CODE OF REGULATIONS
OF
THE O'GARA COMPANY
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
persons holding fifty percent of all voting power of the Corporation and
entitled to vote at such 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 either by personal
delivery or mail to the shareholders at their respective addresses as they
appear on the records of the Corporation. 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.
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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.
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 the date next preceding the day on which notice is given, or the date
next preceding the day on which the meeting is held, as the case may be.
Section 6. Quorum and Voting.
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.
In any other matter brought before any meeting of shareholders, the
affirmative vote of the holders of shares representing a majority of the votes
actually cast shall be the act of the shareholders 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 7. Organization of Meetings.
7.1 Presiding Officer. The Chairman of the Board, or in the Chairman of the
Board's 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.
7.2 Minutes. The Secretary of the Corporation, or in the Secretary's
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.
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Section 8. Voting.
Except as provided by statute or in the Articles, every shareholder
entitled to vote shall be entitled to cast one vote on each proposal submitted
to the meeting for each share held of record on the record date for the
determination of the shareholders entitled to vote at the meeting.
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
the person's rights, by proxy or proxies appointed by a writing signed by such
person, or by his duly authorized attorney which may be transmitted physically
or by facsimile.
Section 10. 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 upon 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. 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)
and those who have been nominated at such meeting by a shareholder who has
complied with the procedures set forth in this Section 2. A shareholder may make
a nomination for the office of director only if such shareholder has first
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delivered or sent by certified mail, return receipt requested, to the Secretary
of the Corporation notice in writing at least five and no more than thirty days
prior to such meeting of shareholders, which notice shall set forth or be
accompanied by (a) the name and residence of such shareholder; (b) a
representation that such shareholder is a holder of record of voting stock of
the Corporation and intends to appear in person or by proxy at such meeting to
nominate the person or persons specified in the notice; (c) the name and
residence of each such nominee; and (d) the consent of such nominee to serve as
director if so elected. The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be disregarded.
2.2 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 the affirmative vote of the holders of a majority
of the shares represented at the meeting and entitled to vote on such proposal.
In addition, the number of Directors may be fixed or changed by action of the
Directors at any meeting of Directors 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.
2.3 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 a Director's successor has been elected or until a
Director's 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.
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Section 4. Meetings of Directors.
4.1 Regular Meetings. A regular meeting of the Board of Directors shall be
held immediately following the adjournment of the meeting of shareholders at
which Directors are elected. The holding of such shareholders' meeting shall
constitute notice of such Directors' meeting and such meeting shall be held
without further notice. Other regular meetings 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 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 shall be given to each
Director by personal delivery, telephone, facsimile transmission or mail at
least forty-eight hours before the meeting, which notice need not specify the
purpose of the meeting.
Section 5. Quorum and Voting.
At any meeting of Directors, not less than one-half of the whole authorized
number of Directors is necessary to constitute a quorum for such meeting, except
that a majority of the remaining Directors in office 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 Regulations.
Section 6. Committees.
6.1 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 three directors unless a lesser number
is allowed by law. Each such committee and each member thereof shall serve at
the pleasure of the Board.
6.2 Executive Committee. In particular, the Board of Directors may create
from its membership and define the powers and duties of an Executive
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Committee. During the intervals between meetings of the Board of Directors, the
Executive Committee shall possess and may exercise all of the powers of the
Board of Directors in the management and control and the business of the
Corporation to the extent permitted by law. All action taken by the Executive
Committee shall be reported to the Board of Directors at its first meeting
thereafter.
6.3 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 7. 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 8. 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 the Director's expenses in connection with attending any Board or committee
meeting.
Section 9. Relationship with Corporation.
Directors shall not be barred from providing professional or other services
to the Corporation. No contract, action or transaction shall be void or voidable
with respect to the Corporation for the reason that it is between or affects the
Corporation and one or more of its Directors, or between or affects the
Corporation and any other person in which one or more of its Directors are
directors, trustees or officers or have a financial or personal interest, or for
the reason that one or more interested Directors participate in or vote at the
meeting of the Directors or committee thereof that authorizes such contract,
action or transaction, if in any such case any of the following apply:
(i) the material facts as to the Director's relationship or interest
and as to the contract, action or transaction are disclosed or are known to the
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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;
(ii) the material facts as to the Director's relationship or interest
and as to the contract, action or transaction are disclosed or are known to the
shareholders entitled to vote thereon and the contract, action or transaction is
specifically approved at a meeting of the shareholders held for such purpose by
the affirmative vote of the holders of shares entitling them to exercise a
majority of the voting power of the Corporation held by persons not interested
in the contract, action or transaction; or
(iii) 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.
