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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) November 23, 1998
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Cardinal Health, Inc.
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(Exact name of registrant as specified in its charter)
Ohio 0-12591 31-0958666
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification
Number)
5555 Glendon Court, Dublin, Ohio 43016
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(Address of principal executive offices) Zip Code)
Registrant's telephone number, including area code (614) 717-5000
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Item 5. Other Events
At the Annual Meeting of Shareholders held on November 23, 1998 (the "Annual
Meeting"), the shareholders of Cardinal Health, Inc. (the "Company"), among
other items, adopted an amendment to the Company's Articles of Incorporation
increasing the number of authorized Company Common Shares, without par value,
from 300 million to 500 million. The amendment to the Company's Articles of
Incorporation was filed with the Ohio Secretary of State on November 23, 1998.
The Articles of Incorporation of the Company, as amended, are included in this
Form 8-K as Exhibit 3.01.
At the Annual Meeting, the shareholders of the Company also adopted a proposal
to amend and restate the Company's Restated Code of Regulations. The Restated
Code of Regulations of the Company is included in this Form 8-K as Exhibit 3.02.
Item 7. Financial Statements, Schedules and Exhibits
(c)Exhibits
3.01 Articles of Incorporation of the Company, as amended
3.02 Restated Code of Regulations of the Company
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.
CARDINAL HEALTH, INC.
Date: November 24, 1998 By /s/ George H. Bennett, Jr.
-----------------------------------
George H. Bennett, Jr.
Executive Vice President, Secretary
and General Counsel
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Exhibit 3.01
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
CARDINAL DISTRIBUTION, INC.
These constitute the amended and restated articles of incorporation
of Cardinal Distribution, Inc., a corporation for profit formed under
the Ohio General Corporation Law, which amended and restated articles
of incorporation supersede the previously existing articles of incorporation
of the corporation, as heretofore amended:
FIRST: The name of the corporation shall be "Cardinal Dis-
tribution, Inc."
SECOND: The place in Ohio where the principal office of the
corporation is to be located is the City of Columbus, Franklin County.
THIRD: The purpose or purposes for which the corporation
is formed are to engage in any lawful act or activity for which corpora-
tions may be formed under Sections 1701.01 to 1701.98, inclusive, of
the Ohio Revised Code and any amendments heretofore or hereafter made
thereto.
FOURTH: Section 1. AUTHORIZED SHARES. The maximum aggregate
number of shares which the corporation is authorized to have outstanding
is 10,500,000, consisting of 10,000,000 common shares without par value
and 500,000 nonvoting preferred shares without par value.
Section 2. ISSUANCE OF PREFERRED SHARES. The board of directors
is authorized at any time, and from time to time, to provide for the
issuance of nonvoting preferred shares in one or more series, and to
determine to the extent permitted by law the designations, preferences,
limitations, and relative or other rights of the nonvoting preferred
shares or any series thereof. For each series, the board of directors
shall determine, by resolution or resolutions adopted prior to
issuance of any shares thereof, the designations, preferences, limitations,
and relative or other rights thereof, including but not limited to
the following relative rights and preferences, as to which there may
be variations among different series:
(a) the division of such shares into series and the designation
and authorized number of shares of each series,
(b) the dividend rate,
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(c) the dates of payment of dividends and the dates from which
they are cumulative,
(d) liquidation price,
(e) redemption rights and price,
(f) sinking fund requirements,
(g) conversion rights, and
(h) restrictions on the issuance of such shares.
Prior to the issuance of any shares of a series, but after
adoption by the board of directors of the resolution establishing such
series, the appropriate officers of the corporation shall file such
documents with the State of Ohio as may be required by law including,
without limitation, an amendment to these Articles of Incorporation.
Section 3. COMMON SHARES. Each common share shall entitle
the holder thereof to one vote, in person or by proxy, at any and all
meetings of the shareholders of the corporation, on all propositions
before such meetings. Subject to the preferences of any outstanding
preferred shares, each common share shall be entitled to participate
equally in such dividends as may be declared by the board of directors
out of funds legally available therefor, and to participate equally
in all distributions of assets upon liquidation.
FIFTH: The amount of stated capital with which the corporation
will begin business shall be not less than five hundred dollars ($500).
SIXTH: The board of directors may fix and determine, and
vary, the amount of working capital of the corporation; determine whether
any (and, if any, what part) of the surplus, however created or arising,
shall be used or disposed of or declared in dividends or paid to share-
holders; and, without action by the shareholders, use and apply such
surplus, or any part thereof, or such part of the stated capital of
the corporation as is permitted under the laws of the State of Ohio,
at any time or from time to time, in the purchase or acquisition of
shares of any class, voting-trust certificates for shares, bonds, deben-
tures, notes, scrip, warrants, obligations, evidence of indebtedness
of the corporation, or other securities of the corporation, to such
extent or amount and in such manner and upon such terms as the board
of directors shall deem expedient and without regard to any provisions
which may hereafter be contained in the corporation's articles of incor-
poration with respect to the redemption of shares of any class at the
option of the corporation.
SEVENTH: Every statute of the State of Ohio hereafter enacted,
whereby rights or privileges of the shareholders of a corporation organ-
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ized under the Ohio General Corporation Law are increased, diminished,
or in any way affected, or whereby effect is given to any action author-
ized, ratified, or approved by less than all the shareholders of any
such corporation, shall apply to the corporation and shall bind every
shareholder to the same extent as if such statute had been in force
at the date of the filing of these articles of incorporation.
EIGHTH: A director or officer of the corporation shall not
be disqualified by his office from dealing or contracting with the
corporation as a vendor, purchaser, employee, agent, or otherwise.
No transaction or contract or act of the corporation shall be void
or voidable or in any way affected or invalidated by reason of the
fact that any director or officer, or any firm of which any director
or officer is a shareholder, director, or trustee, or any trust of
which any director or officer is a trustee or beneficiary, is in any
way interested in such transaction or contract or act. No director
or officer shall be accountable or responsible to the corporation for
or in respect to any transaction or contract or act of the corporation
or for any gains or profits directly or indirectly realized by him
by reason of the fact that he or any firm of which he is a member or
any corporation of which he is a shareholder, director, or trustee,
or any trust of which he is a trustee or beneficiary, is interested
in such transaction or contract or act; provided the fact that such
director or officer or such firm or corporation or such trust is so
interested shall have been disclosed or shall have been known to the
board of directors or such members thereof as shall be present at any
meeting of the board of directors at which action upon such contract
or transaction or act shall have been taken. Any director may be counted
in determining the existence of a quorum at any meeting of the board
of directors which shall authorize or take action in respect to any
such contract or transaction or act, and may vote thereat to authorize,
ratify, or approve any such contract or transaction or act, and any
officer of the corporation may take any action within the scope of
his authority respecting such contract or transaction or act with like
force and effect as if he or any firm of which he is a member, or any
corporation of which he is a shareholder, director, or trustee, or
any trust of which he is a trustee or beneficiary, were not interested
in such transaction or contract or act. Without limiting or qualifying
the foregoing, if in any judicial or other inquiry, suit, cause, or
proceeding, the question of whether a director or officer of the corpora-
tion has acted in good faith is material, then notwithstanding any
statute or rule of law or of equity to the contrary (if any there be),
his good faith shall be presumed, in the absence of proof to the contrary
by clear and convincing evidence.
NINTH: No holder of shares of any class of the corporation
shall be entitled as such, as a matter of right, to subscribe for or
purchase shares of any class, now or hereafter authorized, or to purchase
or to subscribe for securities convertible into or exchangeable for
shares of the corporation, or to which shall appertain or be attached
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any warrants or rights entitling the holder thereto to subscribe for
or purchase shares, except such rights of subscription or purchase,
if any, at such price or prices, and upon such terms and conditions
as the board of directors in its discretion may from time to time deter-
mine.
TENTH: Except as otherwise provided in these Articles of
Incorporation or the Code of Regulations of the corporation, notwithstand-
ing any provision of any statute of the State of Ohio, now or hereafter
in force, requiring for any purpose the vote, consent, waiver, or release
of the holders of shares entitling them to exercise two-thirds or any
other proportion of the voting power of the corporation or of any class
or classes of shares thereof, any action may be taken by the vote of
the holders of shares entitling them to exercise a majority of the
voting power of the corporation, or of such class or classes, unless
the proportion designated by such statute cannot be altered by these
articles.
