling Special Meeting or Proposing Business at Special
Meetings
. Shareholders not the Chairman of the Board, the
President or a majority of Directors of the Corporation shall not be permitted
to demand a Special Meeting or propose business to be brought before a Special
Meeting except in accordance with this ARTICLE II Section 2(a).
1.
Record
Date
. No Shareholder may demand a Special Meeting pursuant to
this ARTICLE II Section 2 unless such Shareholder has previously submitted a
written request that the Board of Directors fix a record date to determine which
Shareholders are entitled to demand a Special Meeting. The demand
shall be in proper form and delivered to the Secretary of the
Corporation.
2.
Proper
Form
. For the purposes of this ARTICLE II Section 2, a request
to set a record date shall set forth:
A. As
to each Requesting Shareholder, as defined below, all information required to be
included in a written notice of a Shareholder Proposal pursuant to ARTICLE II
Section 11(a) of these Regulations, except that for the purposes of this ARTICLE
II Section 2(a) the term “Requesting Shareholder” shall be substituted for the
term “Proponent” in all places it appears in ARTICLE II Section
11(a).
B. As
to the purpose or purposes of requesting the Special Meeting, (i) a reasonably
brief description of the purpose or purposes of the Special Meeting and the
business proposed; (ii) the reasons for conducting such business and any
material interest in such business; and (iii) a reasonably detailed description
of all agreements, arrangements and understandings between or among any of the
Requesting Shareholders or between or among any Requesting Shareholder and any
other person or entity (including their names) in connection with the request
for the Special Meeting or the business proposed.
C. For
purposes of this ARTICLE II Section 2(a), the term “Requesting Shareholder”
shall mean (i) the Shareholder making the request; (ii) the beneficial owner or
owners, if different, on whose behalf such request is made; and (iii) any
Shareholder Associated Person (as defined in ARTICLE II Section
11(b)).
3.
Demand
. Only
Shareholders beneficially owning the Requisite Percentage on the record date
shall be entitled to demand a Special Meeting of the Shareholders pursuant to
this ARTICLE II Section 2(a). To be timely, a Shareholder’s demand to
call a Special Meeting must be received by the Corporation not later than the
60
th
day following the record date. To be in proper form for purposes of
this ARTICLE II Section 2(a), a demand to call a Special Meeting shall set forth
(i) the business proposed; (ii) the text of the proposal or business (including,
but not limited to the text of any proposed resolutions); and (iii) with respect
to any Shareholder submitting a demand (except for any Shareholder that has
provided such demand in response to a solicitation made pursuant to, and in
accordance with, Section 14(a) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) the information required to be provided pursuant to
this ARTICLE II Section 2(a) of a Requesting
Shareholder. Notwithstanding anything in these Regulations to the
contrary, the Board of Directors may submit its own proposals for consideration
at such a Special Meeting. The Board of Directors shall provide
written notice of such Special Meeting to the Shareholders in accordance with
ARTICLE II Section 4.
4.
Improper
Submission
. A written demand from a Shareholder is improper if
(i) it does not comply with this ARTICLE II Section 2(a); (ii) it proposes
business that is not a proper subject for Shareholder action under applicable
law; (iii) it includes a proposal that did not appear on the written request
that resulted in the determination of the record date; or (iv) it includes
a
proposal
that has been presented at the most recent Annual Meeting or at any Special
Meeting held within the preceding one year period.
5.
Incorrect
Information
. The Requesting Shareholder or any Shareholder
that submits a demand to call a Special Meeting shall further update and
supplement the information previously provided to the Corporation in connection
with such request or demand, if necessary, so that the information provided or
required to be provided in such request or demand pursuant to this ARTICLE II
Section 2(a) shall be true and correct as of the record date for the Special
Meeting and as of the date that is ten business days prior to the meeting or any
adjournment or postponement thereof, and such update and supplement shall be
received by the Corporation not later than five business days after the record
date for the Special Meeting (in the case of the update and supplement required
to be made as of the record date), and not later than eight business days prior
to the date for the meeting, if practicable (or, if not practicable, the first
practicable date prior to) any adjournment or postponement thereof (in the case
of the update and supplement required to be made as of ten business days prior
to the Special Meeting or any adjournment or postponement
thereof). Notwithstanding anything in these Regulations to the
contrary, no Special Meeting pursuant to this ARTICLE II Section 2(a) may be
called except in accordance with this ARTICLE II Section 2(a). If the
Board of Directors shall determine that any request to fix a record date or
demand a Special Meeting was not properly made in accordance with this ARTICLE
II Section 2(a) or shall determine that the Requesting Shareholders or
Shareholders submitting a demand for a Special Meeting have not otherwise
complied with this ARTICLE II Section 2(a), then the Board of Directors shall
not be required to fix a record date or to call and hold the Special
Meeting. In addition to the requirements of this ARTICLE II Section
2(a), each Shareholder shall comply with all requirements of applicable law,
including all requirements of the Exchange Act, with respect to any request to
fix a record date or demand a Special Meeting.
Section
3.
Place of
Meetings
. Any meeting of Shareholders may be held at such
place within or without the State of Ohio as may be designated in the notice of
said meeting.
Section
4.
Notice of Meeting and Waiver
of Notice
.
