II-VI INCORPORATED
BY-LAWS, as Amended
August 10, 2002
ARTICLE I
MEETING OF SHAREHOLDERS
Section 1.01. ANNUAL MEETINGS; NOTICE. An annual
meeting of the shareholders shall be held each year at such
time and place within or without the Commonwealth of
Pennsylvania as may be designated by the Board of Directors.
Written notice of the annual meeting shall be given at
least five (5) days prior to the meeting to each shareholder
of record entitled to vote thereat, except in the instance
where the meeting will consider a fundamental change in the
corporation as defined in Chapter 19 of the Pennsylvania
Business Corporation Law of 1988 in which case notice shall
be given at least ten (10) days prior to the meeting. Any
business may be transacted at the annual meeting,
irrespective of whether the notice of such meeting contains
a reference thereto, except as otherwise expressly required
herein or by law.
Section 1.02. SPECIAL MEETINGS; NOTICE. Special
meetings of the shareholders may be called at any time, for
the purpose or purposes set forth in the call, by the
Chairman or by the Board of Directors by delivering a
written request to the Secretary, such meeting to be held
not more than sixty (60) days after receipt of the request.
Special meetings of the shareholders shall be held at such
place as may be designated by the Board of Directors, or if
not so designated, at the principal office of the
corporation. Except as otherwise provided in Section
1.03(b) of these By-laws, written notice of special meetings
specifying the place, day, and hour of the meeting and the
general nature of the business to be transacted shall be
given at least five (5) days prior to the meeting to each
shareholder entitled to vote thereat, except in the instance
where the meeting will consider a fundamental change in the
corporation as defined in Chapter 19 of the Pennsylvania
Business Corporation Law of 1988 in which case notice shall
be given at least ten (10) days prior to the meeting. No
business may be transacted at any special meeting other than
that the general nature of which has been stated in the
notice of meeting, and business which is germane thereto.
Section 1.03. ORGANIZATION AND MANNER OF ACTING. (a)
PROXIES: Every shareholder entitled to vote at a meeting of
the shareholders or to express consent or dissent to
corporate action in writing without a meeting may authorize
another person or persons to act for him/her/it by proxy.
Every proxy shall be executed or authenticated by the
shareholder or by his/her/its duly authorized attorney-in-
fact and filed with or transmitted to the Secretary of the
corporation or its designated agent. A shareholder or
his/her/its duly authorized attorney-in-fact may execute or
authenticate a writing or transmit an electronic message
authorizing another person to act for him/her/it by proxy.
A telegram, telex, cablegram, datagram, e-mail, Internet
communication or other means of electronic transmission from
a shareholder or attorney-in-fact, or a photographic,
facsimile or similar reproduction of a writing executed by a
shareholder or attorney-in-fact shall be treated as properly
executed or authenticated if it sets forth or utilizes a
confidential and unique identification number or other mark
furnished by the corporation to the shareholder for purposes
of a particular meeting or transaction. A proxy, unless
coupled with an interest, shall be revocable at will,
notwithstanding any other agreement or any provision in the
proxy to the contrary, but the revocation of a proxy shall
not be effective until notice thereof has been given to the
Secretary of the corporation or its designated agent in
writing or by electronic transmission. An unrevoked proxy
shall not be valid after three years from the date of its
execution, authentication or transmission unless a longer
time is expressly provided therein. A proxy shall not be
revoked by the death or incapacity of the maker unless,
before the vote is counted or the authority is exercised,
written notice of the death or incapacity is given to the
Secretary of the corporation or its designated agent. (b)
QUORUM: A shareholders' meeting duly called shall not be
organized for the transaction of business unless a quorum is
present. At any meeting and except as otherwise provided by
law, the presence in person or by proxy of shareholders
entitled to cast at least a majority of the votes which all
shareholders are entitled to cast on the particular matter
shall be necessary and sufficient to constitute a quorum for
the purpose of considering such matter. The shareholders
present at a duly organized meeting can continued to do
business until adjournment, notwithstanding the withdrawal
of enough shareholders to leave less than a quorum. If a
meeting cannot be organized because a quorum has not
attended, those present may adjourn the meeting from day to
day to such time and place as they may determine by vote of
shareholders entitled to cast a majority of the votes
present, until a quorum as aforesaid shall be present at any
such reconvened meeting. When a meeting is adjourned, it
shall not be necessary to give any notice of the adjourned
meeting or of the business to be transacted at the adjourned
meeting, other than by announcement at the meeting at which
such adjournment is taken unless the Board of Directors
fixes a new record date. At any such adjourned meeting at
which a quorum is present or represented, any business may
be transacted which might have been transacted at the
meeting as originally noticed. The determination of
shareholders entitled to notice of and to vote at a meeting
of shareholders shall apply to any adjournment of that
meeting unless the Board of Directors fixes a new record
date. (c) VOTING: Unless otherwise provided in the
Articles of Incorporation, these By-laws or by law, every
shareholder of record shall be entitled to one vote for
every share standing in his/her name on the books of the
corporation. Elections of Directors need not be by ballot,
except upon demand by a shareholder made at the election and
before voting begins. In all elections of Directors, voting
shall be conducted according to the principles of cumulative
voting. Except as provided in the Articles of
Incorporation, resolutions of the shareholders shall be
adopted, and any action of the shareholders at a meeting
upon any matter shall be taken and be valid, only with the
affirmative vote of shareholders entitled to cast at least a
majority of the votes which all shareholders present at the
meeting are entitled to cast, except as otherwise provided
by law. (d) PRESIDING OFFICER, SECRETARY: The Chairman of
the Board, or in his/her absence or if such office is vacant
the President, shall preside, and the Secretary shall take
the minutes, at all meetings of the shareholders. In the
absence of the presiding officer hereinabove designated, the
presiding officer shall be designated by the Board of
Directors, or if not so designated, selected by the
shareholders present; and in the absence of the Secretary,
the presiding officer shall designate any person to take the
minutes of the meeting. (e) MEETING BY TELEPHONE: One or
more of the shareholders may participate in a meeting of the
shareholders by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other.