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CERTIFICATE OF AMENDMENT
TO THE AMENDED AND RESTATED ARTICLES OF INCORPORATION OF
CARDINAL DISTRIBUTION, INC.
Robert D. Walter and Michael E. Moritz hereby certify that they are the
duly elected and acting chairman and secretary, respectively, of Cardinal
Distribution, Inc., an Ohio corporation (the "Company"), and further certify
that the following is a true copy of a resolution amending the Company's
Amended and Restated Articles of Incorporation duly adopted by the affirmative
vote of the holders of shares of the Company entitling them to exercise a
majority of the voting power of the Company at the annual meeting of
shareholders duly held on August 30, 1989:
RESOLVED, That the Amended and Restated Articles of
Incorporation of the Company be amended by deleting ARTICLE
FOURTH thereof in its entirety and by substituting in lieu
thereof the following ARTICLE FOURTH:
FOURTH: Section 1. AUTHORIZED SHARES. The
maximum aggregate number of shares which the
corporation is authorized to have outstanding is
20,500,000, consisting of 20,000,000 common shares
without par value and 500,000 nonvoting preferred
shares without par value.
Section 2. ISSUANCE OF PREFERRED SHARES.
The board of directors is authorized at any time,
and from time to time, to provide for the issuance
of nonvoting preferred shares in one or more
series, and to determine to the extent permitted
by law the designations, preferences, limitations,
and relative or other rights of the nonvoting
preferred shares or any series thereof. For each
series, the board of directors shall determine, by
resolution or resolutions adopted prior to the
issuance of any shares thereof, the designations,
preferences, limitations, and relative or other
rights thereof, including but not limited to the
following relative rights and preferences, as to
which there may be variations among different
series:
(a) the division of such shares into series
and the designation and authorized
number of shares of each series,
(b) the dividend rate,
(c) the dates of payment of dividends and
the dates from which they are
cumulative,
(d) liquidation price,
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(e) redemption rights and price,
(f) sinking fund requirements,
(g) conversion rights, and
(h) restrictions on the issuance
of such shares.
Prior to the issuance of any shares of a series,
but after adoption by the board of directors of
the resolution establishing such series, the
appropriate officers of the corporation shall file
such documents with the State of Ohio as may be
required by law including, without limitation, an
amendment to these Articles of Incorporation.
Section 3. COMMON SHARES. Each common share
shall entitle the holder thereof to one vote, in
person or by proxy, at any and all meetings of the
shareholders of the corporation, on all
propositions before such meetings. Subject to the
preferences of any outstanding preferred shares,
each common share shall be entitled to participate
equally in such dividends as may be declared by
the board of directors out of funds legally
available therefor, and to participate equally in
all distributions of assets upon liquidation.
August 30, 1989 CARDINAL DISTRIBUTION, INC.
By /s/ ROBERT D. WALTER
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Robert D. Walter, Chairman
By /s/ MICHAEL E. MORITZ
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Michael E. Moritz, Secretary
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CERTIFICATE OF AMENDMENT
TO THE AMENDED AND RESTATED ARTICLES OF INCORPORATION OF
CARDINAL DISTRIBUTION, INC.
Robert D. Walter and George H. Bennett, Jr. hereby certify that they
are the duly elected and acting chairman and assistant secretary,
respectively, of Cardinal Distribution, Inc., an Ohio corporation (the
"Company"), and further certify that the following is a true copy of a
resolution amending the Company's Amended and Restated Articles of
Incorporation duly adopted by the affirmative vote of the holders of shares of
the Company entitling them to exercise a majority of the voting power of the
Company at the annual meeting of shareholders duly held on August 15, 1991:
REVOLVED, that Article FOURTH of the Company's Amended and
Restated Articles of Incorporation be, and the same hereby is,
deleted in its entirety and there is substituting the following:
FOURTH: Section 1. AUTHORIZED SHARES. The
maximum aggregate number of shares which the
corporation is authorized to have outstanding
is 40,500,000 consisting of 40,000,000 common
shares without par value and 500,000 nonvoting
preferred shares without par value.
Section 2. ISSUANCE OF PREFERRED SHARES. The
board of directors is authorized at any time,
and from time to time, to provide for the
issuance of nonvoting preferred shares in one
or more series, and to determine to the extent
permitted by law the designations, preferences,
limitations, and relative or other rights of
the nonvoting preferred shares or any other
series thereof. For each series, the board of
directors shall determine, by resolution or
resolutions adopted prior to the issuance of any
shares thereof, the designations, preferences,
limitations, and relative or other rights thereof,
including but not limited to the following
relative rights and preferences, as to which
there may be variations among different series:
(a) the division of such shares into
series and the designation and
authorized number of shares of
each series,
(b) the divided rate,
(c) the dates of payment of dividends and
the dates from which they are cumulative,
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(d) liquidation price,
(e) redemption rights and price,
(f) sinking fund requirements,
(g) conversion rights, and
(h) restrictions on the issuance of such shares.
Prior to the issuance of any shares of a series, but after
adoption by the board of directors of the resolution
establishing such series, the appropriate officers of the
corporation shall file such documents with the State of Ohio
as may be required by law including, without limitation, an
amendment to these Articles of Incorporation.
Section 3. COMMON SHARES. Each common share shall
entitle the holder thereof to one vote, in person or by proxy,
at any and all meetings of the shareholders of the corporation,
on all propositions before such meetings. Subject to the
preferences of any outstanding preferred shares, each common
share shall be entitled to participate equally in such dividends
as may be declared by the board of directors out of funds
legally available therefor, and to participate equally in all
distributions of assets upon liquidation.
August 15, 1991 CARDINAL DISTRIBUTION, INC.
By /s/ ROBERT D. WALTER
---------------------------
Robert D. Walter, Chairman
By /s/ GEORGE H. BENNETT, JR.
---------------------------
George H. Bennett, Jr., Assistant
Secretary
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EXHIBIT A
TO
CERTIFICATE OF AMENDMENT
TO
AMENDED AND RESTATED ARTICLES OF INCORPORATION, AS AMENDED
OF
CARDINAL DISTRIBUTION, INC.
Resolved, that Article FIRST, of the Amended and Restated Articles of
Incorporation, as amended, of Cardinal Distribution, Inc. be, and the same
hereby is, deleted in its entirety and there is substituted therefor the
following:
FIRST: The name of the corporation shall be "Cardinal Health, Inc."
Resolved, that Article FOURTH of the Amended and Restated Articles of
Incorporation, as amended, of Cardinal Distribution, Inc. be, and the same
hereby is, deleted in its entirety and there is substituted therefor the
following:
FOURTH: Section 1. AUTHORIZED SHARES. The maximum aggregate
number of shares which the corporation is authorized to have
outstanding is 65,500,000, consisting of 60,000,000 common shares,
without par value ("Class A Common Shares"), 5,000,000 Class B common
shares, without par value ("Class B Common Shares") (the Class A Common
Shares and the Class B Common Shares are sometimes referred to herein
collectively as the "Common Shares"), and 500,000 nonvoting preferred
shares, without par value.
Section 2. ISSUANCE OF PREFERRED SHARES. The board of directors
is authorized at any time, and from time to time, to provide for the
issuance of nonvoting preferred shares in one or more series, and to
determine to the extent permitted by law the designations, preferences,
limitations, and relative or other rights of the nonvoting preferred
shares or any series thereof. For each series, the board of directors
shall determine, by resolution or resolutions adopted prior to the
issuance of any shares thereof, the designations, preferences,
limitations, and relative or other rights thereof, including but not
limited to the following relative rights and preferences, as to which
there may be variations among different series:
(a) the division of such shares into series and the
designation and authorized number of shares of each series,
(b) the dividend rate,
(c) the dates of payment of dividends and the dates from which
they are cumulative,
(d) liquidation price,
(e) redemption rights and price,
(f) sinking fund requirements,
(g) conversion rights, and
(h) restrictions on the issuance of such shares.
Prior to the issuance of any shares of a series, but after adoption by
the board of directors of the resolution establishing such series, the
appropriate officers of the corporation shall file such documents with
the State of Ohio as may be required by law including, without
limitation, an amendment to these Articles of Incorporation.