(a)
Notice
. Written
notice of the time, place and purposes of any meeting of Shareholders shall be
given to each Shareholder entitled thereto not less than seven days nor more
than 60 days before the date fixed for the meeting and as prescribed by
law. Such notice shall be given either by personal delivery, mail,
facsimile transmission or, to the extent permitted by law, electronically to
each Shareholder entitled to notice of or to vote at such meeting. If
such notice is mailed, it shall be directed, postage prepaid, to the
Shareholders at their respective addresses as they appear upon the records of
the Corporation, and notice shall be deemed to have been given on the day so
mailed. If any meeting is adjourned to another time or place, no
notice as to such adjourned meeting need be given other than by announcement at
the meeting at which such an adjournment
is
taken. No business shall be transacted at any such adjourned meeting
except as might have been lawfully transacted at the meeting at which such
adjournment was taken.
(b)
Notice to Joint
Owners
. All notices with respect to any shares to which
persons are entitled by joint or common ownership may be given to that one of
such persons who is named first upon the books of this Corporation, and notice
so given shall be sufficient notice to all the holders of such
shares.
(c)
Waiver
. Notice
of any meeting, however, may be waived in writing by any Shareholder either
before or after any meeting of Shareholders, or by attendance at such meeting
without protest to the commencement thereof.
Section
5.
Shareholders Entitled to
Notice and to Vote
. If a record date shall not be fixed or the
books of the Corporation shall not be closed against transfers of shares
pursuant to statutory authority, the record date for the determination of
Shareholders entitled to notice of or to vote at any meeting of Shareholders
shall be the close of business on the 20
th
day
prior to the date of the meeting and only Shareholders of record at such record
date shall be entitled to notice of and to vote at such meeting. Such
record date shall continue to be the record date for all adjournments of such
meeting unless a new record date shall be fixed and notice thereof and of the
date of the adjourned meeting be given to all Shareholders entitled to notice in
accordance with the new record date so fixed.
Section
6.
Quorum
. At
any meeting of Shareholders, the holders of shares entitling them to exercise a
majority of the voting power of the Corporation, present in person or by proxy,
shall constitute a quorum for such meeting; provided, however, that no action
required by law, the Articles, or these Regulations to be authorized or taken by
the holders of a designated proportion of the shares of the Corporation may be
authorized or taken by a lesser proportion. The Shareholders present
in person or by proxy, whether or not a quorum be present, may adjourn the
meeting from time to time without notice other than by announcement at the
meeting.
Section
7.
Organization of
Meetings
.
(a)
Presiding
Officer
. The Chairman of the Board, or in his absence, the
President, or in the absence of both of them, a Vice President of the
Corporation, shall call all meetings of the Shareholders to order and shall act
as Chairman thereof; if all are absent, the Shareholders shall elect a
Chairman.
(b)
Minutes
. The
Secretary of the Corporation, or, in his absence, an Assistant Secretary, or, in
the absence of both, a person appointed by the Chairman of the meeting, shall
act as Secretary of the meeting and shall keep and make a record of the
proceedings thereat.
Section
8.
Order of
Business
. The order of business at all meetings of the
Shareholders, unless waived or otherwise changed by the Chairman of the meeting
or the Board of Directors, shall be as follows:
1. Call
meeting to order.
2. Selection
of Chairman and/or Secretary, if necessary.
3. Proof
of notice of meeting and presentment of affidavit thereof.
4. Roll
call, including filing of proxies with Secretary.
5. Upon
appropriate demand, appointment of inspectors of election.
6. Reading,
correction and approval of previously unapproved minutes.
7. Reports
of officers and committees.
8. If
Annual Meeting, or meeting called for that purpose, election of
Directors.
9. Unfinished
business, if adjourned meeting.
10. Consideration
in sequence of all other matters set forth in the call for and written notice of
the meeting.
11. Any
new business not including the election of Directors other than that set forth
in the notice of the meeting which shall have been submitted to the Corporation
in accordance with the terms and conditions of ARTICLE II Section 11 of these
Regulations. The provisions of ARTICLE III shall govern the
procedures for Shareholder nominations of Directors.
12. Adjournment.
Section
9.
Voting
. Except
as provided by statute or in the Articles, every Shareholder entitled to vote
shall be entitled to cast one vote on each proposal submitted to the meeting for
each share held of record by him on the record date for the determination of the
Shareholders entitled to vote at the meeting. At any meeting at which
a quorum is present, all questions and business which may come before the
meeting shall be determined by a majority of votes cast, except when a greater
proportion is required by law, the Articles, or these Regulations.
Section
10.
Proxies
. A
person who is entitled to attend a Shareholders’ meeting, to vote thereat, or to
execute consents, waivers and releases, may be represented at such meeting or
vote thereat, and execute consents, waivers, and releases and exercise any of
his rights, by proxy or proxies appointed by a writing signed by such person, or
by his duly authorized attorney,
which may
be transmitted physically, by facsimile or by other electronic medium, as
provided by the laws of the State of Ohio.
Section
11.
Shareholder
Proposals
.
