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EXHIBIT 3 (ii)
MINE SAFETY APPLIANCES COMPANY
(A Pennsylvania Corporation)
By-Laws
As Amended to August 29, 1990*
* * * * * *
ARTICLE I
Meetings of Shareholders
Section 1.01. Annual Meetings. An annual meeting of the
shareholders shall be held at each year within five months after the end of
the fiscal year of the Company on such day and at such time and place as may
be designated by the Board of Directors, or if not do designated on the third
Wednesday of April in each year if not a legal holiday, and if a legal holiday
then on the next business day following, at 10:00 o'clock A.M., local time, at
the principal office of the Company.
* Note: References in the By-Laws to the "Restated Articles" are to the
Articles of the Corporation as amended by resolutions adopted at the Annual
Meeting of shareholders on May 23, 1986, and as they may be thereafter amended
or
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supplemented. Section references in brackets are to specific provisions of the
Restated Articles, and indicate that the preceding provision is taken
substantially verbatim from the Restated Articles; and capitalized terms are
used as those terms are defined in the Restated Articles.
Section 1.02. Business at Annual Meetings. The business at an annual
meeting of shareholders shall include: (a) a review of the business of the
preceding year; (b) the election of directors to succeed those whose terms
shall expire; (c) the selection of auditors; and (d) such other business as
may properly be brought before the meeting. No business may be transacted at
any annual meeting other than with respect to (i) matters referred to in the
notice of meeting (or any supplement thereto) and matters which are incidental
or germane thereto, (ii) matters otherwise properly brought before the meeting
by or at the direction of the Board of Directors, and (iii) matters properly
brought before the meeting by a shareholders, but only in accordance and upon
compliance with the provisions of the proxy rules of the Securities and
Exchange Commission relating to shareholder proposals. If for any reason the
annual meeting is not held at the time fixed therefor, the
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election of directors may be held at a subsequent meeting called for that
purpose.
Section 1.03. Special Meetings. Except as otherwise required by law
and subject to the rights of the holders of any class or series of preferred
stock with respect to any vote of the holders of such class or series when
voting by class, special meetings of shareholders of the Company may be called
only by the Board of Directors pursuant to a resolution approved by a majority
vote of the Disinterested Directors (as that term is defined in the Restated
Articles). [Restated Articles Section 12.03] Special meetings 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 Company.
Section 1.04. Business at Special Meetings. No business may be
transacted at any special meeting of shareholders other than that the general
nature of which has been stated in the notice of meeting, and business which
is incidental or germane thereto.
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Section 1.05. Notice of Shareholders' Meetings. Written notice
specifying the place, date and time of each meeting of the shareholders and
the purpose or purposes for which the meeting is called shall be given to all
shareholders of record entitled to vote at such meeting at least ten days
before the day named for the meeting.
Section 1.06. Quorum; Organization. A shareholders' meeting duly
called shall not be organized for the transaction of business unless a quorum
is present. At any meeting 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 continue to do business
until adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a majority. If a meeting cannot be organized because a quorum
has not attended, those present in person or by proxy may adjourn the meeting
to such time and place as they may determine, without notice other than
announcement at the meeting, until
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a quorum as aforesaid shall be present; and in the case of any meeting called
for the election of directors, such meeting may be adjourned only from day to
day, or for such longer periods not exceeding fifteen days each, as may be
directed by shareholders who are present in person or by proxy, and those who
attend the second of such adjourned meetings, although entitled to cast less
than a majority of the votes which all outstanding shares are entitled to cast,
shall nevertheless constitute a quorum for the purpose of electing directors.
The Chairman, or in his absence, the President, shall preside, and the
Secretary shall take the minutes, at all meetings of the shareholders. In the
absence of the foregoing officers 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.