Section 3. COMMON SHARES.
All common shares shall be identical and will entitle the holders
thereof to the same rights and privileges, except as otherwise provided
herein.
A. VOTING RIGHTS.
1. CLASS A COMMON SHARES. Except as set forth herein or as
otherwise required by law, each outstanding Class A Common Share shall
entitle the holder thereof to one vote, in person or by
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proxy, at any and all meetings of the shareholders of the corporation,
on all propositions before such meetings.
2. CLASS B COMMON STOCK. Except as set forth herein or as
otherwise required by law, each outstanding Class B Common Share shall
entitle the holder thereof to one-fifth (1/5) of one vote, in person
or by proxy, at any and all meetings of shareholders of the corporation,
on all propositions before such meetings. Notwithstanding the
foregoing, holders of the Class B Common Shares shall be entitled to
vote as a separate class on any amendment to this paragraph 2 of this
Section A, on the issuance in the aggregate by the corporation of
additional Class B Common Shares in excess of the number of Class B
Common Shares held by Chemical Equity Associates and its Affiliates or
issuable pursuant to Section 3(c) hereof and on any amendment, repeal
or modification of any provision of these Articles that adversely
affects the powers, preferences or special rights of the holders of the
Class B Common Shares.
B. DIVIDENDS; LIQUIDATION. Subject to the preferences of any
preferred shares, each Common Share shall be entitled to participate equally in
such dividends as may be declared by its board of directors out of funds
legally available therefor or to participate equally in all distributions of
assets upon liquidation; provided, that in the case of dividends payable in
Common Shares of the Corporation, or options, warrants or rights to acquire
such Common Shares, or securities convertible into or exchangeable for such
Common Shares, the shares, options, warrants, rights or securities so payable
shall be payable in shares of, or options, warrants or rights to acquire, or
securities convertible into or exchangeable for, Common Shares of the same
class upon which the dividend or distribution is being paid.
C. CONVERSION.
1. CONVERSION OF CLASS A COMMON SHARES. Any Regulated Shareholder
(defined below) shall be entitled to convert, at any time and from time
to time, any or all of the Class A Common Shares held by such
shareholder into the same number of Class B Common Shares.
2. CONVERSION OF CLASS B COMMON SHARES. Each holder of Class B
Common Shares may convert such shares into Class A Common Shares if
such holder reasonably believes that such converted shares will be
transferred within fifteen (15) days pursuant to a Conversion Event
(defined below) and such holder agrees not to vote any such Class A
Common Shares prior to such Conversion Event and undertakes to
promptly convert such shares back into Class B Common Shares if such
shares are not transferred pursuant to a Conversion Event. Each
Regulated Shareholder may provide for further restrictions or
limitations upon the conversion of any Class B Common Shares by
providing the corporation with signed, written instructions specifying
such additional restrictions and legending such shares as to the
existence of such restrictions.
3. CONVERSION PROCEDURE. Each conversion of Common Shares of the
corporation into shares of another class of Common Shares of the
Corporation shall be effected by the surrender of the certificate or
certificates representing the shares to be converted (the "Converting
Shares") at the principal office of the corporation (or such other
office or agency of the corporation as the corporation may designate
by written notice to the holders of common shares) at any time during
its usual business hours, together with written notice by the holder
of such Converting Shares, stating that such holder desires to convert
the Converting Shares, or a stated number of the shares represented by
such certificate or certificates, into an equal number of shares of the
class into which such shares may be converted (the "Converted Shares").
Such notice shall also state the name or names (with addresses) and
denominations in which the certificate or certificates for Converted
Shares are to be issued and shall include instructions for the delivery
thereof. Promptly after such surrender and the receipt of such written
notice, the corporation will issue and deliver in accordance with the
surrendering holder's instructions the certificate or certificates
evidencing the Converted Shares issuable upon such conversion, and the
corporation will deliver to the converting holder a certificate
representing any shares which were represented by the certificate or
certificates that were delivered to the corporation with such
conversion, but which were not converted.
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Such conversion shall be deemed to have been effected as of the
close of business on the date on which such certificate or certificates
shall have been surrendered and such notice shall have been received by
the corporation, and at such time the rights of the holder of the
Converting Shares as such holder shall cease and the person or persons
in whose name or names the certificate or certificates for the
Converted Shares are to be issued upon such conversion shall be deemed
to have become the holder or holders of record of the Converted Shares.
Upon issuance of shares in accordance with this Section C, such
Converted Shares shall be deemed to be duly authorized, validly issued,
fully paid and non-assessable.
Each holder of Class B Common Shares shall be entitled to convert
Class B Common Shares in connection with any Conversion Event if such
holder reasonably believes that such Conversion Event will be
consummated, and a written request for conversion from any holder of
Class B Common Shares to the corporation stating such holder's
reasonable belief that a Conversion Event shall occur shall be
conclusive and shall obligate the corporation to effect such
conversion in a timely manner so as to enable each such holder to
participate in such Conversion Event. The corporation will not cancel
the Class B Common Shares so converted before the 15th day following
such Conversion Event and will reserve such shares until such 15th day
for reissuance in compliance with the next sentence. If any Class B
Common Shares are converted into Class A Common Shares in connection
with a Conversion Event and such Class A Common Shares are not
actually distributed, disposed of or sold pursuant to such Conversion
Event, such Class A Common Shares shall be promptly converted back
into the same number of Class B Common Shares.
4. STOCK SPLITS; ADJUSTMENTS. If the Corporation shall in any
manner subdivide (by stock split, stock dividend or otherwise) or
combine (by reverse stock split or otherwise) the outstanding Class A
Common Shares or the Class B Common Shares, then the outstanding
shares of each other class of common shares shall be subdivided or
combined, as the case may be, to the same extent, share and share
alike, and effective provision shall be made for the protection of the
conversion rights hereunder.
In the case of any reorganization, reclassification or change of
shares of the Class A Common Shares or Class B Common Shares (other
than a change in par value or from par to no par value as a result of
a subdivision or combination), or in case of any consolidation of the
corporation with one or more corporations or a merger of the
corporation with another corporation (other than a consolidation or
merger in which the corporation is the resulting or surviving
corporation and which does not result in any reclassification or
change of outstanding Class A Common Shares or Class B Common Shares),
each holder of Class A Common Shares or Class B Common Shares shall
have the right at any time thereafter, so long as the conversion right
hereunder with respect to such share would exist had such event not
occurred, to convert such share into the kind and amount of shares of
stock and other securities and properties (including cash) receivable
upon such reorganization, reclassification, change, consolidation or
merger by a holder of the number of Class A Common Shares or Class B
Common Shares into which such Class A Common Shares or Class B Common
Shares, as the case may be, might have been converted immediately
prior to such reorganization, reclassification, change, consolidation
or merger. In the event of any such reorganization, reclassification,
change, consolidation or merger which will have the effect of causing
any Regulated Shareholder's direct or indirect ownership of shares of
capital stock of the resulting or surviving corporation immediately
following such transaction to equal or exceed 5% of the voting power
thereof (calculated as if all such Regulated Shareholder's Class B
Common Shares were converted to Class A Common Shares immediately prior
to consummation of such transaction) then provision shall be made in
the certificate of incorporation of the resulting or surviving
corporation for the protection of the conversion rights of Class A
Common Shares and Class B Common Shares that shall be applicable, as
nearly as reasonably may be, to any such other shares of stock and
other securities and property deliverable upon conversion of such
Class A Common Shares or Class B Common Shares into which such Class
A Common Shares or Class B Common Shares might have been converted
prior to such event.
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5. RESERVATION OF SHARES. The Corporation shall at all times
reserve and keep available out of its authorized but unissued Class A
Common Shares and Class B Common Shares or its treasury shares, for
the purpose of issuance upon the conversion of Class A Common Shares
and Class B Common Shares, such number of shares of such class as are
then issuable upon the conversion of all outstanding shares of Class A
Common Shares and Class B Common Shares which may be converted.
6. NO CHARGE. The issuance of certificates for shares of any class
of common shares upon conversion of shares of any other class of common
shares shall be made without charge to the holders of such shares for
any issuance tax in respect thereof or other cost incurred by the
Corporation in connection with such conversion and the related
issuance of common shares; provided, however, that the Corporation
shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issuance and delivery of any
certificate in a name other than that of the holder of the common
shares converted.
