II-VI INCORPORATED
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
(As amended through November 8, 2004)
1. The name of the corporation is:
II-VI INCORPORATED
2. The location and post office address of its registered office in
the Commonwealth of Pennsylvania is:
Saxonburg Boulevard
Saxonburg, Pennsylvania 16056
3. The purpose or purposes of the corporation, which is organized
under the Business Corporation Law of the Commonwealth of
Pennsylvania, Act of May 5, 1933, (P.L. 364) , as amended, are as
follows:
The corporation shall have unlimited power to engage in and to do
any or all lawful business for which corporations may be
incorporated under the Business Corporation Law, Act of May 5,
1933 (P.L. 364), as amended, including, without limitation, the
power to engage in manufacturing of any nature whatsoever.
4. The term of its existence is: Perpetual
5. The aggregate number of shares which the corporation is authorized
to issue is:
One Hundred Million (100,000,000) shares of common stock, having
no par value per share (the "Common Stock"), and Five Million
(5,000,000) shares of preferred stock, having no par value per
share (the "Preferred Stock").
A description of each class of shares and a statement of the
designations, voting rights, preferences, qualifications,
limitations, restrictions and the special or relative rights
granted to or imposed upon the shares of each class are as
follows:
A. Each share of Common Stock of the corporation shall be
entitled to one (1) vote.
B. The Board of Directors is hereby expressly authorized, at any
time or from time to time, to divide any or all of the shares
of Preferred Stock into one or more series, and in the
resolution or resolutions establishing a particular series,
before issuance of any of the shares thereof, to fix and
determine the number of shares and the designation of such
series, so as to distinguish it from the shares of all other
series and classes, and to fix and determine the designations,
voting rights, preferences, qualifications, limitations,
restrictions and the special or relative rights of the
Preferred Stock or of such series, to the fullest extent now
or hereafter permitted by the laws of the Commonwealth of
Pennsylvania, including, but not limited to, the variations
between different series in the following respects:
1) the distinctive designation of such series and the number
of shares which shall constitute such series, which number
may be increased or decreased (but no below the number of
shares thereof then outstanding) from time to time by the
Board of Directors;
2) the annual dividend rate for such series, and the date or
dates from which dividends shall commence to accrue:
3) the price or prices at which, and the terms and conditions
on which, the shares of such series may be made
redeemable;
4) the purpose or sinking fund provisions, if any, for the
purchase or redemption of shares of such series;
5) the preferential amount or amounts payable upon shares of
such series in the event of liquidation, dissolution, or
winding up of the corporation;
6) the voting rights, if any, of shares of such series;
7) the terms and conditions, if any, upon which shares of
such series may be converted and the class or classes or
series of shares of the corporation or other securities
into which such shares may be converted;
8) the relative seniority, priority or junior rank of such
series as to dividends, and whether such dividends shall
be cumulative or non-cumulative, with respect to any other
classes or series of stock then or thereafter to be
issued; and
9) such other designations, voting rights, preferences,
qualifications, limitations, restrictions, and special or
relative rights and preferences, if any, of shares of such
series as the Board of Directors may, at the time of such
resolution or resolutions, lawfully fix or determine under
the laws of the Commonwealth of Pennsylvania.
Unless otherwise provided by law, the Articles of
Incorporation, the By-Laws of the corporation or in a
resolution or resolutions establishing any particular
series of Preferred Stock, the aggregate number of
authorized shares of Preferred Stock may be increased by
an amendment of the Articles of Incorporation approved
solely by a majority vote of the outstanding shares of
Common Stock.
All shares within each series of Preferred Stock shall be
alike in every particular, except with respect to the
dates from which dividends shall commence to accrue.
The Board of Directors may in its discretion, at any time
or from time to time, issue or cause to be issued all or
any part of the authorized and unissued shares of
Preferred Stock for consideration of such character and
value as the Board of Directors shall from time to time
fix or determine.
C. There shall be a series of Preferred Stock with the
designation and relative rights and preferences as follows:
1) Designation. The shares of such series shall be
designated as "Series One Preferred Stock" and the number
of shares constituting such series shall initially be
Three Hundred Thousand (300,000). Shares of this series
shall be issued pursuant to the exercise of rights to
purchase Series One Preferred Stock distributed to the
holders of Common Stock of the corporation.
