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) December 8, 2008
AMERICAN
FINANCIAL GROUP, INC.
(Exact
name of Registrant as specified in its Charter)
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Ohio
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1-13653
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31-1544320
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No. )
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One
East Fourth Street, Cincinnati, Ohio
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45202
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code (513) 579-2121
(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 (see General
Instruction A.2. below):
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On
December 8, 2008, the Board of Directors of American Financial Group, Inc., an
Ohio corporation (the “Company”), adopted, effective as of December 8, 2008, the
Amended and Restated Code of Regulations for the Company (the “Revised
Regulations”).
Apart
from non-substantive and conforming changes, the Regulations of the Company were
amended and restated by the Company to describe procedures to be followed for
shareholder proposals, requirements for calling special meetings, and
nominations of directors, to allow electronic delivery as a means for certain
notices of meetings as permitted by the Ohio Revised Code, and to expand the
circumstances under which the Company will indemnify and advance expenses to
directors, officers and certain employees of the Company. Such
changes more specifically include:
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•
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Requiring
shareholders to give notice of shareholder proposals and nominations to
the Board of Directors not more than 120 days nor less than 90 days before
an annual meeting or, for a special meeting, not later than the tenth day
following public announcement of the
meeting.
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•
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Requiring
that a shareholder proposal to the Board of Directors include certain
disclosures about the proposal including a description of the proposal,
the reasons for the proposal and any interest that the shareholder has in
the proposal.
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•
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Requiring
the notice of a shareholder nomination to make certain disclosures about
the proposed nominee, including biographical, stock ownership and
investment intent information and all other information about the proposed
nominee that is required in the solicitation of proxies in an election
contest or otherwise required pursuant to Regulation 14A under the
Securities Exchange Act of 1934.
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•
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Requiring
the notice of a shareholder proposal, nomination or request for special
meeting to make certain disclosures regarding the shareholder giving the
notice and specified persons associated with such shareholder, including
stock ownership information for and any hedging activity or other similar
arrangements entered into by such
persons.
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Requiring
a shareholder to verify the accuracy or completeness of any information
contained in a shareholder proposal or nomination at the Company’s request
and stating that a shareholder proposal or nomination that is inaccurate
or incomplete in any manner shall be
disregarded.
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Permitting
the Company to provide notice electronically for meetings of shareholders
and directors to the extent permitted by Ohio
law.
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Expanding
the indemnification provisions applicable to current and former directors
and officers of the Company to permit indemnification and advancement of
expenses to the full extent authorized by Ohio
law.
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The
foregoing is a brief description of the material amendments to the Company’s
Regulations and is qualified in its entirety by reference to the full text of
the Revised Regulations. This description should be read in conjunction with the
Revised Regulations, a copy of which is filed as Exhibit 3 and is incorporated
by reference in this Form 8-K.
Item
9.01. – Financial Statements and Exhibits.
(d) Exhibits.
3 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.
| AMERICAN FINANCIAL GROUP, INC. | |||
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Date:
December 11, 2008
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By:
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/s/ Karl J. Grafe | |
| Name: Karl J. Grafe | |||
| Title: Vice President | |||
EXHIBIT
3
AMENDED
AND RESTATED CODE OF REGULATIONS
OF
AMERICAN
FINANCIAL GROUP, INC. (the “Corporation”)
ARTICLE
I
SHAREHOLDERS
Section
1. Annual
Meetings. The Annual Meeting of the Shareholders of this
Corporation, for the election of the Board of Directors and the transaction of
such other business as may properly be brought before such meeting, shall be
held at the time, date and place designated by the Board of Directors or, if it
shall so determine, by the Chairman of the Board or the President. If
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, in the absence of a quorum of Directors, a majority
of the then remaining Directors), or the Shareholders beneficially owning twenty
percent (20%) (the “Requisite Percentage”) of the outstanding shares of the
Corporation and entitled to vote at such meeting. 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.
2.1 Requirements for
Shareholders Calling Special Meetings 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 I Section 2.1.
2.1.1 Record
Date. No Shareholder may demand a special meeting pursuant to
ARTICLE I 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 request
shall be in proper form and delivered to the Secretary of the
Corporation.
2.1.2 Proper
Form. For the purposes of this ARTICLE I Section 2, a request
to set a record date shall set forth:
(1) 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 I
Section 10.1 of these Regulations, except that for the purposes of this ARTICLE
I Section 2.1 the term “Requesting Shareholder” shall be substituted for the
term “Proponent” in all places it appears in ARTICLE I Section
10.1.
(2) 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.
(3) For
purposes of this ARTICLE I Section 2.1, 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 I Section
10.2.
2.1.3 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 I Section 2.1. To be timely, a Shareholder’s demand to
call a special meeting must be received by the Corporation not later than the
sixtieth (60th) day following the record date. To be in proper form
for purposes of this ARTICLE I Section 2.1, 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 I Section 2.1 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 I Section 4.
2.1.4 Improper
Submission. A written demand from a Shareholder is improper if
(i) it does not comply with this ARTICLE I Section 2.1; (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.