D. As used herein, the following terms shall have the meanings shown
below:
1. "AFFILIATES" shall mean with respect to any Person, any other
person, directly or indirectly controlling, controlled by or under
common control with such Person. For the purpose of the above
definition, the term "control" (including with correlative meaning,
the terms "controlling", "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction
of the management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
2. "CONVERSION EVENT" shall mean (a) any public offering or public
sale of securities of the Corporation (including a public offering
registered under the Securities Act of 1933 and a public sale pursuant
to Rule 144 of the Securities and Exchange Commission or any similar
rule then in force), (b) any sale of securities of the corporation to
a person or group of persons (within the meaning of the Securities
Exchange Act of 1934, as amended (the "1934 Act")) if, after such sale,
such person or group of persons in the aggregate would own or control
securities which possess in the aggregate the ordinary voting power to
elect a majority of the corporation's directors (provided that such
sale has been approved by the corporation's Board of Directors or a
committee thereof), (c) any sale of securities of the corporation to a
person or group of persons (within the meaning of the 1934 Act) if,
after such sale, such person or group of persons in the aggregate would
own or control securities of the corporation (excluding any Class B
Common Shares being converted and disposed of in connection with such
Conversion Event) which possess in the aggregate the ordinary voting
power to elect a majority of the corporation's directors, (d) any sale
of securities of the corporation to a person or group of persons
(within the meaning of the 1934 Act) if, after such sale, such person
or group of persons would not, in the aggregate, own, control or have
the right to acquire more than two percent (2%) of the outstanding
securities or any class of voting securities of the corporation (for
purposes of this clause, treating Class A Common Stock and Class B
Common Stock as a single class), and (e) a merger, consolidation or
similar transaction involving the corporation if, after such
transaction, a person or group of persons (within the meaning of the
1934 Act) in the aggregate would own or control securities which
possess in the aggregate the ordinary voting power to elect a majority
of the surviving corporation's directors (provided that the
transaction has been approved by the corporation's Board of Directors
or a committee thereof).
3. "PERSON" or "PERSON" shall mean an individual, a partnership, a
corporation, a trust, a joint venture, an unincorporated organization
or a government or any department or agency thereof.
4. "REGULATED SHAREHOLDER" shall mean Chemical Equity Associates
and its Affiliates.
-12-
<PAGE> 13
CERTIFICATE OF AMENDMENT
TO
AMENDED AND RESTATED ARTICLES OF INCORPORATION, AS AMENDED,
OF
CARDINAL HEALTH, INC.
Robert D. Walter, Chairman, and George H. Bennett, Jr., Secretary, of
Cardinal Health, Inc., an Ohio corporation (the "Company"), do hereby certify
that a meeting of the shareholders of the Company was duly called and held on
November 14, 1995, at which meeting a quorum of the shareholders was present in
person or by proxy, and by the affirmative vote of holders of shares entitling
them to exercise a majority of the voting power of the Company on a proposal to
amend the Company's Amended and Restated Articles of Incorporation, as amended,
the following resolution was duly adopted:
Resolved, that Section 1 of Article FOURTH of the Amended and Restated
Articles of Incorporation, as amended, of Cardinal Health, Inc. be,
and the same hereby is, deleted in its entirety and there is
substituted therefor the following:
FOURTH: Section 1. Authorized Shares. The maximum aggregate number
of shares which the corporation is authorized to have outstanding is
105,500,000, consisting of 100,000,000 common shares, without par
value ("Class A Common Shares"), 5,000,000 Class B common shares,
without par value ("Class B Common Shares") (the Class A Common Shares
and the Class B Common Shares are sometimes referred to herein
collectively as the "Common Shares"), and 500,000 nonvoting preferred
shares, without par value.
IN WITNESS WHEREOF, Robert D. Walter, Chairman, and George H. Bennett,
Jr., Secretary, of Cardinal Health, Inc., acting for and on its behalf, do
hereunto subscribe their names this 14th day of November, 1995.
/s/ ROBERT D. WALTER
------------------------------
Robert D. Walter, Chairman
/s/ GEORGE H. BENNETT, JR.
------------------------------
George H. Bennett, Jr.
-13-
<PAGE> 14
CERTIFICATE OF AMENDMENT
TO
AMENDED AND RESTATED ARTICLES OF INCORPORATION, AS AMENDED,
OF
CARDINAL HEALTH, INC.
Robert D. Walter, Chairman, and George H. Bennett, Jr., Secretary, of
Cardinal Health, Inc., an Ohio corporation (the "Company"), do hereby certify
that a meeting of the shareholders of the Company was duly called and held on
October 29, 1996, at which meeting a quorum of the shareholders was present in
person or by proxy, and by the affirmative vote of holders of shares entitling
them to exercise a majority of the voting power of the Company on a proposal to
amend the Company's Amended and Restated Articles of Incorporation, as
amended, the following resolution was duly adopted;
Resolved, that Section 1 of Article FOURTH of the Amended and Restated
Articles of Incorporation, as amended, of Cardinal Health, Inc. be,
and the same hereby is, deleted in its entirety and there is
substituted therefor the following:
FOURTH: Section 1. Authorized Shares. The maximum aggregate number
of shares which the corporation is authorized to have outstanding is
155,500,000, consisting of 150,000,000 common shares, without par
value ("Class A Common Shares"), 5,000,000 Class B common shares,
without par value ("Class B Common Shares") (the Class A Common Shares
and the Class B Common Shares are sometimes referred to herein
collectively as the "Common Shares"), and 500,000 nonvoting preferred
shares, without par value.
IN WITNESS WHEREOF, Robert D. Walter, Chairman, and George H. Bennett,
Jr., Secretary, of Cardinal Health, Inc., acting for and on its behalf, do
hereunto subscribe their names this 29th day of October, 1996.
/s/ ROBERT D. WALTER
-----------------------------------
Robert D. Walter, Chairman
/s/ GEORGE H. BENNETT, JR.
-------------------------------------
George H. Bennett, Jr., Secretary
-14-
<PAGE> 15
CERTIFICATE OF AMENDMENT
TO
AMENDED AND RESTATED ARTICLES OF INCORPORATION, AS AMENDED,
OF
CARDINAL HEALTH, INC.
Robert D. Walter, Chairman, and George H. Bennett, Jr., Secretary, of
Cardinal Health, Inc., an Ohio corporation (the "Company"), do hereby certify
that a meeting of the shareholders of the Company was duly called and held on
February 20, 1998, at which meeting a quorum of the shareholders was present in
person or by proxy, and by the affirmative vote of holders of shares entitling
them to exercise a majority of the voting power of the Company on a proposal to
amend the Company's Amended and Restated Articles of Incorporation, as amended,
the following resolution was duly adopted:
Resolved, that Section 1 of Article FOURTH of the Amended and Restated
Articles of Incorporation, as amended, of Cardinal Health, Inc. be, and
the same hereby is, deleted in its entirety and there is substituted
therefor the following:
FOURTH: Section 1. Authorized Shares. The maximum aggregate number of
shares which the corporation is authorized to have outstanding is
305,500,000 consisting of 300,000,000 common shares, without par value
("Class A Common Shares"), 5,000,000 Class B common shares, without par
value ("Class B Common Shares") (the Class A Common Shares and the
Class B Common Shares are sometimes referred to herein collectively as
the "Common Shares"), and 500,000 nonvoting preferred shares, without
par value.
IN WITNESS WHEREOF, Robert D. Walter, Chairman, and George H. Bennett,
Jr., Secretary, of Cardinal Health, Inc., acting for and on its behalf, do
hereunto subscribe their names this 20th day of February, 1998.
/s/ ROBERT D. WALTER
------------------------------
Robert D. Walter, Chairman
/s/ GEORGE H. BENNETT, JR.
------------------------------
George H. Bennett, Jr., Secretary
<PAGE> 16
CERTIFICATE OF AMENDMENT
TO AMENDED AND RESTATED ARTICLES OF INCORPORATION, AS AMENDED,
OF
CARDINAL HEALTH, INC.