Section 1.07. Vote Required; Meeting Procedure. When a quorum is
present at any meeting, the vote of shareholders present, in person or by
proxy, entitled to cast at least a majority of the votes which all shareholders
present
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and voting (excluding abstentions) are entitled to cast on the particular
matter shall decide any question brought before such meeting, except that (a)
if the question is one upon which, by express provision of statute or of the
Restated Articles, a different or additional vote is required, such express
provision shall govern, (b) all elections shall be determined by a plurality
of the votes cast, and (c) in the case of privileged, subsidiary or incidental
motions or questions involving the convenience of the shareholders present, the
Chairman may call for a per capita vote, either by voice or by show of hands.
Elections for directors need not be by ballot, unless otherwise ordered by the
presiding officer at the meeting or unless a demand is made by a shareholder
at the meeting and before the voting begins. The chairman of any meeting
shall determine the order of business and the procedure at the meeting,
including such regulation of the conduct of discussion as seems to him in
order. The conduct of meetings shall be governed by accepted corporate
practice, the fundamental rule being that all who are entitled to take part
shall be treated with fairness and good faith.
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Section 1.08. Proxies; Appointment and Revocation. Every shareholder
entitled to vote at a meeting of shareholders or to express consent or dissent
to corporate action in writing without a meeting may authorize another person
or persons, but not more than three, to act for him by proxy. Every proxy
shall be appointed by an instrument in writing (including telegram, cable or
radio-gram, telex or similar transmission), executed by such shareholder or by
his authorized attorney, and filed with the Secretary of the Company. A proxy
shall not be revoked by the death or incapacity of the maker unless, before
the vote is counted or the proxy is exercised, written notice of such death or
incapacity is given to the Secretary of the Company.
ARTICLE II
Directors
Section 2.01. Number, election, etc.
(a) Number. The whole Board of Directors shall consist of such
number of persons, not less than 5 nor more
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than 15, as may from time to time be determined by the Board pursuant to a
resolution adopted by a majority vote of the Disinterested Directors then in
office. [Restated Articles Section 10.1(a)]
(b) Classes; Election and Terms. Beginning with the Board of
Directors to be elected at the annual meeting of shareholders to be held in
1986, the directors shall be classified in respect of the time for which they
shall severally hold office by dividing them into three classes, as nearly
equal in number as possible. If the classes of directors are not equal, the
Board of Directors by a majority vote of the Disinterested Directors then in
office shall determine which class shall contain an unequal number of
directors. At the annual meeting of shareholders to be held in 1986, separate
elections shall be held for the directors of each class, the term of office of
directors of the first class to expire at the first annual meeting after their
election; the term of office of the directors of the second class to expire at
the second annual meeting after their election; and the term of office of the
directors of the third class to expire at the third annual meeting after
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their election. At each succeeding annual meeting, the shareholders shall
elect directors of the class whose term then expires, to hold office until the
third succeeding annual meeting. Each director shall hold office for the term
for which elected and until his or her successor shall be elected and shall
qualify. [Restated Articles Section 10.1(b)]
(c) Removal of Directors. Any directors, any class of directors or
the entire Board of Directors may be removed from office by shareholder vote
at any time, without assigning any cause, but only if shareholders entitled to
cast at least 80% of the votes which all shareholders would be entitled to
cast at an annual election of directors or of such class of directors shall
vote in favor of such removal; provided, however, that the shareholders shall
have such power of removal without cause only if and so long as the general
corporate law of the Company's state of incorporation specifically mandates
such power. If such power of removal without cause is not mandated by
statute, the shareholders may remove a director or directors from office at any
time only for cause and only if, in addition to any vote
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required by any other provision of law, the Articles or the By-Laws of the
Company, such removal is approved by the affirmative vote of at least a
majority of the Voting Power of the outstanding shares of Voting Stock of the
Company which are not Beneficially Owned by an Acquiring Person [Restated
Articles Section 10.1(c)]
(d) Vacancies. Vacancies in the Board of Directors, including
vacancies resulting from an increase in the number of directors, shall be
filled only by a majority vote of the Disinterested Directors then in office,
though less than a quorum, except as otherwise required by law. All directors
elected to fill vacancies shall hold office for a term expiring at the annual
meeting of shareholders at which the term of the class to which they have been