Section 1.04. CONSENT OF SHAREHOLDERS IN LIEU OF
MEETING. Any action which may be taken at a meeting of the
shareholders or of a class of shareholders may be taken
without a meeting if, prior or subsequent to the action, a
consent or consents in writing, setting forth the action so
taken, shall be signed by all of the shareholders who would
be entitled to vote at a meeting for such purpose and shall
be filed with the Secretary of the corporation.
Section 1.05. VOTING LIST. The officer or agent
having charge of the transfer books for the shares of the
corporation shall make, for each meeting of shareholders, a
complete list of the shareholders entitled to vote at the
meeting, arranged in alphabetical order, with the address of
and the number of shares held by each. The list shall be
produced and kept open at the time and place of the meeting,
and shall be subject to inspection by any shareholder during
the whole time of the meeting. If the corporation has 5,000
or more shareholders, the corporation may, in lieu of making
such list, make such information available by any other
means.
Section 1.06. DETERMINATION OF SHAREHOLDERS OF
RECORDS. The Board of Directors may fix a time, not more
than ninety days before the date of any meeting of the
shareholders or the date fixed for the payment of any
dividend or distribution, or the date for the allotment of
rights, or the date when any change or conversion or
exchange of shares will be made or go into effect, as a
record date for the determination of the shareholders
entitled to notice of, or to vote at, any such meeting, or
entitled to receive payment of any such dividend or
distribution, or to receive any such allotment of rights, or
to exercise the rights in respect of any such change,
conversion or exchange of shares. In such case, only such
shareholders as shall be shareholders of record on the date
so fixed shall be entitled to notice of, or to vote at, such
meeting, or to receive payment of such dividend, or to
receive such allotment of rights, or to exercise such
rights, as the case may be, notwithstanding any transfer of
any shares on the books of the corporation after the record
date fixed. Unless a record date is fixed by the Board of
Directors for the determination of shareholders entitled to
receive notice of, or to vote at, a shareholders' meeting,
transferees of shares which are transferred on the books of
the corporation within ten days next preceding the date of
such meeting shall not be entitled to notice of, or to vote
at, such meeting. The Board of Directors may adopt a
procedure whereby a shareholder of the corporation may
certify in writing to the corporation that all or a portion
of the shares requested in the name of the shareholder are
held for the account of a specified person or persons.
Section 1.07. JUDGES OF ELECTION OR VOTE. In advance
of any meeting of shareholders, the Board of Directors may
appoint judges of election, who need not be shareholders, to
act at such meeting or any adjournment thereof. If judges
of election be not so appointed, the chairman of any such
meeting may, and on the request of any shareholder or
his/her proxy shall, make such appointment at the meeting.
The number of judges shall be one or three. If appointed at
a meeting on the request of one or more shareholders or
proxies, the majority of shares present and entitled to vote
shall determine whether one or three judges are to be
appointed. No person who is a candidate for office shall
act as a judge. In case any person appointed as judge fails
to appear or fails or refuses to act, the vacancy may be
filled by appointment made by the Board of Directors in
advance of the convening of the meeting, or at the meeting
by the person or officer acting as chairman of the meeting.
The judges of election shall determine the number of shares
outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, the
authenticity, validity, and effect of proxies, receive votes
or ballots, hear and determine all challenges and questions
in any way arising in connection with the right to vote,
count and tabulate all votes, determine the result, and do
such acts as may be proper to conduct the election or vote
with fairness to all shareholders. The judges of election
shall perform their duties impartially, in good faith, to
the best of their ability, and as expeditiously as is
practical. If there be three judges of election, the
decision, act or certificate of a majority shall be
effective in all respects as the decision, act or
certificate of all. On request of the chairman of the
meeting, or of any shareholder or his/her proxy, the judges
shall make a report in writing of any challenge or questions
or matter determined by them, and execute a certificate of
any fact found by them. Any report or certificate made by
them shall be prima facie evidence of the facts stated
therein.
ARTICLE II
DIRECTORS
Section 2.01. NUMBER, ELECTION AND TERM OF OFFICE.
The number of Directors shall be at least five (5) and not
more than nine (9) Directors, the exact number to be set
from time to time by resolution of the Board of Directors.
Until otherwise provided by resolution of the Board of
Directors, the Board shall consist of six (6) Directors.