ARTICLE III
Officers
Section 1. General Provisions.
The Board of Directors shall elect a Chairman of the Board, a President, a
Secretary, a Treasurer, one or more Vice Presidents, and such other officers and
assistant officers as the Board may from time-to-time deem necessary. The
Chairman of the Board, if any, shall be a Director, but none of the other
officers needs to be a Director. Any two or more offices may be held by the same
person, but no officer shall execute, acknowledge or verify any instrument in
more than one capacity if such instrument is required to be executed,
acknowledged or verified by two or more officers.
Section 2. Powers and Duties.
All officers, as between themselves and the Corporation, shall respectively
have such authority and perform such duties as are customarily incident to their
respective offices, and as may be specified from time to time by the Board of
Directors regardless of whether such authority and duties are customarily
incident to such office. In the absence of any officer of the Corporation, or
for any other reason the Board of Directors may deem sufficient, any or all of
the powers or duties of such officer 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.
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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 and, unless sooner removed by the Board of Directors,
until the meeting of the Board of Directors following the date of election of
Directors and until his or her successor is elected and qualified.
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 one or more
officers or Directors as they determine.
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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 such person is or was a director or officer of the Corporation or
that, being or having been such a director or officer of the Corporation, such
person is or was serving at the request of an executive officer of the
Corporation as a director, officer, partner, 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"), whether the basis of such proceeding
is alleged action in an official capacity as such a director, officer, partner,
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, 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, employee, or agent
and shall inure to the benefit of the indemnitee's heirs, executors, and
administrators. Except as provided in Section 2 with respect to proceedings
seeking to enforce rights to indemnification, the Corporation shall indemnify
any such indemnitee in connection with a proceeding (or part thereof) initiated
by such indemnitee only if such proceeding (or part thereof) was authorized or
ratified by the Board of Directors of the Corporation.
The right to indemnification conferred in this 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 incurred by an indemnitee in such person's capacity as a director,
officer or employee (and not in any other capacity in which service was or is
rendered by such indemnitee including, without limitation, service to an
employee benefit plan) 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
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by clear and convincing evidence in a court of competent jurisdiction that such
indemnitee's 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 or public
policy.
Section 2. Right of Indemnitee to Bring Suit.
If a claim under Section 1 is not paid in full by the Corporation within
sixty 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 not so entitled. 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.
Notwithstanding any amendment to or repeal of this Article IV, or of any of
the procedures established by the Board of Directors pursuant to Section 7, 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.
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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.
Section 4. Insurance, Contracts, and Funding.
The Corporation may maintain insurance, at its expense, to protect itself
and any director, officer, employee, or agent of the Corporation or another
corporation, partnership, joint venture, trust, or other enterprise against any
expense, liability, or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability, or loss 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.
Section 5. Persons Serving Other Entities.
Any person who is or was a director, officer, or employee of the Corporation who
is or was serving (i) as a director or officer of another corporation of which a
majority of the shares entitled to vote in the election of its directors is held
by the Corporation or a wholly-owned subsidiary of the Corporation, or (ii) in
an executive or management capacity in a partnership joint venture, trust,
limited liability company or other enterprise of which the Corporation or a
wholly-owned subsidiary of the Corporation is a general partner or member or has
a majority ownership shall be deemed to be so serving at the request of an
executive officer of the Corporation and entitled to indemnification and
advancement of expenses under Section 1.
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Section 6. 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 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 and officers of the
Corporation; provided, however, that an undertaking shall be made by an employee
or agent only if required by the Board of Directors.
Section 7. 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
procedure, shall be set forth in an appendix to these Code of 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. If an amendment is adopted by written consent the Secretary
shall mail a copy of such amendment to each shareholder who would be entitled to
vote thereon and did not participate in the adoption thereof. This Code of
Regulations may also be amended by the affirmative vote of a majority of the
Directors to the extent permitted by Ohio law at the time of such amendment.
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