2) Dividends and Distributions. Subject to the rights and
preferences of the holders of any shares of any class or
series of Preferred Stock ranking senior as to dividends
to this Series One Preferred Stock, as such may be
established by the Board of Directors, the holders of
shares of Series One Preferred Stock, in preference to the
holders of Common Stock and shares of stock ranking junior
as to dividends to the Series One Preferred Stock, shall
be entitled to receive, when and if declared by the Board
of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the 15th
day of September, December, March and June in each year
(each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share
or fraction of a share of Series One Preferred Stock, in
an amount per share (rounded to the nearest cent) equal
to, subject to the provision for adjustment hereinafter
set forth, 100 times the aggregate per share amount of all
cash dividends plus 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or
other distributions, other than a dividend payable in
shares of Common Stock, or a subdivision of the
outstanding shares of Common Stock (by reclassification or
otherwise), paid on the Common Stock at any time during
the quarter year immediately preceding the quarter year
ending on the day immediately preceding such Quarterly
Dividend Payment Date. In the event the corporation shall
at any time after August 11, 2001 (the "Rights Declaration
Date") during any quarter year immediately preceding the
quarter year ending on the day immediately preceding a
Quarterly Dividend Payment Date (i) declare any dividend
on Common Stock payable in shares of Common Stock, or (ii)
subdivide the outstanding Common Stock or combine the
outstanding Common Stock into a greater or lesser number
of shares of Common Stock, then in each such case the
amounts to which holders of shares of Series One Preferred
Stock were entitled immediately prior to such event under
the preceding sentence shall be adjusted by multiplying
each such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding
immediately after such event and the denominator of which
is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Dividends shall begin to accrue and be cumulative on
outstanding shares of Series One Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of
issue of such shares of Series One Preferred Stock, unless
the date of issue is a Quarterly Dividend Payment Date or
is a date after the record date for the determination of
holders of shares of Series One Preferred Stock entitled
to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the
shares of Series One Preferred Stock in an amount less
than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro
rata on a share-by-share basis among all such shares at
the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of
Series One Preferred Stock entitled to receive payment of
a dividend or distribution declare thereon, which record
date shall be no more than 30 days prior to the date fixed
for the payment thereof.
3) Voting Rights.
(a) Each share of Series One Preferred Stock shall
entitle the holder thereof to 100 votes (and each one one-
hundredth of a share of Series One Preferred Stock shall
entitle the holder thereof to one vote) on all matters
submitted to a vote of the shareholders of the
corporation. In the event that the corporation shall at
any time declare or pay any dividend on Common Stock
payable in shares of Common Stock or effect a subdivision
or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then
and in each such event, the number of votes per share to
which holders of shares of Series One Preferred Stock were
entitled immediately prior to such event shall be adjusted
by multiplying such number by a fraction, the numerator of
which is the number of shares of Common Stock outstanding
immediately after such event, and the denominator of which
is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided herein or by applicable
law, the holders of shares of Series One Preferred Stock
and the holders of shares of Common Stock shall vote
together as one class for the election of directors of the
corporation and on all other matters submitted to a vote
of shareholders of the corporation.
(c) Except as provided herein or by applicable law,
holders of Series One Preferred Stock shall have no
special voting rights and their consent shall not be
required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for
authorizing or taking any corporate action.
4) Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series One Preferred Stock as
provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions,
whether or not declared, on shares of Series One Preferred
Stock outstanding shall have been paid in full, the
corporation shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise
acquire for consideration any shares of stock ranking
junior (either as to dividends or as to assets) to
the Series One Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a
parity (either as to dividends or as to assets) with
the Series One Preferred Stock, except dividends paid
ratably on the Series One Preferred Stock and all
such parity stock on which dividends are payable or
in arrears in proportion to the total amounts to
which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or as to assets) to the
Series One Preferred Stock, provided that the
corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in
exchange for shares of any stock of the corporation
ranking junior (either as to dividends or as to
assets) to the Series One Preferred Stock; or
(iv) purchase or otherwise acquire for consideration
any shares of Series One Preferred Stock, or any
shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding
up) with the Series One Preferred Stock, except in
accordance with a purchase offer made in writing or
by publication (as determined by the Board of
Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration
of the respective annual dividend rates and other
relative rights and preferences of the respective
series and classes, shall determine in good faith
will result in fair and equitable treatment among the
respective series or classes.
(b) The corporation shall not permit any subsidiary of
the corporation to purchase or otherwise acquire for
consideration any shares of stock of the corporation
unless the corporation could, under Paragraph (A) of this
Section 4, purchase or otherwise acquire such shares at
such time and in such manner.
5) Reacquired Shares. Any shares of Series One Preferred
Stock purchased or otherwise acquired by the corporation
in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but
unissued shares of Series One Preferred Stock and may be
reissued as part of the same or a new series of Preferred
Stock to be created by resolution or resolutions of the
Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
6) Liquidation, Dissolution or Winding Up. Subject to the
rights and preferences of the holders of any shares of any
class or series of Preferred Stock ranking senior as to
assets to this Series One Preferred Stock, upon any
involuntary or voluntary liquidation, dissolution or
winding up of the corporation, no distribution shall be
made to the holders of shares of stock ranking junior
(either as to dividends or as to assts) to the Series One
Preferred Stock unless, prior thereto, the holders of
shares of Series One Preferred Stock shall have received
an amount per share equal to the Per Share Series One
Liquidation Preference. Following the payment of the full
amount of the Series One Liquidation Preference, holders
of shares of Common Stock shall receive the remaining
assets to be distributed.