Commencing with the annual meeting of the shareholders first
following the adoption of these By-laws by the Board of
Directors, the Board of Directors shall be divided into
three classes in respect to term of office. Each class
shall be as nearly equal in number as possible The term of
office of Directors of the first class shall expire at the
annual meeting of the shareholders in the first year
following their election; the term of office of Directors of
the second class shall expire at the annual meeting of the
shareholders in the second year following their election;
the term of office of Directors of the third class shall
expire at the annual meeting of the shareholders in the
third year following their election. Upon the expiration of
the terms of office of the Directors as classified above,
their successors shall be elected for the term of three
years, so that, as nearly as possible, one-third (1/3) of
the number of Directors of the corporation shall be elected
annually. Directors shall be natural persons of full age,
but need not be residents of Pennsylvania or shareholders of
the corporation.
Section 2.02. ORGANIZATION MEETING OR ANNUAL MEETING;
NOTICE. An organization meeting, or annual meeting of the
newly elected Board of Directors shall be held each year at
the same place as and promptly after the annual meeting of
shareholders. At such meeting, the Board of Directors shall
organize itself and elect the executive officers of the
corporation for the ensuing year, and may transact any other
business. Notice of the organization meeting of the Board
or of the business to be transacted thereat shall not be
required to be given, except as otherwise expressly required
herein or by law.
Section 2.03. REGULAR MEETINGS; NOTICE. Regular
meetings of the Board of Directors shall be held at such
time and place as shall be designated by the Board from time
to time. Notice of such regular meetings of the Board shall
not be required to be given, except as otherwise expressly
required herein or by law, except that wherever the time or
place of regular meetings shall be initially fixed or
changed, notice of such action shall be given promptly by
telephone or otherwise to each Director not participating in
such action.
Section 2.04. SPECIAL MEETINGS. Special meetings of
the Board of Directors may be called at any time by the
Board itself by vote at a meeting, or by any Director, or by
the Chairman to be held at such place and day and hour and
for such purposes as shall be specified by the person or
persons calling the meeting in an oral or written notice at
least one hour prior to the meeting. Any business may be
transacted at a special meeting, irrespective of whether the
notice of such meeting contains a reference thereto, except
as otherwise expressly required herein or by law.
Section 2.05. ORGANIZATION AND MANNER OF ACTING. At
all meetings of the Board of Directors, the presence of at
least a majority of the Directors in office shall be
necessary and sufficient to constitute a quorum for the
transaction of business and the acts of a majority of the
Directors present at a meeting at which the quorum is
present shall be the acts of the Board of Directors. If a
quorum is not present at any meeting, the meeting may be
adjourned from time to time by a majority of the Directors
present, until a quorum as aforesaid shall be present; but
notice of the time and place to which such meeting is
adjourned shall be given to any Director not present on at
least the day prior to the date of reconvening. Resolutions
of the Board shall be adopted, and any action of the Board
at a meeting upon any matter shall be taken and be valid,
with the affirmative vote of at least a majority of the
Directors present at a meeting duly convened, except as
otherwise expressly required herein or by law. The Chairman
of the Board, or in his/her absence or if such office is
vacant the President, shall preside at all meetings of the
Board. The Secretary shall take the minutes at all meetings
of the Board. In the absence of the presiding officer
hereinabove designated, the Directors present shall select a
member of the Board to preside; and in the absence of the
Secretary, the presiding officer shall designate any person
to take the minutes of the meeting.
Section 2.06. RESIGNATIONS. Any Director may resign
by submitting to the Chairman of the Board or the President
his/her resignation, which (unless otherwise specified
therein) need not be accepted to make it effective and shall
be effective immediately upon its receipt by such officer.
Section 2.07. REMOVAL OF DIRECTORS. (a) By action of
the shareholders: The entire Board of Directors, or a class
of the Board, where the Board is classified with respect to
the power to elect Directors, or any individual Director may
be removed from office at any time without assigning any
cause therefor, by the vote of shareholders as provided by
the Articles of Incorporation. In case the Board, or such a
class of the Board, or any one or more Directors be so
removed, new Directors may be elected at the same meeting.
Unless the entire Board or a class of the Board be removed,
not more than one Director at a time may be removed by any
one vote of the shareholders. No individual Director shall
be removed unless the entire Board or a class of the Board
is removed in case the votes of a sufficient number of
shares are cast against the resolution for his/her removal
which if cumulatively voted at an annual election of the
Board would be sufficient to elect at least one (1)
Director. (b) By action of the Directors: The Board of
Directors may declare vacant the office of a Director if
he/she be declared of unsound mind by an order of court, or
convicted of a felony, or for any other proper cause, or if,
within sixty (60) days after notice of his/her election,
he/she does not accept such office either in writing or by
attending a meeting of the Board of Directors and fulfill
such other requirements of qualification these by-laws may
specify. (c) Other removal: The provisions of this section
shall not be deemed exclusive of any provision of law
authorizing the removal of any Director or a class of the
Board.
Section 2.08. VACANCIES. Vacancies in the Board of
Directors, including vacancies resulting from an increase in
the number of Directors, shall be filled by a majority of
the remaining members of the Board though less than a quorum
or by the sole remaining Director, and each person so
elected shall be a Director for the unexpired term of
his/her predecessor in office, or, if a vacancy arises as a
result of an increase in the number of Directors, the
Director filling the vacancy shall be a Director for a term
to be determined by the Board of Directors, but in no event
to exceed a term of three years. Any such vacancy in any
class of the Board of Directors may be filled by any
incumbent member of any other class of the Board of
Directors, provided, however, that such incumbent member
shall consent to such election; such consent to such
election shall be considered for the purposes of this
Section 2.08 to be a simultaneous resignation by such
Director from his former class.