elected expires. No decrease in the number of directors constituting the Board
of Directors shall shorten the term of an incumbent director. [Restated
Articles Section 10.1(d)]
(e) Nomination of Director Candidates. Nominations for the election
of directors may be made only by the Board of Directors or a committee
appointed by the
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Board of Directors or by any holder of record of stock entitled to vote in the
election of the directors to be elected; but a nomination may be made by a
shareholder only if written notice of such nomination has been given, either by
personal delivery or by United States mail, postage prepaid, to the Secretary
of the Company not later than 90 days in advance of the meeting at which the
election is to be held. Each such notice shall set forth: (a) the name and
address of the shareholder who intends to make the nomination and of the person
or persons to be nominated; (b) a representation that the shareholder is a
holder of record of stock of the Company entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate the person
or persons specified in the notice; (c) a description of all arrangements or
understandings between the 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 shareholder; (d) such other information
regarding each nominee proposed by such shareholder as would be required to be
included in a proxy statement filed pursuant to the proxy
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rules of the Securities and Exchange Commission, had the nominee been
nominated by the Board of Directors; and (e) the consent of each nominee to
serve as a director of the Company if so elected. [Restated Articles Section
10.1(e)]
(f) Exception for Directors Elected by Preferred Stock. Whenever the
holders of any class or series of stock having a preference over the Common
Stock of the Company as to dividends or assets shall have the right, voting
separately as a class, to elect one or more directors of the Company, none of
the foregoing provisions of this Section 2.01 shall apply with respect to the
director or directors elected by such holders of preferred stock. [Restated
Articles Section 10.1(f)]
(g) In case of a vacancy in the office of any director elected by the
preferred stock, the remaining directors or director elected by the preferred
stock may choose a successor who shall hold office for the unexpired term in
respect of which such vacancy occurred.
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(h) Each director shall hold office from the time of his election,
but shall be responsible as a director from such time only if he consents to
his election; otherwise from the time he accepts office or attends his first
meeting of the Board.
Section 2.02. Organization Meeting; Notice. An organization meeting
of the newly elected Board of Directors shall be held each year promptly after
the annual meeting of shareholders at a place designated by the Chairman or the
President. At such meeting the Board of Directors shall organize itself and
elect the executive officers of the Company and members of standing Committees
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 shall be held at such time and place as shall be designated by the Board
of Directors from time to time, or if not so designated, as determined by the
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Chairman or the President. 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 whenever 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. Any
business may be transacted at any regular meeting.
Section 2.04. Special Meetings; Notice. Special meetings of the
Board may be called at any time by the Board itself by vote at a meeting, or
by any three directors, or by the Chairman or the President, to be held at
such place and day and hour as shall be specified by the person or persons
calling the meeting, or if not so specified by the Secretary. Notice of every
special meeting of the Board of Directors, which states the place, day and hour
thereof, shall be given to each director either by being mailed on at least
the second calendar day prior to the date of the meeting, or by being sent by
telex or telegraph or given personally or by telephone prior to the date of the
meeting. Neither the call of a special meeting nor the notice thereof
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need specify the purpose thereof or the business to be transacted thereat,
except as otherwise expressly required herein or by law.
Section 2.05. Quorum. At all meetings of the Board of Directors,
the presence or participation by other lawful means of a majority of the
directors in office shall be necessary and sufficient to constitute a quorum
for the transaction of business. The Directors present at a duly organized
meeting shall continue to constitute a quorum until adjournment,
notwithstanding the withdrawal of enough Directors to leave less than a
majority. 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, without
notice other than announcement at the meeting, until a quorum as aforesaid
shall be present.
Section 2.06. Action. 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
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present at a meeting duly organized, except as otherwise provided herein, in
the Restated Articles or by law. The Chairman, or in his absence the
President, shall preside at all meetings of the Board of Directors. The
Secretary shall take the minutes at all meetings of the Board. In the absence
of the foregoing officers 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. The yeas and
nays shall be taken and recorded in the minutes at the request of any director
present at a meeting.