The "Per Share Series One Liquidation Preference" shall be
equal to the sum of (x) $100.00 plus an amount equal to
accrued and unpaid dividends and distribution thereon,
whether or not declared, to the date of such payment, plus
(y) the Participation Preference. The "Participation
Preference" is an amount per each share of Series One
Preferred Stock outstanding, equal to the product of (A)
the Excess Distribution Amount (as hereinafter defined)
times (B) a fraction the numerator of which is 100 and the
denominator of which is the sum of (i) the product of 100
times the number of outstanding shares of Series One
Preferred Stock, plus (ii) the product of 100 times a
fraction the numerator of which is the number of
outstanding shares of Common Stock and the denominator of
which is the Adjustment Number (as hereinafter defined);
provided, however, if the foregoing computation results in
a negative number, then the Participation Preference shall
be 0.
The "Excess Distribution Amount" is an amount equal to the
amount available for distribution to shareholders of the
corporation after payment of all debts and liabilities
less the sum of (i) the liquidation preferences in respect
of all shares of Preferred Stock of the corporation other
than the Series One Preferred Stock, (ii) the product of
100 times the number of outstanding shares of Series One
Preferred Stock, and (iii) the product of the number of
outstanding shares of Common Stock times a fraction the
numerator of which is 100 and the denominator of which is
the Adjustment Number.
The "Adjustment Number" shall initially be 100 and shall
be subject to adjustment as provided in this paragraph.
In the event the corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares,
then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the
denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such
event.
7) Consolidation, Merger, etc. In case the corporation shall
enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities,
cash and/or any other property, then in any such case the
shares of Series One Preferred Stock shall at the same
time be similarly exchanged or changed in an amount per
share (subject to the provision for adjustment hereinafter
set forth) equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each
share of Common Stock is changed or exchanged. In the
event the corporation shall at any time (i) declare any
dividend on Common Stock payable in shares of Common
Stock, or (ii) subdivide the outstanding Common Stock or
combine the outstanding Common Stock into a greater or
lesser number of shares of Common Stock, then in each such
case the amount set forth in the preceding sentence with
respect to the exchange or change of shares of Series One
Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number
of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately
prior to such event.
8) Redemption. The outstanding shares of Series One
Preferred Stock may be redeemed at the option of the Board
of Directors as a whole, but not in part, at any time, or
from time to time, at a cash price per share equal to (i)
the product of the Adjustment Number times the Average
Market Value of the Common Stock, plus (ii) all dividends
which on the redemption date have accrued on the shares to
be redeemed and have not been paid or declared and a sum
sufficient for the payment thereof set apart, without
interest; provided, however, that if and whenever any
quarter-yearly dividend shall have accrued on the Series
One Preferred Stock which has not been paid or declared
and a sum sufficient for the payment thereof set apart,
the corporation may not purchase or otherwise acquire any
shares of Series One Preferred Stock unless all shares of
such stock at the time outstanding are so purchased or
otherwise acquired. The "Average Market Value" is the
average of the closing sale prices of the Common Stock
during the 30 day period immediately preceding the date
before the redemption date on Nasdaq or any system then in
use, or if no such quotations are available, the fair
market value of the Common Stock as determined by the
Board of Directors in good faith.
9) Fractional Shares. Series One Preferred Stock may be
issued in fractions of a share which shall entitle the
holder, in proportion to such holder's fractional shares,
to exercise voting rights, if applicable, receive
dividends, participate in distributions and to have the
benefit of all other rights of holders of Series One
Preferred Stock.
6. A. In addition to the right of the Board of Directors under law
to remove a director for cause, and subject to the rights of
the holder of any series of Preferred Stock then outstanding,
any director, any class of directors, or the entire Board of
Directors may be removed from office by a vote of the
shareholders at any time, with or without assigning any cause,
but only if shareholders entitled to cast at least two-thirds
(2/3) of the votes which all shareholders would be entitled to
cast at an annual election of directors or of such class shall
vote in favor of such removal provided, however, that no
individual director shall be removed (unless the entire Board
of Directors or any class of directors shall be removed) if
the votes cast against such removal would be sufficient, if
voted cumulatively for such director, to elect him or her to
the class of directors of which he or she is a member.
B. Notwithstanding any other provisions of law, the Articles of
Incorporation or the By-laws of the corporation, the
affirmative vote of shareholders entitled to cast at least
two-thirds (2/3) of the votes which all shareholders would be
entitled to cast at an annual election of directors, voting
together as a single class, shall be required to amend, alter,
or repeal, or to adopt any provision inconsistent with this
Article 6 or any provision of the By-laws of the corporation
relating to the number of directors, the classification of
directors, and/or the filling of vacancies on the Board of
Directors; provided, however, that this Paragraph B shall not
apply to and such two-thirds (2/3) vote shall not be required
for any such amendment, repeal, or adoption unanimously
approved by all of the directors of the corporation.