Robert D. Walter, Chairman, and George H. Bennett, Jr., Secretary, of
Cardinal Health, Inc., an Ohio corporation (the "Company"), do hereby certify
that a meeting of the shareholders of the Company was duly called and held on
November 23, 1998, at which meeting a quorum of the shareholders was present in
person or by proxy, and by the affirmative vote of holders of shares entitling
them to exercise a majority of the voting power of the Company on a proposal to
amend the Company's Amended and Restated Articles of Incorporation, as amended,
the following resolution was duly adopted:
Resolved, that Section 1 of Article FOURTH of the Amended and Restated
Articles of Incorporation, as amended, of Cardinal Health, Inc. be, and
the same hereby is, deleted in its entirety and there is substituted
therefor the following:
FOURTH: Section 1. Authorized Shares. The maximum aggregate number of
shares which the corporation is authorized to have outstanding is
505,500,000 consisting of 500,000,000 common shares, without par value
("Class A Common Shares"), 5,000,000 Class B common shares, without par
value ("Class B Common Shares") (the Class A Common Shares and the
Class B Common Shares are sometimes referred to herein collectively as
the "Common Shares"), and 500,000 nonvoting preferred shares, without
par value.
IN WITNESS WHEREOF, Robert D. Walter, Chairman, and George H. Bennett,
Jr., Secretary, of Cardinal Health, Inc., acting for and on its behalf, do
hereunto subscribe their names this 23rd day of November, 1998.
/s/ Robert D. Walter
---------------------------------
Robert D. Walter, Chairman
/s/ George H. Bennett, Jr.
---------------------------------
George H. Bennett, Jr., Secretary
3
<PAGE> 1
Exhibit 3.02
RESTATED CODE OF REGULATIONS
OF
CARDINAL HEALTH, INC.
4
<PAGE> 2
TABLE OF CONTENTS
Page
----
ARTICLE 1 Meetings of Shareholders...........................................1
Section 1.1 Annual Meeting ................................................1
Section 1.2 Special Meetings...............................................1
Section 1.3 Place of Meetings..............................................1
Section 1.4 Notice of Meetings.............................................1
Section 1.5 [Reserved].....................................................1
Section 1.6 Waiver of Notice...............................................2
Section 1.7 Quorum.........................................................2
Section 1.8 Organization...................................................2
Section 1.9 Order of Business..............................................2
Section 1.10 Voting.........................................................2
Section 1.11 Proxies........................................................2
Section 1.12 Inspectors of Elections........................................3
Section 1.13 Record Date....................................................3
Section 1.14 List of Shareholders at Meeting................................3
Section 1.15 Action in Writing in Lieu of Meeting...........................3
ARTICLE 2 Board of Directors.................................................3
Section 2.1 General Powers of Board........................................3
Section 2.2 Number and Classification......................................3
Section 2.3 Compensation and Expenses......................................4
Section 2.4 Election of Directors..........................................4
Section 2.5 Term of Office.................................................4
Section 2.6 Resignations...................................................4
Section 2.7 Removal of Directors...........................................4
Section 2.8 Vacancies......................................................5
Section 2.9 Organization of Meetings.......................................5
Section 2.10 Place of Meetings..............................................5
Section 2.11 Regular Meetings...............................................5
Section 2.12 Special Meetings...............................................5
Section 2.13 Notices of Meetings............................................5
Section 2.14 Notice of Adjournment of Meeting...............................6
Section 2.15 Quorum and Manner of Acting....................................6
Section 2.16 Order of Business..............................................6
Section 2.17 Action in Writing in Lieu of Meeting...........................6
Section 2.18 Executive and Other Committees.................................6
ARTICLE 3 Officers...........................................................7
Section 3.1 Number and Titles..............................................7
Section 3.2 Election, Terms of Office, Qualifications, and Compensation....7
Section 3.3 Additional Officers, Agents, Etc...............................7
5
<PAGE> 3
Section 3.4 Removal........................................................7
Section 3.5 Resignations...................................................7
Section 3.6 Vacancies......................................................8
Section 3.7 Powers, Authority, and Duties of Officers......................8
ARTICLE 4 Shares and Their Transfer.........................................8
Section 4.1 Certificates for Shares........................................8
Section 4.2 Transfer of Shares.............................................8
Section 4.3 Regulations....................................................9
Section 4.4 Lost, Destroyed or Stolen Certificates.........................9
ARTICLE 5 Examination of Books by Shareholders...............................9
ARTICLE 6 Indemnification and Insurance......................................9
Section 6.1 Costs Incurred.................................................9
Section 6.2 Indemnification Procedure.....................................10
Section 6.3 Advance Payment of Costs......................................10
Section 6.4 Non-Exclusive.................................................10
Section 6.5 Insurance.....................................................11
Section 6.6 Survival......................................................11
Section 6.7 Successors....................................................11
ARTICLE 7 Seal..............................................................11
ARTICLE 8 Fiscal Year.......................................................11
ARTICLE 9 Control Share Acquisitions........................................11
ARTICLE 10 Amendment of Regulations........................................11
6
<PAGE> 4
ARTICLE 1
Meetings of Shareholders
Section 1.1 Annual Meeting. The annual meeting of the shareholders, for
the purpose of electing directors and transacting such other business as may
come before the meeting, shall be held on such date and at such time during the
first six months of each fiscal year of the Company as may be fixed by the board
of directors and stated in the notice of the meeting.
Section 1.2 Special Meetings. A special meeting of the shareholders may
be called by the chairman of the board, or the president, or a majority of the
directors acting with or without a meeting, or the holders of shares entitling
them to exercise twenty-five percent of the voting power of the Company entitled
to be voted at the meeting. Upon delivery to the chairman, president, or
secretary of a request in writing for a shareholders' meeting by any persons
entitled to call such meeting, the officer to whom the request is delivered
shall give notice to the shareholders of such meeting. Any such request shall
specify the purposes and the date and hour for such meeting. The date shall be
at least 14 and not more than 65 days after delivery of the request. If such
officer does not call the meeting within five days after any such request, the
persons making the request may call the meeting by giving notice as provided in
Section 1.4 or by causing it to be given by their designated representative.
Section 1.3 Place of Meetings. All meetings of shareholders shall be
held at such place or places, within or without the State of Ohio, as may be
fixed by the board of directors or, if not so fixed, as shall be specified in
the notice of the meeting.
Section 1.4 Notice of Meetings. Every shareholder shall furnish the
secretary of the Company with an address at which notices of meetings and all
other corporate notices may be served on or mailed to him. Except as otherwise
expressly required by law, notice of each shareholders' meeting, whether annual
or special, shall, not more than 60 days and at least 7 days before the date
specified for the meeting, be given by the chairman, president, or secretary or,
in case of their refusal or failure to do so, by the person or persons entitled
to call such meeting, to each shareholder entitled to notice of the meeting, by
delivering a written or printed notice personally or by mailing the notice in a
postage-prepaid envelope addressed to him or her at his or her address furnished
by him or her as above provided, or, if he or she shall not have furnished such
address, at his or her post office address last known to the sender. Except when
expressly required by law, no publication of any notice of a shareholders
meeting shall be required. If shares are transferred after notice has been
given, notice need not be given to the transferee. A record date may be fixed
for determining the shareholders entitled to notice of any meeting of
shareholders, in accordance with the provisions of Section 1.13. Every notice of
a shareholders' meeting, besides stating the time and place of the meeting,
shall state briefly the purposes of the meeting as may be specified by the
person or persons requesting or calling the meeting. Only the business provided
for in such notice shall be considered at the meeting. Notice of the adjournment
of a meeting need not be given if the time and place to which it is adjourned
are fixed and announced at the meeting.
7
<PAGE> 5
Section 1.5 [Reserved]
Section 1.6 Waiver of Notice. Any shareholder, either before or after
any meeting, may waive any notice required by law, the articles, or these
regulations. Waivers must be in writing and filed with or entered upon the
records of the meeting. Notice of a meeting will be deemed to have been waived
by any shareholder who attends the meeting either in person or by proxy, and who
does not, before or at the commencement of the meeting, protest the lack of
proper notice.