Section 2.09. COMPENSATION. Directors, as such, shall
not receive any stated salary for their services, but by
resolution of the Board of Directors a fixed sum and
expenses of attendance, if any, may be allowed for
attendance at each annual, regular or special meeting of the
Board; provided, that nothing herein contained shall be
construed to preclude any Director from serving the
corporation in any proper capacity and receiving
compensation therefor.
Section 2.10. CONSENT OF DIRECTORS IN LIEU OF MEETING.
Any action which may be taken at a meeting of the Directors
may be taken without a meeting if, prior or subsequent to
the action, a consent or consents in writing setting forth
the action so taken shall be signed by all of the Directors
and shall be filed with the Secretary of the corporation.
SECTION 2.11. PRESUMPTION OF ASSENT. A Director of
the corporation who is present at a meeting of the Board of
Directors at which action on any corporate matter is taken
shall be presumed to have assented to the action taken
unless his/her dissent shall be entered in the minutes of
the meeting or unless he/she shall file his/her written
dissent to such action with the person acting as the
Secretary of the meeting before the adjournment thereof or
shall forward such dissent in writing by registered mail to
the Secretary of the corporation immediately after the
adjournment of the meeting. Such right to dissent shall not
apply to a Director who voted in favor of such action.
Section 2.12. TELEPHONE MEETINGS. Regular or special
meetings of the Board of Directors may be held by means of a
conference telephone or similar communications equipment by
means of which all persons participating in the meeting can
hear each other.
Section 2.13. COMMITTEES OF THE BOARD. The Board of
Directors may, by resolution adopted by a majority of the
whole Board, designate one or more committees, each
committee to consist of two or more of the Directors of the
corporation. The Board may designate one or more Directors
as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the
committee. A committee, to the extent provided in the
resolution creating it, shall have and exercise the
authority of the Board of Directors in the management of the
business and affairs of the corporation except as restricted
by law. In the absence or disqualification of any member of
a committee, the member or members thereof present at any
meeting and not disqualified from voting, though less than a
quorum, may unanimously appoint another Director to act at
the meeting in the place of the absent or disqualified
member.
Section 2.14. COMMITTEE RULES. Unless the Board of
Directors provides otherwise, each committee designated by
the Board may adopt and amend rules for the conduct of its
business. In the absence of a resolution of the Board or a
provision in the rules of such committee to the contrary, a
majority of the entire authorized number of members of such
committee shall constitute a quorum for the transaction of
business, the vote of a majority of the members present at a
meeting if a quorum is then present shall be the act of such
committee, and in other respects each committee shall
conduct its business in the same manner as the Board
conducts its business pursuant to these by-laws. One or
more members of a committee of the Board may participate in
a meeting of the committee by means of conference telephone
or similar communications equipment by means of which all
persons in the meeting can hear each other.
Section 2.15. NOMINATIONS. Nominations for election
to the Board of Directors may be made by the Board of
Directors or by any shareholder of the corporation entitled
to notice of, and to vote at, any meeting called for the
election of Directors. Nominations, other than those made
by or on behalf of the Board of Directors of the
corporation, shall be made in writing and shall be received
by the Chairman of the Board of the corporation not later
than (i) with respect to an election of Directors to be held
at an annual meeting of shareholders, ninety days prior to
the anniversary date of the immediately preceding annual
meeting, and (ii) with respect to an election of Directors
to be held at a special meeting of shareholders, the close
of business on the tenth day following the date on which
notice of such meeting is first given to shareholders or
public disclosure of the meeting is made. Such notification
shall contain the following information to the extent known
to the notifying shareholder: (a) the name and residence
address of each proposed nominee and of the notifying
shareholder; (b) the principal occupations of each proposed
nominee over the past five (5) years; (c) a representation
that the notifying shareholder intends to appear in person
or by proxy at the meeting to nominate the person or persons
specified in the notice; (d) the total number of shares of
the corporation that will be voted for each proposed
nominee; (e) the total number of shares of the corporation
owned by the notifying shareholder; (f) a description of all
arrangements or understandings between the notifying
shareholder and each nominee and any other person or persons
(naming such person or persons) pursuant to which the
nomination or nominations are to be made by the notifying
shareholder; (g) such other information regarding each
nominee proposed by such shareholders as would be required
to be included in a proxy statement filed with the
Securities and Exchange Commission; and (h) the written
consent of each nominee to serve as a Director of the
corporation if so elected.
ARTICLE III
OFFICERS AND EMPLOYEES
Section 3.01. EXECUTIVE OFFICERS. The executive
officers of the corporation shall be the Chairman of the
Board, the President, one or more Vice Presidents (as may be
determined by the Board of Directors), the Secretary and the
Treasurer, all of whom shall be elected by the Board of
Directors. Any two (2) or more offices may be held by the
same person. Each executive officer shall hold office until
the next succeeding annual meeting of the Board of Directors
and thereafter until his/her successor is duly elected and
qualifies, or until his/her death, resignation or removal.
At the discretion of the Board of Directors, the office of
Chairman of the Board and the office of Vice President may
be left vacant.
Section 3.02. ELECTION, TERM, AND VACANCIES. The
officers of the corporation to be elected by the Board of
Directors shall be elected annually at the annual meeting of
the Board. If the election is not held at such meeting, the
election shall be held as soon thereafter as conveniently
may be. Each officer shall hold office until his/her
successor has been duly elected and qualified or until
his/her earlier death, resignation or removal. A vacancy in
any office occurring in any manner may be filled by the
Board of Directors.