Section 2.07. Participation Other Than By Attendance. One or more
of the Directors may participate in any regular or special meeting of the
Board or of a committee of the Board by means of conference telephone or
similar communications equipment by means of which all persons participating
in the meeting are able to hear each other, or by any other lawful means in
lieu of attendance, any may act by proxy to the extent at the time permitted
by law. All directors so participating shall be deemed present at the meeting.
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Section 2.08. Emergency Provisions.
Notwithstanding any other provisions of law, the Articles or these By-Laws,
during any emergency period caused by war or any other national catastrophe or
local disaster of sufficient severity to prevent the conduct and management of
the business and affairs of the Company by its Board of Directors and officers
as contemplated by the other provisions of these By-Laws, a majority of the
available Directors (or the sole such Director) who have not been rendered
incapable of acting because of incapacity or the difficulty of communication
or transportation to the place of meeting shall constitute a quorum for the
sole purpose of electing Directors to fill such vacancies or to reduce the
size of the full Board or both; and a majority of the directors (or the sole
survivor) present at such a meeting may take such action. Directors so
elected shall serve until the absent Directors are able to attend meetings or
until the shareholders act to elect Directors to succeed them. During such an
emergency period, if both the Board and the Executive Committee are unable or
fail to meet, any action appropriate to the circumstances may be taken by such
officers of the Company as may be present and able.
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Questions as to the existence of a national catastrophe or local disaster and
the number of surviving members capable of acting shall be conclusively
determined at the time by the Directors or the officers so acting.
Section 2.09. Presumption of Assent. Minutes of each meeting of the
Board shall be made available to each director at or before the next
succeeding regular meeting. Every director shall be presumed to have assented
to such minutes unless his objection thereto shall be made to the Secretary
within two days after such next regular meeting.
Section 2.10. Resignations. Any director may resign by submitting to
the Chairman of the Board or the President his 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 2.11. Committees.
(a) Appointments; Powers. Except as otherwise provided in subsection
(b) pertaining to the Executive
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Committee, standing or temporary committees shall consist of one or more
Directors of the Company and such other members, who need not be directors, as
the Board may direct and may be appointed from time to time by a majority of
the Directors present or participating at any regular or special meeting. The
Board may from time to time invest committees with such power and authority,
subject to such conditions as it may see fit, except that no committee shall
have any power or authority to adopt, amend or repeal any By-Law.
(b) Executive Committee. An Executive Committee of three or more
directors may be appointed by resolution adopted by a majority of the
directors in office; it shall have all the powers and exercise all of the
authority of the Board during intervals between meetings, except as specially
limited by the Board. Meetings of the Executive Committee may be called at any
time by any member, to be held at such place and day and hour as shall be
specified by the person or persons calling the meeting, or if not so specified
by the Secretary. Notice of every meeting of the Executive Committee, which
states the place, day and hour thereof, but need not state the purposes
thereof, shall be given to each
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member either by being mailed on at least the second calendar day prior to the
date of the meeting, or by being sent by telegraph or given personally or by
telephone prior to the date of the meeting. The presence or participation by
other lawful means of a majority of the members of the Committee shall be
necessary and sufficient to constitute a quorum for the transaction of
business, and any action of the Committee upon any matter shall be taken and
be valid with the affirmative vote of at least a majority of the members of the
Committee. The Executive Committee shall keep a record of all action taken
and report such action to the Board of Directors at its next meeting thereafter.
(c) Term; Vacancies; Absence or Disqualification. All committee
members appointed by the Board shall serve during the pleasure of the Board,
which may fill vacancies and may designate one or more Directors as alternate
members of any committee, to take the place of any absent or disqualified
member at any meeting. In the absence or disqualification of any member or
alternate member of any committee or committees, the member or members thereof
participating at any meeting and not disqualified from
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voting, whether or not he, she or they constitute a quorum, may unanimously
appoint another Director to act at the meeting in the place of any such absent
or disqualified member or alternate member.