(a) No
proposal for a Shareholder vote shall be submitted by a Shareholder (a
“Shareholder Proposal”) to the Corporation’s Shareholders unless the Shareholder
submitting such Shareholder Proposal (the “Proponent”) shall have filed with the
Secretary of the Corporation at least 90 and no more than 120 days prior to such
meeting of Shareholders (or, with respect to a Special Meeting the tenth day
following the day on which the public announcement of the date of such meeting
is first made by the Corporation) a written notice setting forth with
particularity (i) the names and business addresses of the Proponent and any
“Shareholder Associated Person,” as defined in subsection 11(b) of this ARTICLE
II Section 11, acting in concert with the Proponent; (ii) the names and
addresses of the Proponent and of any such Shareholder Associated Person, as
they appear on the Corporation’s books (if they so appear); (iii)(A) the class
and number of shares of stock of the Corporation which are, directly or
indirectly, owned beneficially and of record by each of the Proponent and by any
such Shareholder Associated Person; (B) any option, warrant, convertible
security, stock appreciation right, or similar right with an exercise or
conversion privilege or a settlement payment or mechanism at a price related to
any class of shares of stock of the Corporation or with a value derived in whole
or in part from the value of any class of shares of stock of the Corporation,
whether or not such instrument or right shall be subject to settlement in the
underlying class of capital stock of the Corporation or otherwise (a “Derivative
Instrument”) directly or indirectly owned beneficially by the Proponent and by
any such Shareholder Associated Person and any other direct or indirect
opportunity to profit or share in any profit derived from any increase or
decrease in the value of shares of the Corporation; (C) any proxy, contract,
arrangement, understanding, or relationship pursuant to which the Proponent and
any such Shareholder Associated Person has a right to vote any shares of any
security of the Corporation; (D) any short interest in any security of the
Corporation (for purposes of these Regulations an individual shall be deemed to
have a short interest in a security if such individual directly or indirectly,
through any contract, arrangement, understanding, relationship or otherwise, has
the opportunity to profit or share in any profit derived from any decrease in
the value of the subject security); (E) any rights to dividends on the shares of
stock of the Corporation owned beneficially by the Proponent and by any such
Shareholder Associated Person that are separated or separable from the
underlying shares of stock of the Corporation; (F) any proportionate interest in
shares of stock of the Corporation or Derivative Instruments held, directly or
indirectly, by a general or limited partnership in which the Proponent or any
such Shareholder Associated Person is a general partner or, directly or
indirectly, beneficially owns an interest in a general partner; and (G) any
performance–related fees (other than an asset-based fee) to which the Proponent
or any such Shareholder Associated Person is entitled to based on any increase
or decrease in the value of shares of stock of the Corporation or Derivative
Instruments, if any, as of the date of such notice, including without
limitation, any such interests held by members of the immediate family sharing
the same household as the Proponent or any such Shareholder Associated Person,
if any, or either of them, that would be required to be disclosed in a
proxy
statement
or other filings required to be made in connection with solicitation of proxies
for, as applicable, the proposal and/or for the election of directors in a
contested election pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder (which information shall be supplemented, as
necessary, by such Shareholder and by any such Shareholder Associated Person and
beneficial owner); (iv) a description of the Shareholder Proposal containing all
material information relating thereto along with any interest that such
Proponent and any such Shareholder Associated Person has in the Shareholder
Proposal and any benefits that the Proponent and any such Shareholder Associated
Person may derive from the outcome of any vote on the Shareholder Proposal; and
(v) such other information as the Board of Directors reasonably determines is
necessary or appropriate to enable the Board of Directors and Shareholders of
the Corporation to consider the Shareholder Proposal.
(b)
Shareholder Associated
Person
. For the purposes of this ARTICLE II Section 11 and
ARTICLE III Section 2 of these Regulations “Shareholder Associated Person” shall
mean (i) any person controlling, directly or indirectly, or acting in concert
with or having any contracts, plans, understandings or arrangements with respect
to the Corporation with, such Shareholder; (ii) any beneficial owner of a
Derivative Instrument or shares of stock of the Corporation owned of record or
beneficially by such Shareholder; and (iii) any person controlling, controlled
by or under common control with such Shareholder Associated Person.
(c)
Inaccurate
Information
. If information submitted pursuant to this ARTICLE
II Section 11 by any Shareholder proposing any business other than a nomination
for election to the Board of Directors shall be inaccurate or materially
misleading, such information may be deemed not to have been provided in
accordance with this ARTICLE II Section 11. Any Shareholder proposing
any business other than a nomination for election to the Board of Directors
shall provide (i) written verification, satisfactory, in the discretion of the
Board of Directors or any authorized officer of the Corporation, to demonstrate
the accuracy of any information submitted by the Shareholder pursuant to this
ARTICLE II Section 11; and (ii) a written update of any information previously
submitted by the Shareholder pursuant to this ARTICLE II Section 11 as of an
earlier date so that the information provided or required to be provided in such
notice pursuant to this ARTICLE II Section 11 shall be true, correct and
complete as of the record date for the meeting and as of the date that is ten
business days prior to the meeting or any adjournment or postponement
thereof. If the Shareholder fails to provide such written
verification or a written update within such period, the information as to which
written verification or a written update was required may be deemed not to have
been provided in accordance with this ARTICLE II Section 11. Only
such proposals made in accordance with the procedures set forth in this ARTICLE
II Section 11 shall be eligible to be brought before the meeting. The
presiding officer at any Shareholders’ meeting shall have the power to determine
whether a proposal was made in accordance with this ARTICLE II Section 11, and,
if any proposal is not in compliance with this ARTICLE II Section 11, to declare
at the meeting or otherwise provide notice to the Proponent that such proposal
shall be disregarded.
(d)
General
. Without
limitation in any manner of the foregoing provisions of this ARTICLE II Section
11, a Shareholder shall also comply with all applicable requirements of state
law and the Exchange Act and the rules and regulations promulgated thereunder
with respect to the matters set forth in this ARTICLE II Section
11. Nothing in this ARTICLE II Section 11 shall be deemed to affect
the right of a Shareholder to request inclusion of a proposal in, nor the right
of the Corporation to omit a proposal from, the Corporation’s proxy statement
pursuant to Rule 14a-8 (or any successor provision) under the Exchange
Act.
Section
12.
List of
Shareholders
. At any meeting of Shareholders a list of
Shareholders, alphabetically arranged, showing the number and classes of shares
held by each on the record date applicable to such meeting, shall be produced on
the request of any Shareholder.