Section 3.03. REMOVAL. Any officer or agent elected
or appointed by the Board of Directors may be removed by the
Board of Directors whenever in its judgment the best
interests of the corporation will be served thereby, but
such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
Section 3.04. ADDITIONAL AND ASSISTANT OFFICERS,
AGENTS AND EMPLOYEES. The Board of Directors from time to
time may appoint one or more other officers, assistant
officers, agents, employees and independent contractors as
the Board deems advisable; and the Board of Directors or the
President shall prescribe their duties, conditions of
employment and compensation. Subject to the power of the
Board of Directors, the President or any other executive
officer may employ from time to time such other agents,
employees and independent contractors as he/she may deem
advisable, and prescribe their duties, conditions of
employment and compensation. The President may dismiss any
agent, employee or independent contractor not employed by
authority of the Board, without prejudice to the contract
rights, if any, of the person so dismissed.
Section 3.05. THE CHAIRMAN. The Chairman of the
Board, if any, shall be elected from among the Directors,
shall preside at the meetings of the shareholders and of the
Board of Directors at which he/she shall be present, and
shall have such other powers and perform such other duties
as may be prescribed by the Board of Directors, and, in the
event that the duties of the Chairman are not prescribed by
the Board of Directors, the Chairman shall have duties at
least as extensive as those prescribed for the office of the
President in Section 3.06.
Section 3.06. THE PRESIDENT. The President, subject
to the control of the Board, shall have management and
supervision over and exercise general executive powers
concerning all the property, business and affairs of the
corporation. The President shall be charged with carrying
out the policies, programs, orders and resolutions adopted
or approved by the Board, and shall have all powers and
perform all duties incident to the office of general
manager, and any further powers and duties as from time to
time may be prescribed by the Board of Directors. He/she
shall have the power to execute deeds, bonds, mortgages,
other contracts, agreements and instruments of the
corporation. The President shall be, ex officio, a member
of all standing committees. Except as otherwise directed by
the Board of Directors, all other officers shall render
reports to the President.
Section 3.07. THE VICE PRESIDENTS. Except as
otherwise ordered by the Board of Directors, the Vice
Presidents, if any, shall have and exercise such powers and
duties as from time to time may be conferred upon them by
the Board of Directors or by the President. The seniority
of Vice Presidents, if seniority is to be assigned, may be
designated at the time of their election. At the request of
the President or in his/her absence or disability, the
senior Vice President shall have and exercise the powers and
duties of the President.
Section 3.08. THE SECRETARY. The Secretary shall:
(a) keep or cause to be kept at the principal office of the
corporation an original or duplicate record of the
proceedings of the shareholders and the Board of Directors,
and a copy of the Articles of Incorporation and of these By-
laws; (b) attend to the giving of notices as may be required
by law or these By-laws; (c) be custodian of the
corporation's records and of the seal of the corporation and
see that the seal is affixed to such documents as may be
necessary or advisable; (d) have charge of and keep at the
registered office of the corporation an original or
duplicate share register, giving the names of the
shareholders in alphabetical order, and showing their
respective addresses, the number and classes of shares held
by each, the number and date of certificates issued for the
shares, and the date of cancellation of every certificate
surrendered for cancellation and (e) have all powers and
perform all duties incident to the office of Secretary, and
such other powers and duties as may from time to time be
prescribed by the Board of Directors or the President.
Section 3.09. THE TREASURER. The Treasurer shall:
(a) be custodian of the corporation's contracts, policies,
leases, deeds and other indicia of title, and all other
business records, tax matters, financial documents and
accounting records; (b) see that the lists, books, reports,
statements, tax returns, certificates and other documents
and records required by law are properly prepared, kept and
filed; (c) be the principal officer in charge of tax and
financial matters and of the accounting of the corporation;
(d) have charge and custody of and be responsible for the
corporation's funds, securities, and investments; (e)
receive, endorse for collection and give receipts for
checks, notes, obligations, funds and securities of the
corporation, and deposit moneys and other valuable effects
in the name and to the credit of the corporation, in such
depositories as shall be designated by the Board of
Directors; (f) cause to be kept appropriate, complete and
accurate books or records of account of all the
corporation's business and transactions; (g) render to the
President and the Board of Directors when and as required,
an account of all his/her transactions as Treasurer, and a
report as to the financial position and operations of the
corporation; and (h) have all powers and perform all duties
incident to the office of Treasurer, and such other powers
and duties as may from tie to time be prescribed by the
Board of Directors or the President.
Section 3.10. VACANCIES. Vacancy in any office or
position by reason of death, resignation, removal,
disqualification or any other cause, shall be filled in the
manner provided in this ARTICLE III for regular election or
appointment to such office.
Section 3.11. DELEGATION OF DUTIES. In case of the
absence of any officer, or for any other reason that 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 Director or other person whom it may select.
Section 3.12. SALARIES. The salaries of the officers
shall be fixed from time to time by the Board of Directors,
and no officer shall be prevented from receiving such salary
by reason of the fact that he/she is also a Director of the
corporation.