Section 1.7 Quorum. The holders of shares entitling them to exercise a
majority of the voting power of the Company entitled to vote at a meeting,
present in person or by proxy, shall constitute a quorum for the transaction of
business, except when a greater number is required by law, the articles of
incorporation, or these regulations. In the absence of a quorum at any meeting
or any adjournment of the meeting, the holders of shares entitling them to
exercise a majority of the voting power of the shareholders present in person or
by proxy and entitled to vote may adjourn the meeting from time to time. At any
adjourned meeting at which a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally called.
Section 1.8 Organization. At each shareholders meeting the chairman of
the board, or, in the chairman's absence, the president, or, in the absence of
both of them, any vice president, or, in the absence of any vice president, a
chairman chosen by the holders of shares entitling them to exercise a majority
of the voting power of the shareholders present in person or by proxy and
entitled to vote, shall act as chairman, and the secretary of the Company, or,
in the secretary's absence, any assistant secretary, or, in the absence of all
of them, any person whom the chairman of the meeting appoints, shall act as
secretary of the meeting.
Section 1.9 Order of Business. The order of business at each
shareholders meeting shall be fixed by the chairman of the meeting at the
beginning of the meeting but may be changed by the vote of the holders of shares
entitling them to exercise a majority of the voting power of the shareholders
present in person or by proxy and entitled to vote.
Section 1.10 Voting. Each holder of a share or shares of the class or
classes entitled to vote by law or the articles of incorporation shall be
entitled to one vote in person or by proxy for each such share registered in the
holder's name on the books of the Company. As provided in Section 1.12, a record
date for determining which shareholders are entitled to vote at any meeting may
be fixed. Shares of its own stock belonging to the Company shall not be voted
directly or indirectly. Persons holding voting shares in a fiduciary capacity
shall be entitled to vote the shares so held. A shareholder whose shares are
pledged shall be entitled to vote the shares standing in his or her name on the
books of the Company. Upon a demand by any shareholder present in person or by
proxy at any meeting and entitled to vote, any vote shall be by ballot. Each
ballot shall be signed by the shareholder or such shareholder's proxy and shall
state the number of shares voted by such shareholder. Otherwise, votes shall be
made orally.
Section 1.11 Proxies. Any shareholder who is entitled to attend or vote
at a shareholders meeting shall be entitled to exercise such right and any other
of his or her rights by proxy or proxies
8
<PAGE> 6
appointed by a writing signed by such shareholder, which need not be witnessed
or acknowledged. Except as otherwise specifically provided in these regulations,
actions taken by proxy shall be governed by the provisions of Section 1701.48,
Ohio Revised Code, or any future statute of like tenor or effect, including the
provisions relating to the sufficiency of the writing, duration of the validity
of the proxy, power of substitution, revocation, and all other provisions.
Section 1.12 Inspectors of Elections. Inspectors of elections may be
appointed and act as provided in Section 1701.50, Ohio Revised Code, or any
future statute of like tenor or effect.
Section 1.13. Record Date. The board of directors may fix a record date
for any lawful purpose, including without limitation the determination of
shareholders entitled to: (a) receive notice of or to vote at any meeting, (b)
receive payment of any dividend or other distribution, (c) receive or exercise
rights of purchase of, subscription for, or exchange or conversion of, shares or
other securities, subject to any contract right with respect thereto, or (d)
participate in the execution of written consents, waivers, or releases. Any such
record date shall not be more than sixty days preceding the date of such
meeting, the date fixed for the payment of any dividend or other distribution,
or the date fixed for the receipt or the exercise of rights, as the case may be.
Section 1.14 List of Shareholders at Meeting. Upon request of any
shareholder at any meeting of shareholders, there shall be produced at the
meeting an alphabetically arranged list, or classified lists, of the
shareholders of record as of the applicable record date who are entitled to
vote, showing their respective addresses and the number and classes of shares
held by them.
Section 1.15 Action in Writing in Lieu of Meeting. Any action which may
be authorized or be taken at a meeting of the shareholders may be authorized or
taken without a meeting with the affirmative vote or approval of, and in a
writing or writings signed by, all the shareholders who would be entitled to
notice of a meeting of the shareholders held for that purpose.
ARTICLE 2
Board of Directors
Section 2.1 General Powers of Board. The powers of the Company shall be
exercised, its business and affairs shall be conducted, and its property shall
be controlled by the board of directors, except as otherwise provided by law of
Ohio, the articles, or these regulations.
Section 2.2 Number and Classification. The number of directors of the
Corporation shall be thirteen (13). The number of directors may be increased or
decreased by action of the board of directors upon the vote of a majority of the
board; provided, however, that in no case shall the number of directors be fewer
than nine (9) or more than sixteen (16) without an amendment to this Section 2.2
approved in the manner specified in Article 10 of these regulations; and
provided further that no decrease in the number of directors shall have the
effect of removing any director prior to the expiration of his or her term of
office. The directors shall be divided into three classes. The term of office of
the first class shall expire at the 2000 annual meeting of shareholders, the
term of office of the second class shall expire at the 2001 annual meeting of
shareholders, and the term of
9
<PAGE> 7
office of the third class shall expire at the 2002 annual meeting of
shareholders. At each annual meeting of shareholders, directors elected to
succeed those whose terms then expire shall be elected for a term of office
expiring at the annual meeting of shareholders during the third year after their
election. In case of any increase in the number of directors (after a reduction
below sixteen), the additional directors shall be distributed among the several
classes so as to make the classes as nearly equal in number as possible.
Section 2.3 Compensation and Expenses. The directors shall be entitled
to such compensation, on a monthly or annual basis, or on the basis of meetings
attended, or on both bases, as the board of directors may from time to time
determine and establish. No director shall be precluded from serving the Company
as an officer or in any other capacity, or from receiving compensation for so
serving. Directors may be reimbursed for their reasonable expenses incurred in
the performance of their duties, including the expense of traveling to and from
meetings of the board, if such reimbursement is authorized by the board of
directors.
Section 2.4 Election of Directors. At each meeting of the shareholders
for the election of directors of a particular class at which a quorum is
present, the persons receiving the greatest number of votes shall be deemed
elected the directors of that class. Any shareholder may cumulate his or her
votes at an election of directors upon fulfillment of the conditions prescribed
in Section 1701.55, Ohio Revised Code, or any future statute of like tenor or
effect.
Section 2.5 Term of Office. Each director shall hold office until the
annual meeting of shareholders in the year of the expiration of his or her term
of office, or, if the election of directors shall not be held at that annual
meeting, until a special meeting of the shareholders for the purpose of electing
directors is held as provided in Section 1.2, or the taking of action by all the
shareholders in writing in lieu of either such meetings, and in any case until
his or her successor is elected and qualified or until his or her earlier
resignation, removal from office, or death.
Section 2.6 Resignations. Any director may resign by giving written
notice to the chairman, the president, or the secretary of the Company. Such
resignation shall take effect at the time specified therein. Unless otherwise
specified therein, the acceptance of a resignation shall not be necessary to
make it effective.
Section 2.7 Removal of Directors. All the directors, or all the
directors of a particular class, or any individual director may be removed from
office, without assigning any cause, by the affirmative vote of the holders of
record of not less than 75 percent of the shares having voting power of the
Company with respect to the election of directors, provided that unless all the
directors, or all the directors of a particular class, are removed, no
individual director shall be removed in case the votes of a sufficient number of
shares are cast against his or her removal which, if cumulatively voted at an
election of all the directors, or all the directors of a particular class, as
the case may be, would be sufficient to elect at least one director. In case of
any such removal, a new director may be elected at the same meeting for the
unexpired term of each director removed. Any director may also be removed by the
board of directors for any of the causes specified in Section 1701.58(B), Ohio
Revised Code, or any future statute of like tenor or effect.
10
<PAGE> 8
Section 2.8 Vacancies. A vacancy in the board of directors may be
filled by majority vote of the remaining directors, even though they are less
than a quorum, until the shareholders hold an election to fill the vacancy.
Shareholders entitled to elect directors may elect a director to fill any
vacancy in the board (whether or not the vacancy has previously been temporarily
filled by the remaining directors) at any shareholders meeting called for that
purpose.
Section 2.9 Organization of Meetings. At each meeting of the board of
directors, the chairman of the board, or, in his or her absence, the president,
or, in his or her absence, a chairman chosen by a majority of the directors
present, shall act as chairman. The secretary of the Company, or, if the
secretary shall not be present, any person whom the chairman of the meeting
shall appoint, shall act as secretary of the meeting.