ARTICLE
III
DIRECTORS
Section
1.
General
Powers
. The authority of this Corporation shall be exercised
by or under the direction of the Board of Directors, except where the law, the
Articles or these Regulations require action to be authorized or taken by the
Shareholders.
Section
2.
Election, Number and
Qualification of Directors
.
(a)
Election
. The
Directors shall be elected at the Annual Meeting of the Shareholders, or if not
so elected, at a Special Meeting of the Shareholders called for that
purpose. The only candidates who shall be eligible for election at
such meeting shall be those who have been nominated by or at the direction of
the Board of Directors (which nominations shall be either made at such meeting
or disclosed in a proxy statement, or supplement thereto, distributed to
Shareholders for such meeting at the direction of the Board of Directors) and
those who have been nominated at such meeting by a Shareholder who has complied
with the procedures set forth in this ARTICLE III Section 2. A
Shareholder may make a nomination for the office of Director only if such
Shareholder has first delivered or sent by certified mail, return receipt
requested, to the Secretary of the Corporation notice in writing (a “Nomination
Notice”) at least ninety (90) and no more than 120 days prior to such meeting of
Shareholders (or, with respect to a Special Meeting the tenth day following the
day on which the public announcement of the date such meeting is first made by
the Corporation), which notice shall set forth or be accompanied by (i) as to
each individual proposed to be nominated; (A) the name, date of birth, business
address and residence address of such individual; (B) the business experience
during the past five years of such nominee, including his or her principal
occupations and employment during such period, the name and principal business
of any corporation or other organization in which such occupations and
employment were carried on, and such other information as to the nature of his
or her responsibilities and level of professional competence as may be
sufficient to permit assessment of his or her prior business experience; (C) a
description of all direct and indirect compensation and other material monetary
and non-monetary agreements, arrangements and understandings during the past
three years, and any other material relationships, between or among the
Shareholder submitting the Nomination Notice and any Shareholder Associated
Person
acting in
concert with such person, on the one hand, and each proposed nominee and any
Shareholder Associated Person acting in concert with such nominee, on the other
hand, including, without limitation all information that would be required to be
disclosed pursuant to Item 404 promulgated under Regulation S-K if the
nominating Shareholder and any beneficial owner on whose behalf the nomination
is made, if any, and any Shareholder Associated Person acting in concert
therewith, were the “registrant” for purposes of such Item and the nominee were
a director or executive officer of such registrant; (D) whether the nominee is
or has ever been at any time a director, officer or owner of five percent or
more of any class of capital stock, partnership interests or other equity
interest of any corporation, partnership or other entity; (E) any directorships
held by such nominee in any company with a class of securities registered
pursuant to Section 12 of the Exchange Act or subject to the requirements of
Section 15(d) of such Exchange Act or any company registered as an investment
company under the Investment Company Act of 1940, as amended; (F) whether, in
the last five years, such nominee has been convicted in a criminal proceeding or
has been subject to a judgment, order, finding or decree of any federal, state
or other governmental entity, concerning any violation of federal, state or
other law, or any proceeding in bankruptcy, which conviction, order, finding,
decree or proceeding may be material to an evaluation of the ability or
integrity of the nominee; and (G) any other information relating to such
individual that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for
election of directors in a contested election pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder; and (ii) as
to the Shareholder submitting the Nomination Notice and any Shareholder
Associated Person acting in concert with such Shareholder; (A) the name and
business address of such Shareholder and of such Shareholder Associated Person;
(B) the names and addresses of such Shareholder and of such Shareholder
Associated Person as they appear on the Corporation’s books (if they so appear);
and (C)(1) the class and number of shares of stock of the Corporation which are,
directly or indirectly, owned beneficially and of record by each of such
Shareholder and by such Shareholder Associated Person; (2) any Derivative
Instrument directly or indirectly owned beneficially by such Shareholder and by
such Shareholder Associated Person and any other direct or indirect opportunity
to profit or share in any profit derived from any increase or decrease in the
value of shares of stock of the Corporation; (3) any proxy, contract,
arrangement, understanding, or relationship pursuant to which such Shareholder
and such Shareholder Associated Person has a right to vote any shares of any
security of the Corporation; (4) any short interest in any security of the
Corporation (for purposes of these Regulations an individual shall be deemed to
have a short interest in a security if such individual directly or indirectly,
through any contract, arrangement, understanding, relationship or otherwise, has
the opportunity to profit or share in any profit derived from any decrease in
the value of the subject security); (5) any rights to dividends on the shares of
stock of the Corporation owned beneficially by such Shareholder and by such
Shareholder Associated Person that are separated or separable from the
underlying shares of stock of the Corporation; (6) any proportionate interest in
shares of stock of the Corporation or Derivative Instruments held, directly or
indirectly, by a general or limited partnership in which such Shareholder or
such Shareholder Associated Person is a general partner or, directly or
indirectly, beneficially owns an interest in a general
partner;
and (7) any performance-related fees (other than an asset-based fee) to which
such Shareholder or such Shareholder Associated Person is entitled to based on
any increase or decrease in the value of shares of stock of the Corporation or
Derivative Instruments, if any, as of the date of such Nomination Notice,
including without limitation, any such interests held by members of the
immediate family of such Shareholder sharing the same household or such
Shareholder Associated Person, if any, or either of them, that would be required
to be disclosed in a proxy statement or other filings required to be made in
connection with solicitation of proxies for the election of directors in a
contested election pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder (which information shall be supplemented, as
necessary, by such Shareholder and by such Shareholder Associated Person and
beneficial owner). A written consent to being named in a proxy statement as a
nominee, and to serve as a Director if so elected, signed by the nominee, shall
be filed with any Nomination Notice.