ARTICLE IV
SHARES OF CAPITAL STOCK
Section 4.01. SHARE CERTIFICATES. Every holder of
fully-paid stock in the corporation shall be entitled to a
certificate or certificates, consecutively numbered, to be
in such form as required by law and as the Board of
Directors may from time to time prescribe, and signed by the
Chairman of the Board or the President or a Vice President
and the Secretary or the Treasurer or an Assistant Secretary
or an Assistant Treasurer, which shall represent and certify
the number of shares of stock owned by such holder. Where a
certificate is signed by a transfer agent or an assistant
transfer agent or a registrar, the signature of any such
Chairman of the Board, President, Vice President, Secretary,
Treasurer, Assistant Secretary or Assistant Treasurer may be
facsimile. In case any transfer agent, registrar, officer
or officers who have signed, or whose facsimile signature or
signatures have been used on, any such certificate or
certificates shall cease to be such transfer agent,
registrar, officer or officers of the corporation, whether
because of death, resignation or otherwise, before such
certificate or certificates have been issued by the
corporation, such certificate or certificates may
nevertheless be adopted by the corporation and be issued as
though the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures have
been used thereon had not ceased to be such transfer agent,
registrar, officer or officers of the corporation. The
Board may authorize the issuance of certificates for
fractional shares or, in lieu thereof, scrip or other
evidence of ownership, which may in the discretion of the
Board entitle the holder thereof to voting, dividend or
other rights of shareholders.
Section 4.02. TRANSFERS OF SHARES. Transfer of shares
of stock of this corporation shall be made on the books of
the corporation only upon surrender to the corporation or
the transfer agent for cancellation of the certificate or
certificates for such shares properly endorsed by the
registered shareholder or by his/her assignee or legal
representative, who shall furnish proper evidence of
succession, assignment or authority to transfer, or by the
agent of one of the foregoing thereunto duly authorized by
an instrument duly executed and filed with the corporation.
The Board of Directors may appoint, or authorize any
principal officer to appoint, one or more transfer clerks or
one or more transfer agents and one or more registrars and
may require all certificates for capital stock to bear the
signature or signatures of any of them.
Section 4.03. LOST, STOLEN, DESTROYED OR MUTILATED
CERTIFICATES. New certificates for shares of stock may be
issued to replace certificates lost, stolen, destroyed or
mutilated upon such terms and conditions, including proof of
loss or destruction and the giving of a satisfactory bond of
indemnity, as the Board of Directors from time to time may
determined.
Section 4.04. REGULATIONS RELATING TO SHARES. The
Board of Directors shall have power and authority to make
all such rules and regulations not inconsistent with these
By-laws as it may deem expedient concerning the issue,
transfer and registration of certificates representing
shares of the corporation.
Section 4.05. HOLDERS OF RECORD. The corporation
shall be entitled to treat the holder of record of any share
or shares of stock of the corporation as the holder and
owner in fact thereof for all purposes and shall not be
bound to recognize any equitable or other claim to or right,
title or interest in such shares on the part of any other
person, whether or not it shall have express or other notice
thereof, except as otherwise expressly provided by the laws
of Pennsylvania.
ARTICLE V
MISCELLANEOUS CORPORATE TRANSACTIONS AND DOCUMENTS
Section 5.01. SIGNATURES ON NOTES, CHECKS, ETC. All
properly authorized notes, bonds, drafts, acceptances,
checks, endorsements (other than for deposit), guarantees,
and all evidence of indebtedness of the corporation
whatsoever, shall require such number of signatures, and
shall be signed by such officers or agents of the
corporation, subject to such requirements as to
countersignature or other conditions, as the Board of
Directors from time to time may determine. Facsimile
signatures on checks may be used if authorized by the Board
of Directors.
Section 5.02. EXECUTION OF INSTRUMENTS GENERALLY.
Except as provided in Section 5.01, all properly authorized
deeds, mortgages, contracts and other instruments requiring
execution by the corporation may be executed and delivered
by any executive officer of the corporation; and authority
to sign any such contracts or instruments, which may be
general or confined to specific instances, may be conferred
by the Board of Directors upon any other person or persons.
Any person having authority to sign on behalf of the
corporation may delegate, from time to time, by instrument
in writing, all or any part of such authority to any person
or persons if authorized so to do by the Board of Directors.
Section 5.03. VOTING SECURITIES OWNED BY CORPORATION.
Voting securities in any other corporation held by this
corporation shall be voted by the President, unless the
Board of Directors confers authority to vote with respect
thereto, which may be general or confined to specified
investments, upon some other person. Any person authorized
to vote securities shall have the power to appoint proxies,
with general power of substitution.
ARTICLE VI
INDEMNIFICATION
Section 6.01. STANDARD OF CARE AND JUSTIFIABLE
RELIANCE.
(a) A Director of the corporation shall stand in
a fiduciary relation to the corporation and shall perform
his/her duties as a Director, including his/her duties as a
member of any committee of the board upon which he/she may
serve, in good faith, in a manner he/she reasonably believes
to be in the best interests of the corporation, and with
such care, including reasonable inquiry, skill and
diligence, as a person of ordinary prudence would use under
similar circumstances. In performing his/her duties, a
Director shall be entitled to rely in good faith on
information, opinions, reports or statements, including
financial statements and other financial data, in each case
prepared or presented by any of the following (1) One or
more officers or employees of the corporation whom the
Director reasonably believes to be reliable and competent in
the matters presented; (2) Counsel, public accountants or
other persons as to matters which the Director reasonably
believes to be within the professional or expert competence
of such person; and (3) A committee of the board upon which
he/she does not serve, duly designated in accordance with
law, as to matters within its designated authority, which
committee the Director reasonably believes to merit
confidence. A Director shall not be considered to be acting
in good faith if he/she has knowledge concerning the matter
in question that would cause his/her reliance to be
unwarranted.