2.1.5 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 2.1 shall be true and correct as of the record date for the
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special
meeting and as of the date that is ten (10) 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 (5) 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 (8)
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 (10) 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 I
Section 2.1 may be called except in accordance with this ARTICLE I Section
2.1. 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 I Section 2.1, or shall determine that the
Requesting Shareholders or Shareholders submitting a demand for a special
meeting have not otherwise complied with this ARTICLE I Section 2.1, 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 I Section 2.1, 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.
4.1 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 (7) days nor more
than sixty (60) days before the date fixed for the meeting and as prescribed by
law. Such notice shall be given 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 pre-paid, to the Shareholders at
their respective addresses as they appear on the records of the Corporation, and
notice shall be deemed to have been given on the day 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.
4.2 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. As used herein, “person” means an individual, corporation,
partnership, limited liability company, association, trust, unincorporated
organization, or any other entity or group (as defined in Section 13(d)(3) of
the Exchange Act.
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4.3 Waiver. Notice
of any meeting may be waived in writing by any Shareholder either before or
after any meeting, or by attendance at such meeting without protest to its
commencement.
Section
5. Shareholders Entitled to
Notice and to Vote. If a record date shall not be fixed, the
record date for the determination of Shareholders entitled to notice of or to
vote at any meeting of Shareholders shall be 5:00 p.m. Cincinnati, Ohio local
time on the twentieth day (20th) 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.
Section
6. Quorum. 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
any meeting. 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. Voting. Except
as provided by statute or in the Articles of Incorporation (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 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; 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.
Section
8. Organization of
Meetings.
8.1 Presiding
Officer. The Chairman of the Board, or in his absence, the
President, or the person designated by the Board of Directors, 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 of such
meeting.
8.2 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
9. 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.
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Section
10. Shareholder
Proposals.
10.1 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 ninety (90) and no more than one hundred
twenty (120) days prior to such meeting of Shareholders (or, with respect to a
special meeting the tenth (10th) 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 (a) the names and business addresses of the Proponent and any
“Shareholder Associated Person”, as defined in subsection 10.2 of this ARTICLE I
Section 10, acting in concert with the Proponent; (b) 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); (c)(i) 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, (ii) 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, (iii) 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, (iv) 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), (v) 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, (vi) 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 (vii) 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
5
regulations
promulgated thereunder (which information shall be supplemented, as necessary,
by such Shareholder and by any such Shareholder Associated Person and beneficial
owner); (d) 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 (e) 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.
10.2 Shareholder Associated
Person. For the purposes of this ARTICLE I Section 10 and ARTICLE II
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.
10.3 Inaccurate
Information. If information submitted pursuant to this ARTICLE
I Section 10 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 I Section 10. 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 I Section 10; and (ii) a written update of any information previously
submitted by the Shareholder pursuant to this ARTICLE I Section 10 as of an
earlier date so that the information provided or required to be provided in such
notice pursuant to this Article I Section 10 shall be true, correct and complete
as of the record date for the meeting and as of the date that is ten (10)
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 I Section 10. Only such
proposals made in accordance with the procedures set forth in this ARTICLE I
Section 10 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 I Section 10, and,
if any proposal is not in compliance with this ARTICLE I Section 10, to declare
at the meeting or otherwise provide notice to the Proponent that such proposal
shall be disregarded.
10.4 General. Without
limitation in any manner of the foregoing provisions of this ARTICLE I Section
10, 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 I Section
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10. Nothing
in this ARTICLE I Section 10 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
11. 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
II
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.
2.1 Election. The
Directors shall be elected at the Annual Meeting of the Shareholders, or if not
so elected, at a special meeting of 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 II 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 one hundred twenty
(120) days prior to such meeting of Shareholders (or, with respect to a special
meeting the tenth (10th) 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 (a) as to each individual proposed to be nominated; (i) the name, date of
birth, business address and residence address of such individual; (ii) the
business experience during the past five (5) 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;
(iii) a description of all direct and indirect compensation and other material
monetary and non-monetary agreements, arrangements and understandings during the
past three (3) 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
7
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;
(iv) whether the nominee is or has ever been at any time a director, officer or
owner of 5% or more of any class of capital stock, partnership interests or
other equity interest of any corporation, partnership or other entity; (v) 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; (vi)
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 (vii) 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 (b) as to
the Shareholder submitting the Nomination Notice and any Shareholder Associated
Person acting in concert with such Shareholder; (i) the name and business
address of such Shareholder and of such Shareholder Associated Person; (ii) 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
(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 such
Shareholder and by such Shareholder Associated Person, (B) 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, (C) 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, (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 such Shareholder and by 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 such Shareholder or
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 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
8
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.
2.2 Shareholder
Nominations. If a Nomination Notice submitted pursuant to this
ARTICLE II 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 II
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 II Section 2; and (ii) a written update of any
information previously submitted by the Shareholder pursuant to this ARTICLE II
Section 2 as of an earlier date so that the information provided or required to
be provided in such notice pursuant to this ARTICLE II Section 2 shall be true
and correct as of the record date for the meeting and as of the date that is ten
(10) 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 2. Only such
individuals who are nominated by Shareholders in accordance with the procedures
set forth in this ARTICLE II 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 II Section 2, and, if any Nomination Notice is not in
compliance with this ARTICLE II Section 2, to declare that such Nomination
Notice shall be disregarded.