Section 2.10 Place of Meetings. Meetings of the board shall be held at
such place or places, within or without the State of Ohio, as may from time to
time be fixed by the board of directors or as shall be specified or fixed in the
notice of the meeting.
Section 2.11 Regular Meetings. Regular meetings of the board will not
be held unless this code of regulations shall be amended to provide therefor.
Section 2.12 Special Meetings. Special meetings of the board of
directors shall be held whenever called by the chairman of the board, if any, or
by the president, or by a number of directors equal to one-third of the total
number of directors.
Section 2.13 Notices of Meetings. Every director shall furnish the
secretary of the Company with an address at which notices of meetings and all
other corporate notices may be served on or mailed to him or her. Unless waived
before, at, or after the meeting as hereinafter provided, notice of each board
meeting shall be given by the chairman, the president, the secretary, an
assistant secretary, or the persons calling such meeting, to each director in
any of the following ways:
(a) By orally informing him of the meeting in person or by
telephone not later than twelve hours before the date and time of the
meeting.
(b) By delivering written notice to him not later than one day
before the date of the meeting.
(c) By mailing written notice to him, or by sending notice to
him by telegram, cablegram, or radiogram, postage or other costs
prepaid, addressed to him at the address furnished by him to the
secretary of the Company, or to such other address as the person
sending the notice shall know to be correct. Such notice shall be
posted or dispatched a sufficient length of time before the meeting so
that in the ordinary course of the mail or the transmission of
telegrams, cablegrams, or radiograms, delivery would normally be made
to him not later than two days before the date of the meeting.
11
<PAGE> 9
Unless otherwise required by the articles of incorporation, this code of
regulations, or the laws of the State of Ohio, the notice of any meeting need
not specify the purposes of the meeting. Notice of any meeting of the board may
be waived by any director, either before, at, or after the meeting, in writing,
or by telegram, cablegram, or radiogram.
Section 2.14 Notice of Adjournment of Meeting. Notice of adjournment of
a meeting need not be given if the time and place to which it is adjourned are
fixed and announced at the meeting.
Section 2.15 Quorum and Manner of Acting. A majority of the number of
directors fixed or established pursuant to Section 2.2 as of the time of any
meeting of the board of directors must be present in person at such meeting in
order to constitute a quorum for the transaction of business, provided that
meetings of the directors may include participation by directors through any
communications equipment if all directors participating can hear each other, and
such participation in a meeting shall constitute presence at such meeting. The
act of a majority of the directors present at any meeting at which a quorum is
present shall be the act of the board of directors. In the absence of a quorum,
a majority of those present may adjourn a meeting from time to time until a
quorum is present. Notice of an adjourned meeting need not be given. The
directors shall act only as a board. Individual directors shall have no power as
such.
Section 2.16 Order of Business. The order of business at meetings of
the board shall be such as the chairman of the meeting may prescribe or follow,
subject, however, to his or her being overruled with respect thereto by a
majority of the members of the board present.
Section 2.17 Action in Writing in Lieu of Meeting. Any action which may
be authorized or taken at a meeting of the directors may be authorized or taken
without a meeting with the affirmative vote or approval of, and in a writing or
writings signed by, all the directors.
Section 2.18 Executive and Other Committees. The directors may create
and from time to time abolish or reconstitute an executive committee and any
other committee or committees of directors each to consist of not less than
three directors, and may delegate to any such committee or committees any or all
of the authority of the directors, however conferred, other than that of filling
vacancies in the board of directors or in any committee of directors. Each such
committee shall serve at the pleasure of the directors, and shall act only in
the intervals between meetings of the board of directors, and shall be subject
to the control and direction of the board of directors. The directors may adopt
or authorize the committees to adopt provisions with respect to the government
of any such committee or committees which are not inconsistent with applicable
law, the articles of incorporation of the Company, or these regulations. An act
or authorization of any act by any such committee within the authority properly
delegated to it by the directors shall be as effective for all purposes as the
act or authorization of the directors. Any right, power, or authority conferred
in these regulations to the "directors" or to the "board of directors" shall
also be deemed conferred upon each committee or committees of directors to which
any such right, power, or authority is delegated (expressly, or by general
delegation, or by necessary implication) by the board of directors.
12
<PAGE> 10
ARTICLE 3
Officers
Section 3.1 Number and Titles. The officers of the Company shall be a
chairman of the board, a president, one or more vice presidents, if needed, a
secretary, one or more assistant secretaries, if needed, a treasurer, one or
more assistant treasurers, if needed, and such other officers and assistant
officers as the board may deem necessary. The board shall have the discretion to
determine from time to time the number of vice presidents, if any, the Company
shall have, whether or not assistant secretaries and assistant treasurers are
needed, and, if so, the number of assistant secretaries and assistant treasurers
the Company shall have. Furthermore, if there is more than one vice president,
the board may, in its discretion, establish designations for the vice
presidencies so as to distinguish among them as to their functions or their
order, or both. Any two or more offices may be held by the same person, but no
officer shall execute, acknowledge, or verify any instrument in more than one
capacity if such instrument is required by law, the articles, or these
regulations to be executed, acknowledged, or verified by two or more officers.
Section 3.2 Election, Terms of Office, Qualifications, and
Compensation. The officers shall be elected by the board of directors. Each
shall be elected for an indeterminate term and shall hold office during the
pleasure of the board of directors. The board of directors may hold annual
elections of officers; in that event, each such officer shall hold office until
his or her successor is elected and qualified unless he or she is removed
earlier by the board of directors. The chairman of the board shall be a
director, but no other officer need be a director. The other qualifications of
all officers shall be such as the board of directors may establish. The board of
directors shall fix the compensation, if any, of each officer.
Section 3.3 Additional Officers, Agents, Etc. In addition to the
officers mentioned in Section 3.1, the Company may have such other officers,
agents, and committees as the board of directors may deem necessary and may
appoint, each of whom or each member of which shall hold office for such period,
have such authority, and perform such duties as may be provided in these
regulations or as may, from time to time, be determined by the board. The board
of directors may delegate to any officer or committee the power to appoint any
subordinate officer, agents, or committees. In the absence of any officer, or
for any other reason the board of directors may deem sufficient, the board of
directors may delegate, for the time being, the powers and duties, or any of
them, of such officer to any other officer, or to any director.
Section 3.4 Removal. Any officer may be removed, either with or without
cause, at any time, by the board of directors at any meeting, the notices (or
waivers of notices) of which shall have specified that such removal action was
to be considered. Any officer appointed by an officer or committee to which the
board shall have delegated the power of appointment may be removed, either with
or without cause, by the committee or superior officer (including successors)
who made the appointment, or by any committee or officer upon whom such power of
removal may be conferred by the board of directors.
Section 3.5 Resignations. Any officer may resign at any time by giving
written notice to the board of directors, the chairman, the president, or the
secretary. Any such resignation shall take
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effect at the time specified therein. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 3.6 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification, or otherwise shall be filled in the
manner prescribed for regular appointments or elections to such office.
Section 3.7 Powers, Authority, and Duties of Officers. Officers of the
Company shall have the powers and authority conferred and the duties prescribed
by law, in addition to those specified or provided for in these regulations and
such other powers, authority, and duties as may be determined by the board of
directors from time to time.
ARTICLE 4
Shares and Their Transfer
Section 4.1 Certificates for Shares. Every owner of one or more shares
in the Company shall be entitled to a certificate or certificates, which shall
be in such form as may be approved by the board of directors, certifying the
number and class of shares in the Company owned by him. The certificates for the
respective classes of such shares shall be numbered in the order in which they
are issued and shall be signed in the name of the Company by the chairman or the
president and the secretary; provided that, if such certificates are
countersigned by a transfer agent or registrar, the signatures of such officers
upon such certificates may be facsimiles, stamped, or printed. If an officer who
has signed or whose facsimile signature has been used, stamped, or printed on
any certificates ceases to be such officer because of death, resignation or
other reason before such certificates are delivered by the Company, such
certificates shall nevertheless be conclusively deemed to be valid if
countersigned by any such transfer agent or registrar. A record shall be kept of
the name of the owner or owners of the shares represented by each such
certificate and the number of shares represented thereby, the date thereof, and
in case of cancellation, the date of cancellation. Every certificate surrendered
to the Company for exchange or transfer shall be cancelled and no new
certificate or certificates shall be issued in exchange for any existing
certificates until such existing certificates shall have been so cancelled,
except in cases provided for in Section 4.4.