(b) In discharging the duties of their respective
positions, the board of Directors, committees of the board
and individual Directors may, in considering the best
interests of the corporation, consider the effects of any
action upon employees, upon suppliers and customers of the
corporation and upon communities in which offices or other
establishments of the corporation are located, and all other
pertinent factors. The consideration of those factors shall
not constitute a violation of subsection (a).
(c) Absent breach of fiduciary duty, lack of good
faith or self-dealing, actions taken as a Director or any
failure to take any action shall be presumed to be in the
best interests of the corporation.
Section 6.02. PERSONAL LIABILITY OF DIRECTORS. A
Director of the corporation shall not be personally liable
for monetary damages as such for any action taken, or any
failure to take any action, unless: (1) the Director has
breached or failed to perform the duties of his/her office
under Section 6.01 (relating to standard of care and
justifiable reliance); and (2) the breach or failure to
perform constitutes self-dealing, willful misconduct or
recklessness. The provisions of this section shall not
apply to: (1) the responsibility or liability of a Director
pursuant to any criminal statute; or (2) the liability of a
Director for the payment of taxes pursuant to local, State
or Federal law.
Section 6.03. INDEMNIFICATION IN THIRD PARTY ACTIONS.
The corporation 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 (other than
an action by or in the right of the corporation) by reason
of the fact that he/she is or was a Director, officer,
employee or agent of the corporation, or is or was serving
at the request of the corporation as a Director, officer,
employee, or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by
him/her in connection with such action, suit or proceeding
if he/she acted in good faith and in a manner he/she
reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to
believe his/her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order,
settlement, 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/she reasonably believed to be in or not opposed to
the best interests of the corporation and, with respect to
any criminal action or proceeding, had reasonable cause to
believe that his/her conduct was unlawful.
Section 6.04. INDEMNIFICATION IN DERIVATIVE ACTIONS.
The corporation 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 or suit by or in the right of
the corporation to procure a judgment in its favor by reason
of the fact that he/she is or was a Director, officer,
employee or agent of the corporation, or is or was serving
at the request of the corporation as a Director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses
(including attorney's fees) actually and reasonably incurred
by him/her in connection with the defense or settlement of
such action or suit if he/she acted in good faith and in a
manner he/she reasonably believed to be in or not opposed to
the best interests of the corporation and except that no
indemnification shall be made in respect of 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/her duty to the corporation unless and only to the
extent that the Court of Common Pleas of the county in which
the registered office of the corporation is located 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 which the Court of Common Pleas of such
other court shall deem proper.
Section 6.05. WHEN INDEMNIFICATION IS NOT TO BE MADE.
Indemnification pursuant to Section 6.03 and 6.04 shall not
be made in any case where the act or failure to act giving
rise to the claim for indemnification is determined by a
Court to have constituted willful misconduct or
recklessness.
Section 6.06. EXPENSES UPON SUCCESSFUL TERMINATION.
To the extent that a Director, officer, employee or agent or
the corporation has been successful on the merits or
otherwise in the defense of any action, suit or proceeding
referred to in Sections 6.03 and 6.04, or in defense of any
claim, issue or matter therein, he/she shall be indemnified
against expenses (including attorneys' fees) actually and
reasonably incurred by him/her in connection therewith.
Section 6.07. DETERMINATION OF STANDARD OF CONDUCT.
Any indemnification under Sections 6.03 and 6.04 (unless
ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that
indemnification of the Director, officer, employee or agent
is proper in the circumstances because he/she has met the
applicable standard of conduct set forth in Sections 6.02,
6.03 and 6.04. Such determination shall be made: (1) by
the board of Directors by a majority vote of a quorum
consisting of Directors who were not parties to such action,
suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable a majority vote of a
quorum of disinterested Directors so directs, by independent
legal counsel in a written opinion, or (3) by the
shareholders.
Section 6.08. PAYMENT OF EXPENSES. Expenses incurred
by an officer, Director, employee or agent in defending a
civil or criminal action, suit or proceeding may be paid by
the corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by
or on behalf of such person to repay such amount if it shall
ultimately be determined that he/she is not entitled to be
indemnified by the corporation.
Section 6.09. INDEMNIFICATION RIGHTS, SUPPLEMENTAL AND
CONTINUING. The indemnification and advancement of expenses
provided by this Article shall not be deemed exclusive of
any other rights to which those seeking indemnification may
be entitled under any agreement, vote of stockholders or
disinterested Directors or otherwise, both as to action in
his/her official capacity and as to action in another
capacity while holding such office, and shall continue as to
a person who has ceased to be a Director, officer, employee
or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
ARTICLE VII
AMENDMENT OF BY-LAWS
Section 7.01. AMENDMENT. Except as otherwise provided
in the Articles of Incorporation or in Section 1.03(c) of
these By-laws, these By-laws may be altered, amended and
repealed, and new By-laws may be adopted, by the vote of
shareholders entitled to cast at least a majority of the
votes which all shareholders are entitled to cast, or by the
vote of a majority of the full Board of Directors of the
corporation, at any regular or special meeting. In each
case, notice of the specific Section proposed to be changed
must be given to the shareholders or to the Directors, as
the case may be. No provision of these By-laws shall vest
any property right in any shareholder.