2.3 Number. The
number of Directors, which shall not be less than the lesser of three or the
number of Shareholders of record, 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 the votes cast at the meeting. In addition,
the number of Directors may be fixed or changed by action of the Directors at
any meeting 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 the
meeting at which such Directors are elected.
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2.4 Qualifications. Directors
need not be Shareholders of the Corporation.
Section
3. Term of Office of
Directors.
3.1 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.
3.2 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.
3.3 Vacancy. In
the event of any vacancy in the Board of Directors for any reason, 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.
4.1 Regular
Meetings. Regular meetings of the Board of Directors shall be
held at such times and places as may be fixed by the Directors.
4.2 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.
4.3 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.
4.4 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,
or by electronic delivery at least forty-eight 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.
4.5 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 shall
constitute 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 or these Regulations.
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Section
5. Committees.
5.1 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 committee shall be composed
of at least such number of Directors as required by law, regulation or stock
exchange rule. Each such committee and each member thereof shall
serve at the pleasure of the Board.
5.2 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.
5.3 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. 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
6. Action of Directors Without
a Meeting. Any action which may be taken at a meeting of
Directors or any committee thereof may be taken without a meeting if authorized
by a writing or writings signed by all the Directors or all of the members of
the particular committee, which writing or writings shall be filed or entered
upon the records of the Corporation.
Section
7. Compensation of
Directors. The Board of Directors may allow compensation to
Directors for performance of their duties and for attendance at meetings or for
any special services, may allow compensation to members of any committee, and
may reimburse any Director for his expenses in connection with attending any
Board or committee meeting.
Section
8. 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 Officers, or between or affects the Corporation and any other
person in which one or more of its Directors or Officers are directors, trustees
or officers or have a financial or personal interest, or for the reason that one
or more interested Directors or Officers 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 applies:
8.1 the
material facts as to the Director’s or Officer’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;
8.2 the
material facts as to the Director’s or Officer’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
8.3 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
9. Attendance at Meetings of
Persons Who Are Not Directors. Unless waived by the Chairman,
any Director who desires the presence at any regular or special meeting of the
Board of Directors of a person who is not a Director, shall so notify all other
Directors, not less than twenty-four (24) hours before such meeting, request the
presence of such person 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 and such
majority shall specify the terms and conditions, if any, pursuant to which such
right to attend may be subject.
ARTICLE
III
OFFICERS
Section
1. General
Provisions. The Board of Directors shall elect one or more
Presidents, Secretaries and Treasurers, and may elect one or more Chief
Executive Officers, Vice Presidents, and such other Officers and Assistant
Officers as the Board may from time to time deem necessary. The Board
of Directors may also elect a Chairman of the Board, who shall be a Director,
but may or may not be an Officer. None of the Officers need to be
Directors. 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. The
Chief Executive Officer, if any, may also serve either as Chairman of the Board
or President or
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in
another capacity as an Officer; the Chief Executive Officer shall have plenary
power over the business and activities of the Corporation and over its Officers
and employees, subject, however, to the control of the Board of Directors and
any limitations thereon contained in these Regulations. 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.
3.1 Term. Each
Officer of the Corporation shall hold office at the pleasure of the Board of
Directors.
3.2 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. The Directors shall establish the compensation of
Officers and employees or may, to the extent not prohibited by law, delegate
such authority to a committee of Directors, the President or a Chief Executive
Officer, as they determine.
ARTICLE
IV
INDEMNIFICATION
Section
1. Right to
Indemnification. Each person who was or is made a party 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
(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 General Corporation Law of Ohio, 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 IV Section 2 with
respect to proceedings seeking to enforce rights to indemnification,
the
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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.
1.1 The
right to indemnification conferred in this ARTICLE IV 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 IV Section 1 is not paid in
full by the Corporation within thirty 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 twenty 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 IV 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.
2.1 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 IV shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, provisions of the Articles of Incorporation, Code of 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.
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3.1 Notwithstanding
any amendment to or repeal of this ARTICLE IV, or of any of the procedures
established by the Board of Directors pursuant to ARTICLE IV 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.
3.2 Without
limiting the generality of the foregoing paragraph, the rights to
indemnification and to the advancement of expenses conferred in this ARTICLE IV
shall, notwithstanding any amendment to or repeal of this ARTICLE IV, inure to
the benefit of any person who otherwise may be entitled to be indemnified
pursuant to this ARTICLE IV (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.
3.3
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 IV, 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 General Corporation Law of Ohio. 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 IV. 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 IV 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 IV 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.
14
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 IV, 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.
ARTICLE
V
Amendments
This Code
of Regulations may be amended by the affirmative vote or the written consent of
the Shareholders 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 at
the time of such amendment. If an amendment is adopted by
written consent without a meeting of the Shareholders or otherwise by the
Directors the Secretary shall enter the amendment in the records of the
Corporation and shall provide notice to Shareholders to the extent and in the
manner required by applicable law.
Adopted
by the Board effective December 8, 2008.
15