(b)
Shareholder
Nominations
. If a Nomination Notice submitted pursuant to this
ARTICLE III Section 2 by any Shareholder proposing a nominee for election as a
Director shall be inaccurate or materially misleading, such Nomination Notice
may be deemed not to have been provided in accordance with this ARTICLE III
Section 2. Any Shareholder proposing a nominee for election as a
Director shall provide (i) written verification, satisfactory, in the discretion
of the Board of Directors or any authorized officer of the Corporation, to
demonstrate the accuracy of any information submitted by the Shareholder
pursuant to this ARTICLE III Section 2; and (ii) a written update of any
information previously submitted by the Shareholder pursuant to this ARTICLE III
Section 2 as of an earlier date so that the information provided or required to
be provided in such notice pursuant to this ARTICLE III Section 2 shall be true
and correct as of the record date for the meeting and as of the date that is ten
business days prior to the meeting or any adjournment or postponement
thereof. If the Shareholder fails to provide such written
verification or a written update within such period, the information as to which
written verification or a written update was required may be deemed not to have
been provided in accordance with this ARTICLE III Section 2. Only
such individuals who are nominated by Shareholders in accordance with the
procedures set forth in this ARTICLE III Section 2 shall be eligible for
election as Directors. The presiding officer at any Shareholders’
meeting shall have the power to determine whether a Nomination Notice was made
in accordance with this ARTICLE III Section 2, and, if any Nomination Notice is
not in compliance with this ARTICLE III Section 2, to declare that such
Nomination Notice shall be disregarded.
(c)
Number
. The
number of Directors, which shall not be less than three, may be fixed or changed
at a meeting of the Shareholders called for the purpose of electing Directors at
which a quorum is present, by a majority of votes cast at the
meeting. In addition, the number of Directors may be fixed or changed
by action of the Directors at a meeting called for that purpose at which a
quorum is present by a majority vote of the Directors present at the
meeting. The Directors then in office may fill any Director’s office
that is created by an increase in the number of Directors. The number
of Directors elected shall be deemed to be the number of Directors fixed unless
otherwise fixed by resolution adopted at a meeting at which such Directors are
elected. Subject to
compliance
with the terms and conditions of ARTICLE II Section 11 hereof, Shareholders
shall be entitled to propose changing the number of
Directors.
(d)
Qualifications
. Directors
need not be Shareholders of the Corporation.
Section
3.
Term of Office of
Directors
.
(a)
Term
. Each
Director shall hold office until the next Annual Meeting of the Shareholders and
until his successor has been elected or until his earlier resignation, removal
from office, or death. Directors shall be subject to removal as
provided by statute or by other lawful procedures and nothing herein shall be
construed to prevent the removal of any or all Directors in accordance
therewith.
(b)
Resignation
. A
resignation from the Board of Directors shall be deemed to take effect
immediately upon its being received by any incumbent corporate officer other
than an officer who is also the resigning Director, unless some other time is
specified therein.
(c)
Vacancy
. In
the event of any vacancy in the Board of Directors for any cause, the remaining
Directors, though less than a majority of the whole Board, may fill any such
vacancy for the unexpired term.
Section
4.
Meetings of
Directors
.
(a)
Regular
Meetings
. A regular meeting of the Board of Directors shall be
held immediately following the adjournment of the Annual Meeting of the
Shareholders or a Special Meeting of the Shareholders at which Directors are
elected. The holding of such Shareholders’ meeting shall constitute
notice of such Directors’ meeting and such meeting shall be held without further
notice. Other regular meetings shall be held at such other times and
places as may be fixed by the Directors.
(b)
Special
Meetings
. Special meetings of the Board of Directors may be
held at any time upon call of the Chairman of the Board, the President, any Vice
President, or any two Directors.
(c)
Place of
Meeting
. Any meeting of Directors may be held at such place
within or without the State of Ohio as may be designated in the notice of said
meeting.
(d)
Notice of Meeting and Waiver
of Notice
. Notice of the time and place of any regular or
special meeting of the Board of Directors (other than the regular meeting of
Directors following the adjournment of the Annual Meeting of the Shareholders or
following any Special Meeting of the Shareholders at which Directors are
elected) shall be given to each Director by personal delivery, telephone, mail,
facsimile or other electronic medium at least 48 hours before the meeting, which
notice need not specify the purpose of the meeting. Such notice,
however, may be waived in writing by any Director either before or after any
such meeting, or by attendance at such meeting without protest prior to the
commencement thereof.
Section
5.
Quorum and
Voting
. At any meeting of Directors, not less than one-half of
the whole authorized number of Directors is necessary to constitute a quorum for
such meeting, except that a majority of the remaining Directors in office
constitutes a quorum for filling a vacancy in the Board. At any
meeting at which a quorum is present, all acts, questions, and business which
may come before the meeting shall be determined by a majority of votes cast by
the Directors present at such meeting, unless the vote of a greater number is
required by the Articles, Regulations or By-Laws.
Section
6.
Committees
.
(a)
Appointment
. The
Board of Directors may from time to time appoint certain of its members to act
as a committee or committees in the intervals between meetings of the Board and
may delegate to such committee or committees power to be exercised under the
control and direction of the Board. Each such committee and each
member thereof shall serve at the pleasure of the Board.
(b)
Executive
Committee
. In particular, the Board of Directors may create
from its membership and define the powers and duties of an Executive
Committee. During the intervals between meetings of the Board of
Directors, the Executive Committee shall possess and may exercise all of the
powers of the Board of Directors in the management and control and the business
of the Corporation to the extent permitted by law. All action taken
by the Executive Committee shall be reported to the Board of Directors at its
first meeting thereafter.