Section 4.2 Transfer of Shares. Any certificate for shares of the
Company shall be transferable in person or by attorney upon the surrender of the
certificate to the Company or any transfer agent for the Company (for the class
of shares represented by the certificate surrendered) properly endorsed for
transfer and accompanied by such assurances as the Company or its transfer agent
may require as to the genuineness and effectiveness of each necessary
endorsement. The person in whose name any shares stand on the books of the
Company shall, to the full extent permitted by law, be conclusively deemed to be
the unqualified owner and holder of the shares and entitled to exercise all
rights of ownership for all purposes relating to the Company. Neither the
Company nor any transfer agent of the Company shall be required to recognize any
equitable interest in, or any claim to, any such shares on the part of any other
person, whether disclosed on the certificate
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or any other way, nor shall they be required to see to the performance of any
trust or other obligation.
Section 4.3 Regulations. The board of directors may make such rules and
regulations as it may deem expedient or advisable, not inconsistent with these
regulations, concerning the issue, transfer, and registration of certificates
for shares. It may appoint one or more transfer agents or one or more
registrars, or both, and may require all certificates for shares to bear the
signature of either or both.
Section 4.4 Lost, Destroyed or Stolen Certificates. A new share
certificate or certificates may be issued in place of any certificate
theretofore issued by the Company which is alleged to have been lost, destroyed,
or wrongfully taken upon: (a) the execution and delivery to the Company by the
person claiming the certificate to have been lost, destroyed, or wrongfully
taken of an affidavit of that fact in form satisfactory to the Company,
specifying whether or not the certificate was endorsed at the time of such
alleged loss, destruction or taking, and (b) the receipt by the Company of a
surety bond, indemnity agreement, or any other assurances satisfactory to the
Company and to all transfer agents and registrars of the class of shares
represented by the certificate against any and all losses, damages, costs,
expenses, liabilities or claims to which they or any of them may be subjected by
reason of the issue and delivery of such new certificate or certificates or with
respect to the original certificate.
ARTICLE 5
Examination of Books by Shareholders
The board of directors may make reasonable rules and regulations
prescribing under what conditions the books, records, accounts, and documents of
the Company, or any of them, shall be open to the inspection of the
shareholders. No shareholder shall be denied any right which is conferred by
Section 1701.37, Ohio Revised Code, or any other applicable law to inspect any
book, record, account, or document of the Company. An original or duplicate
stock ledger showing the names and addresses of the shareholders and the number
and class of shares issued or transferred of record to or by them from time to
time shall at all times during the usual hours for business be open to the
examination of every shareholder at the principal office or place of business of
the Company in the State of Ohio.
ARTICLE 6
Indemnification and Insurance
Section 6.1 Costs Incurred. The Company shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, by reason of the fact that he or she is or was
a director, officer, employee, or agent of the Company, or is or was serving at
the request of the Company as a director, trustee, officer, employee, or agent
of another corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust, or other enterprise,
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against expenses, including attorneys' fees, judgments, fines, and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit, or proceeding provided that: (a) he or she acted in good faith and
in a manner he or she reasonably believed to be in or not opposed to the best
interests of the Company; (b) with respect to any criminal action or proceeding,
he or she had no reasonable cause to believe his or her conduct was unlawful;
and (c) in any action or suit by or in the right of the Company, no
indemnification shall be made with respect to any amounts paid in settlement or
with respect to any claim, issue, or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the performance of
his or her duty to the Company unless and only to the extent that the Court of
Common Pleas or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the Court of Common Pleas or such
other court shall deem proper. The termination of any action, suit, or
proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo
contendere or its equivalent, shall not of itself create a presumption that the
person did not act in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the Company, and with
respect to any criminal action or proceeding, that he or she had reasonable
cause to believe that his or her conduct was unlawful.
Section 6.2 Indemnification Procedure. Any indemnification under
Section 6.1 shall be made by the Company only if and as authorized in the
specific case upon a determination that indemnification of the director,
trustee, officer, employee, or agent is proper in the circumstances because he
or she has met the applicable standard of conduct set forth in Section 6.1. Such
determination shall be made by one of the following methods: (a) by a majority
vote of a quorum consisting of directors of the Company who were not and are not
parties to or threatened with any such action, suit, or proceeding; or (b) if
such a quorum is not obtainable or if a majority vote of a quorum of
disinterested directors so directs, in a written opinion by independent legal
counsel retained by the Company, other than an attorney, or a firm having
associated with it an attorney, who has been retained by or who has performed
services for the Company or any person to be indemnified within the past five
years; or (c) by the shareholders; or (d) by the Court of Common Pleas of
Franklin County, Ohio, or the court in which such action, suit, or proceeding
was brought.
Section 6.3 Advance Payment of Costs. Expenses, including attorneys'
fees, incurred in defending any action, suit, or proceeding referred to in
Section 6.1 may be paid by the Company in advance of the final disposition of
such action, suit, or proceeding as authorized by the directors in the specific
case upon receipt of an undertaking by or on behalf of the director, trustee,
officer, employee, or agent to repay such amount unless it shall ultimately be
determined that he or she is entitled to be indemnified by the Company as
authorized in this Article.
Section 6.4 Non-Exclusive. The indemnification authorized in this
Article shall not be deemed exclusive of any other rights to which persons
seeking indemnification may be entitled under any agreement, vote of
shareholders or disinterested directors, or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office.
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Section 6.5 Insurance. The Company may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee, or agent of
the Company, or is or was serving at the request of the Company as a director,
trustee, officer, employee, or agent of another corporation, domestic or
foreign, nonprofit or for profit, partnership, joint venture, trust, or other
enterprise against any liability asserted against him or her and incurred by him
or her in any such capacity or arising out of his or her status as such, whether
or not the Company would have the power to indemnify him or her against such
liability under this Article or under Chapter 1701, Ohio Revised Code.
Section 6.6 Survival. The indemnification authorized in this Article
shall continue as to a person who has ceased to be a director, trustee, officer,
employee, or agent.
Section 6.7 Successors. The indemnification authorized in this Article
shall inure to the benefit of the heirs, executors, and administrators of any
person entitled to indemnification under this Article.
ARTICLE 7
Seal
The board of directors may adopt and alter a corporate seal and use the
same or a facsimile thereof, but failure to affix the corporate seal, if any,
shall not affect the validity of any instrument.
ARTICLE 8
Fiscal Year
The fiscal year of the Company shall be fixed and may be changed from
time to time by the board of directors.
ARTICLE 9
Control Share Acquisitions
Section 1701.831, Ohio Revised Code, shall not apply to control share
acquisitions of shares of the Company.
ARTICLE 10
Amendment of Regulations
These regulations may be amended or new regulations may be adopted: (a)
at any meeting of the shareholders held for such purpose by the affirmative vote
of the holders of record of shares entitling them to exercise a majority of the
voting power on such proposal, except that the affirmative vote of the holders
of record of not less than 75% of the shares having voting power
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with respect to any such proposal shall be required to amend, change, adopt any
provision inconsistent with, or repeal Sections 2.2, 2.5, or 2.7 or to amend,
change, or repeal the provisions of this Article 10 establishing the voting
requirements for amending, changing, adopting any provision inconsistent with,
or repealing Sections 2.2, 2.5, or 2.7; or (b) without a meeting of the
shareholders, by the written consent of the holders of record of shares
entitling them to exercise a majority of the voting power on such proposal,
except that the written consent of the holders of record of not less than 75
percent of the shares having voting power with respect to any such proposal
shall be required to amend, change, adopt any provision inconsistent with, or
repeal Sections 2.2, 2.5, or 2.7 or to amend, change, or repeal the provisions
of this Article 10 establishing the consent requirements for amending,
changing, adopting any provisions inconsistent with, or repealing Sections 2.2,
2.5, or 2.7. If any amendment or new regulations are adopted without a meeting
of the shareholders, the secretary shall mail a copy of the amendment or new
regulations to each shareholder who would have been entitled to vote on the
proposal but who did not participate in the adoption of the amendment or new
regulations.
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