Section 7.02. CERTAIN AMENDMENTS. Notwithstanding the
provisions of Section 7.01, the Board of Directors shall not
have the authority to adopt or change a By-law on any subject
that is committed expressly to the shareholders by any of the
provisions of Subpart B of the Pennsylvania Business Corporation
Law of 1988.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.01. OFFICES. The principal office of the
corporation shall be at Saxonburg Boulevard, Saxonburg, Butler
County, Pennsylvania. The registered office of the corporation,
required by the Pennsylvania Business Corporation Law to be
maintained in the Commonwealth of Pennsylvania, may be, but need
not be, the same as the principal office. The address of the
registered office may be changed from time to time by the Board
of Directors. The corporation may also have additional offices
and places of business at such other places within or without
the Commonwealth of Pennsylvania as the business of the corporation
may require.
Section 8.02. CORPORATE SEAL. The Board of Directors shall
prescribe the form of a suitable corporate seal, which shall
contain the full name of the corporation and the year and state
of incorporation.
Section 8.03. FISCAL YEAR. The fiscal year of the corporation
shall end on such day as shall be fixed by resolution of the Board
of Directors.
Section 8.04. FINANCIAL REPORTS TO SHAREHOLDERS. The Board
of Directors shall have discretion to determine whether financial
reports shall be sent to shareholders, what such reports shall
contain, and whether they shall be audited or accompanied by the
report of an independent or certified public accountant.
Section 8.05. INSPECTION OF CORPORATE RECORDS. Every
shareholder shall, upon written demand under oath stating the
purpose thereof, have a right to examine, in person or by agent
or attorney, during the usual hours for business, for any proper
purpose, the share register, books or records of account, and
records of the proceedings of the shareholders and Directors, and
to make copies or extracts therefrom. A proper purpose shall mean
a purpose reasonably related to such person's interest as a
shareholder. In every instance where an attorney or other agent
shall be the person who seeks the right to inspection, the demand
under oath shall be accompanied by a power of attorney or other
writing which authorizes the attorney or other agent to so act
on behalf of the shareholder. The demand under oath shall be
directed to the corporation at its registered office or at its
principal place of business.
Section 8.06. INTERESTED DIRECTORS; QUORUM. No contract
or transaction between the corporation and one or more of its
Directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in
which one or more of its Directors or officers are Directors or
officers, or have a financial interest, shall be void or voidable
solely for such reason, or solely because the Director or officer
is present at or participates in the meeting of the Board which
authorizes the contract or transaction, or solely because his/her
or their votes are counted for such purpose, if:
(1) The material facts as to his/her relationship or
interest and as to the contract or transaction are disclosed
or are known to the Board of Directors and the Board authorizes
the contract or transaction by a vote sufficient for such
purpose without counting the vote of the interested Director
or Directors; or
(2) The material facts as to his/her relationship or
interest and as to the contract or transaction are disclosed or
are known to the shareholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith
by vote of the shareholders; or
(3) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or ratified,
by the Board of Directors or the shareholders.
Interested Directors may be counted in determining the presence of
a quorum at a meeting of the Board of Directors which authorizes a
contract or transaction specified in this Section.
Section 8.07. DISALLOWED EXPENSES; REIMBURSEMENT. Any
payments made to an officer or employee of the corporation, such
as salary, commission, bonus, interest or rent or entertainment
or travel expense, which shall be disallowed to the corporation in
whole or in part as a deductible expense by the Internal Revenue
Service, shall be reimbursed by such officer or employee to the
corporation to the full extent of such disallowance. It shall be
the duty of the Board of Directors, as a Board, to enforce payment
of each such amount disallowed. In lieu of payment by the officer
or employee, subject to the determination of the Board of Directors,
proportionate amounts may be withheld from such officer's or
employee's future compensation, until the amount owed to the
corporation has been received.
Section 8.08. NOTICES; WAIVER OF NOTICE. (a) NOTICE:
Whenever under these By-laws or by law notice is required to be
given to any person, including written notice (and unless otherwise
provided by these By-laws or by law), it may be given to such
person, either personally or by sending a copy thereof through the
mail, or by telegram, charges prepaid, to his/her address appearing
on the books of the corporation, or supplied by him/her to the
corporation for the purpose of notice. If the notice is sent by
mail or by telegraph, it shall be deemed to have been given to the
person entitled thereto when deposited in the United States mail
or with a telegraph office for transmission to such person. Such
notice shall specify the place, day and hour of the meeting; except
in the case of a special meeting of shareholders or as otherwise
expressly required herein or by law, neither the business to be
transacted at, nor the purpose of, the meeting need be specified
in the notice. (b) WAIVER: Whenever under these By-laws or by
law written notice is required to be given to any person, a waiver
thereof in writing, signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice. Except in the
case of a special meeting of shareholders or as otherwise expressly
required herein or by law, neither the business to be transacted
at, nor the purpose of, the meeting need be specified in the waiver
of notice of such meeting. (c) ATTENDANCE CONSTITUTES WAIVER:
Attendance of a person in person, or by proxy in the case of a
shareholder, at any meeting shall constitute a waiver of notice of
such meeting, except where a person attends a meeting for the express
purpose of objecting to the transaction of any business because the
meeting was not lawfully called or convened.