(c)
Committee
Action
. Unless otherwise provided by the Board of Directors, a
majority of the members of any committee appointed by the Board of Directors
pursuant to this Section shall constitute a quorum at any meeting thereof and
the act of a majority of the members present at a meeting at which a quorum is
present shall be the act of such committee. Action may be taken by
any such committee without a meeting by a writing signed by all its
members. Any such committee shall prescribe its own rules for calling
and holding meetings and its method of procedure, subject to any rules
prescribed by the Board of Directors, and shall keep a written record of all
action taken by it.
Section
7.
Action of Directors Without
a Meeting
. Any action which may be taken at a meeting of
Directors may be taken without a meeting if authorized by a writing or writings
signed by all the Directors, which writing or writings shall be filed or entered
upon the records of the Corporation.
Section
8.
Compensation of
Directors
. The Board of Directors may allow compensation for
attendance at meetings or for any special services, may allow compensation to
the member of any committee, and may reimburse any Director for his expenses in
connection with attending any Board or committee meeting.
Section
9.
Relationship with
Corporation
. Directors shall not be barred from providing
professional or other services to the Corporation. No contract,
action or transaction shall be void or voidable with respect to the Corporation
for the reason that it is between or
affects
the Corporation and one or more of its Directors, or between or affects the
Corporation and any other person in which one or more of its Directors are
directors, trustees or officers or have a financial or personal interest, or for
the reason that one or more interested Directors participate in or vote at the
meeting of the Directors or committee thereof that authorizes such contract,
action or transaction, if in any such case any of the following
apply:
(a) the
material facts as to the Director’s relationship or interest and as to the
contract, action or transaction are disclosed or are known to the Directors or
the committee and the Directors or committee, in good faith, reasonably
justified by such facts, authorize the contract, action or transaction by the
affirmative vote of a majority of the disinterested Directors, even though the
disinterested Directors constitute less than a quorum;
(b) the
material facts as to the Director’s relationship or interest and as to the
contract, action or transaction are disclosed or are known to the shareholders
entitled to vote thereon and the contract, action or transaction is specifically
approved at a meeting of the shareholders held for such purpose by the
affirmative vote of the holders of shares entitling them to exercise a majority
of the voting power of the Corporation held by persons not interested in the
contract, action or transaction; or
(c) the
contract, action or transaction is fair as to the Corporation as of the time it
is authorized or approved by the Directors, a committee thereof or the
shareholders.
Section
10.
Attendance at Meetings of
Persons Who Are Not Directors
. Unless waived by a majority of
Directors in attendance, not less than 24 hours before any regular or special
meeting of the Board of Directors any Director who desires the presence at such
meeting of not more than one person who is not a Director shall so notify all
other Directors, request the presence of such person at the meeting, and state
the reason in writing. Such person will not be permitted to attend
the Directors’ meeting unless a majority of the Directors in attendance vote to
admit such person to the meeting. Such vote shall constitute the
first order of business for any such meeting of the Board of
Directors. Such right to attend, whether granted by waiver or vote,
may be revoked at any time during any such meeting by the vote of a majority of
the Directors in attendance.
ARTICLE
IV
OFFICERS
Section
1.
General
Provisions
. The Board of Directors shall elect a President, a
Secretary and a Treasurer, and may elect a Chairman of the Board, one or more
Vice Presidents, and such other officers and assistant officers as the Board may
from time-to-time deem necessary. The Chairman of the Board, if any,
shall be a Director, but none of the other officers need be a
Director. 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 to be executed, acknowledged or verified
by two or more officers.
Section
2.
Powers and
Duties
. All officers, as between themselves and the
Corporation, shall respectively have such authority and perform such duties as
are customarily incident to their respective offices, and as may be specified
from time to time by the Board of Directors, regardless of whether such
authority and duties are customarily incident to such office. In the
absence of any officer of the Corporation, or for any other reason the Board of
Directors may deem sufficient, the powers or duties of such officer, or any of
them may be delegated, to any other officer or to any Director. The
Board of Directors may from time to time delegate to any officer authority to
appoint and remove subordinate officers and to prescribe their authority and
duties.
Section
3.
Term of Office and
Removal
.
(a)
Term
. Each
officer of the Corporation shall hold office at the pleasure of the Board of
Directors, and unless sooner removed by the Board of Directors, until the
meeting of the Board of Directors following the date of election of Directors
and until his successor is elected and qualified.
(b)
Removal
. The
Board of Directors may remove any officer at any time with or without cause by
the affirmative vote of a majority of Directors in office.
Section
4.
Compensation of
Officers
. Unless compensation is otherwise determined by a
majority of the Directors at a regular or special meeting of the Board of
Directors or unless such determination is delegated by the Board of Directors to
another officer or officers, the President of the Corporation from time to time
shall determine the compensation to be paid to all officers and other employees
for services rendered to the Corporation.
ARTICLE
V
INDEMNIFICATION OF DIRECTORS
AND OFFICERS
Section
1.
Right of
Indemnification
. Each person who was or is made a party to or
is threatened to be made a party to or is otherwise involved (including, without
limitation as a witness) in any actual or threatened action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
“proceeding”), by reason of the fact that he or she is or was a Director,
officer or member of a committee of the Corporation or that, being or having
been such a Director or officer of the Corporation, he or she is or was serving
at the request of an executive officer of the Corporation as a director,
officer, partner, trustee, employee or agent of another corporation or of a
partnership, joint venture, trust, limited liability company or other
enterprise, including service with respect to an employee benefit plan as a
trustee, fiduciary or otherwise (hereinafter an “Indemnitee”), whenever the
basis of such proceeding is alleged action in an official capacity as such a
director, officer, partner, trustee, employee, or agent, shall be indemnified
and held harmless by the Corporation to the fullest extent permitted by the Ohio
Revised Code, as the same exists or may hereafter be amended (but, in the case
of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than permitted prior
thereto), or by other applicable law as then in effect, against all expense,
liability and loss (including, without limitation, the cost of reasonable
settlements with or without suit, attorneys’ fees, costs of investigation,
judgments, fines, excise taxes or penalties arising under the Employee
Retirement Income
Security
Act of 1974 (“ERISA”) or other federal or state acts) actually incurred or
suffered by such Indemnitee in connection therewith and such indemnification
shall continue as to an Indemnitee who has ceased to be a director, officer,
partner, trustee, employee or agent and shall inure to the benefit of the
Indemnitee’s heirs, executors, and administrators. Except as provided
in ARTICLE V Section 2 with respect to proceedings seeking to enforce rights to
indemnification, the Corporation shall indemnify any such Indemnitee in
connection with a proceeding (or part thereof) initiated by such Indemnitee only
if such proceeding (or part thereof) was authorized or ratified by the Board of
Directors of the Corporation. To the extent any of the
indemnification provisions set forth above prove to be ineffective for any
reason in furnishing the indemnification provided, each of the persons named
above shall be indemnified by the Corporation to the fullest extent not
prohibited by applicable law.
(a) The
right to indemnification conferred in this ARTICLE V Section 1 shall be a
contract right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition (hereinafter an “advancement of expenses”). An
advancement of expenses shall be made only upon delivery to the Corporation of
an undertaking, by or on behalf of such Indemnitee, to repay all amounts so
advanced if it is proved by clear and convincing evidence in a court of
competent jurisdiction that his omission or failure to act involved an act or
omission undertaken with deliberate intent to cause injury to the Corporation or
undertaken with reckless disregard for the best interests of the
Corporation. An advancement of expenses shall not be made if the
Corporation’s Board of Directors makes a good faith determination that such
payment would violate applicable law.
Section
2.
Right of Indemnitee to Bring
Suit
. If a claim under ARTICLE V Section 1 is not paid in full
by the Corporation within 30 days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 20 days, the Indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful, in whole or in part, in any such suit,
or in a suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the Indemnitee shall also be entitled
to be paid the expense of prosecuting or defending such suit. The
Indemnitee shall be presumed to be entitled to indemnification under this
ARTICLE V upon submission of a written claim (and, in an action brought to
enforce a claim for an advancement of expenses, where the required undertaking
has been tendered to the Corporation), and thereafter the Corporation shall have
the burden of proof to overcome the presumption that the Indemnitee is so
entitled.
(a) Neither
the failure of the Corporation (including its Board of Directors, independent
legal counsel or its Shareholders) to have made a determination prior to the
commencement of such suit that indemnification of the Indemnitee is proper in
the circumstances, nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel or its Shareholders) that the
Indemnitee is not entitled to indemnification shall be a defense to the suit or
create a presumption that the Indemnitee is not so entitled.
Section
3.
Nonexclusivity and Survival
of Rights
. The rights to indemnification and to the
advancement of expenses conferred in this ARTICLE V shall not be exclusive of
any other
right which any person may have or hereafter acquire under any
statute, provisions of the Articles, these Regulations, agreement, vote of
Shareholders or disinterested Directors, or otherwise. Such rights
shall also not be exclusive of, and shall be in addition to, any rights to which
such person may be entitled by contract with the Corporation, which is expressly
permitted hereby.
(a) Notwithstanding
any amendment to or repeal of this ARTICLE V, or of any of the procedures
established by the Board of Directors pursuant to ARTICLE V Section 6, any
Indemnitee shall be entitled to indemnification in accordance with the
provisions hereof and thereof with respect to any acts or omissions of such
Indemnitee occurring prior to such amendment or repeal.
(b) Without
limiting the generality of the foregoing paragraph, the rights to
indemnification and to the advancement of expenses conferred in this ARTICLE V
shall, notwithstanding any amendment to or repeal of this ARTICLE V, inure to
the benefit of any person who otherwise may be entitled to be indemnified
pursuant to this ARTICLE V (or the estate or personal representative of such
person) for a period of six years after the date such person’s service to or in
behalf of the Corporation shall have terminated or for such longer period as may
be required in the event of a lengthening in the applicable statute of
limitations.
(c) Advancement
of expenses may be made by the Corporation against costs, expenses and fees to
the extent permitted by, and in accordance with, any terms and conditions of
applicable law.
Section
4.
Insurance, Contracts and
Funding
. The Corporation may, to the full extent then
permitted by law, purchase and maintain insurance or furnish similar protection,
including but not limited to trust funds, letters of credit or self-insurance,
on behalf of or for any persons described in this ARTICLE V, against any
liability asserted against and incurred by any such person in any such capacity,
or arising out of his status as such, whether or not the Corporation would have
the power to indemnify such person against such liability, loss and/or expense
under the Ohio Revised Code. The Corporation may enter into contracts with any
Indemnitee in furtherance of the provisions of this ARTICLE IV and may create a
trust fund, grant a security interest or use other means (including, without
limitation, a letter of credit) to ensure the payment of such amounts as may be
necessary to effect indemnification as provided in this ARTICLE
V. Insurance may be purchased from or maintained with a person in
which the Corporation has a financial interest.
Section
5.
Indemnification of Employees
and Agents of the Corporation
. The Corporation may, by action
of its Board of Directors, authorize one or more executive officers to grant
rights to advancement of expenses to employees or agents of the Corporation on
such terms and conditions no less stringent than provided in ARTICLE V Section 1
hereof as such officer or officers deem appropriate under the
circumstances. The Corporation may, by action of its Board of
Directors, grant rights to indemnification and advancement of expenses to
employees or agents or groups of employees or agents of the Corporation with the
same scope and effect as the provisions of this ARTICLE V with respect to the
indemnification and advancement of expenses
of
Directors, officers and members of a committee of the Corporation; provided,
however, that an undertaking shall be made by an employee or agent only if
required by the Board of Directors.
Section
6.
Procedures for the
Submission of Claims
. The Board of Directors may establish
reasonable procedures for the submission of claims for indemnification pursuant
to this ARTICLE V, determination of the entitlement of any person thereto, and
review of any such determination. Such procedures shall be set forth
in an appendix to these Regulations and shall be deemed for all purposes to be a
part hereof.
Section
7.
Definition of
Performance
. For the purposes of this Article, a Director,
officer or member of a committee shall conclusively be deemed not to have been
willfully derelict in the performance of such person’s duty as such Director,
officer or member of committee:
(a)
Determination by
Suit
. In a matter which shall have been the subject of a suit
or proceeding in which such person was a party which is disposed of by
adjudication on the merits, unless such person shall have been finally adjudged
in such suit or proceeding to have been willfully derelict in the performance of
that person’s duty as such Director, officer or member of a committee;
or
(b)
Determination by
Committee
. In a matter not falling within (a) above, a
majority of disinterested members of the Board of Directors or a majority of a
committee of disinterested Shareholders of the Corporation, selected as
hereinafter provided, shall determine that such person was not willfully
derelict. Such determination shall be made by the disinterested
members of the Board of Directors except where such members shall determine that
such matter should be referred to said committee of disinterested
Shareholders.
Section
8.
Selection of
Committee
. The selection of a committee of Shareholders
provided above may be made by the majority vote of the disinterested Directors
or, if there be no disinterested Director or Directors, by the chief executive
officer of the Corporation. A Director or Shareholder shall be deemed
disinterested in a matter if such person has no interest therein other than as a
Director or Shareholder of the Corporation as the case may be. The
Corporation shall pay the fees and expenses of the Shareholders or Directors, as
the case may be, incurred in connection with making a determination as above
provided.
Section
9.
Non-Committee
Determination
. In the event that a Director, officer or member
of a committee shall be found by some other method not to have been willfully
derelict in the performance of such person’s duty as such Director, officer or
member of a committee, then such determination as to dereliction shall not be
questioned on the ground that it was made otherwise than as provided
above.
ARTICLE
VI
SECURITIES HELD BY THE
CORPORATION
Section
1.
Transfer of Securities Owned
by the Corporation
. All endorsements, assignments, transfers,
stock powers, share powers or other instruments of transfer of securities
standing
in the name of the Corporation shall be executed for and in the name of the
Corporation by the President, by a Vice President, by the Secretary or by the
Treasurer or by any other person or persons as may be thereunto authorized by
the Board of Directors.
Section
2.
Voting Securities Held by
the Corporation
. The Chairman of the Board, President, and
Vice President, Secretary or Treasurer, in person or by another person thereunto
authorized by the Board of Directors, in person or by proxy or proxies appointed
by him, shall have full power and authority on behalf of the Corporation to
vote, act and consent with respect to any securities issued by other
corporations which the Corporation may own.
ARTICLE
VII
SHARE
CERTIFICATES
Section
1.
Transfer and Registration of
Certificates
. The Board of Directors shall have authority to
make such rules and regulations, not inconsistent with law, the Articles or
these Regulations, as it deems expedient concerning the issuance, transfer and
registration of certificates for shares and the shares represented thereby and
may appoint transfer agents and registrars thereof.
Section
2.
Substituted
Certificates
. Any person claiming that a certificate for
shares has been lost, stolen or destroyed, shall make an affidavit or
affirmation of that fact and, if required, shall give the Corporation (and its
registrar or registrars and its transfer agent or agents, if any) a bond of
indemnity, in such form and with one or more sureties satisfactory to the Board,
and, if required by the Board of Directors, shall advertise the same in such
manner as the Board of Directors may require, whereupon a new certificate may be
executed and delivered of the same tenor and for the same number of shares as
the one alleged to have been lost, stolen or destroyed.
ARTICLE
VIII
CONSISTENCY WITH ARTICLES OF
INCORPORATION
If any
provisions of these Regulations shall be inconsistent with the Corporation’s
Articles of Incorporation (and as they may be amended from time to time), the
Articles of Incorporation (as so amended at the time) shall govern.
ARTICLE
IX
SECTION
HEADINGS
The
headings contained in these Regulations are for reference purposes only and
shall not be construed to be part of and/or shall not affect in any way the
meaning or interpretation of these Regulations.
ARTICLE
X
AMENDMENTS
This Code
of Regulations of the Corporation (and as it may be amended from time-to-time)
may be amended or added to by the affirmative vote or the written consent of the
Shareholders of record entitled to exercise a majority of the voting power on
such proposal or by
the
Directors to the extent permitted by the Ohio Revised Code; provided, however,
that if an amendment or addition is adopted by written consent without a meeting
of the Shareholders or otherwise by the Directors, it shall be the duty of the
Secretary to enter the amendment or addition in the records of the Corporation,
and to provide notice to Shareholders to the extent required by applicable
law.
Adopted
by the Board of Directors effective as of January 21,
2009