(d) Organization; Finality of Action. All committees shall keep such
record of the transactions of their meetings as the Board or these By-Laws
shall direct. All committees shall determine their own organization,
procedures, and times and places of meeting, unless otherwise directed by the
Board and except as otherwise provided in these By-Laws. Any action taken by
any committee shall be subject to alteration or revocation by the Board;
provided, however, that third parties shall not be prejudiced by such
alteration or revocation.
Section 2.12. Compensation. By resolution of the Board, Directors
may be paid a fixed sum and expenses, if any, of attendance for any regular or
special meeting of the Board or any committee, and may in addition be paid an
annual retainer fee or a retirement allowance, or both. Directors shall also
be entitled to receive such
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compensation for services rendered to the Company as officers, committee
members, or in any capacity other than as directors, as may be provided from
time to time by resolution of the Board. [Amended by Board of Directors
12-17-87.]
ARTICLE III
Officers and Employees
Section 3.01. Executive Officers. The executive officers of the
Company 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. The executive officers shall be elected by the Board of
Directors. Any two or more offices may be held by the same person, except that
the same person shall not be President and Secretary. Each executive officer
shall hold office at the discretion of the Board until the next succeeding
annual meeting of the Board of Directors and thereafter until his or her
successor is duly elected and qualifies, or until his or her earlier death,
resignation or removal. The Board may authorize the Company to enter into
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employment contracts and/or consulting agreements with any executive officer
for such periods as may be deemed appropriate including periods longer than
one year, and the provision herein for annual election shall be without
prejudice to the contract rights, if any, of executive officers under such
contracts.
Section 3.02. Additional and Assistant Officers, Agents and
Employees. The Board of Directors, the Chairman and the President each may
from time to time appoint or hire one or more other officers, assistant
officers, agents, employees and independent contractors as are deemed
advisable; and the Board of Directors, the Chairman or the President may
prescribe their duties, conditions of employment and compensation and may
dismiss them without prejudice to their contract rights, if any. [Amended by
Board of Directors 8-29-90.]
Section 3.03. The Chairman of the Board. The Chairman of the Board,
who shall be elected from among the Directors, shall be the Chief Executive
Officer of the Company and shall preside at all meetings of the Board of
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Directors and of the Shareholders. He shall exercise the powers and perform
duties usual to the Chief Executive officer and, subject to the control and
direction of the Board of Directors, shall have management and supervision
over and exercise general executive powers concerning all the property,
business and affairs of the Company. He shall see that all policies,
programs, orders and resolutions of the Board of Directors are carried into
effect, and shall have such other powers and duties as from time to time may
be assigned to him by the Board of Directors or these By-Laws. He shall have
the power to execute deeds, bonds, mortgages, and other contracts, agreements
and instruments of the Company. He shall be, ex officio, a member of all
standing committees of the Board except the committee on officers'
compensation. [Amended by Board of Directors 6-27-90.]
Section 3.04. The President. The President shall be subject to the
control and direction of the Chairman of the Board and shall direct and
supervise those affairs of the Company assigned to him by the Chairman, the
Board of Directors, or the By-Laws. In the absence of or disability
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of the Chairman of the Board, the President shall be the Chief Executive
Officer. He shall have the power to execute deeds, bonds, mortgages, and
other contracts, agreements and instruments of the Company. [Amended by Board
of Directors 6-27-90.]
Section 3.05. The Vice Presidents. The Vice Presidents, one or
more of whom may be designated executive, senior, group or administrative vice
president, or given other descriptive title, shall have such powers and
perform such duties in such capacities as may be assigned by the Board of
Directors or the Chairman of the Board. [Amended by Board of Directors
6-27-90.]
Section 3.06. The Secretary. The Secretary shall: (a) be custodian
of the Company's contracts, policies, leases, deeds and other indicia of
title, and all other business records; (b) keep or cause to be kept at the
registered office or the principal place of business of the Company an
original or duplicate record of the proceedings of the shareholders and the
Board of Directors, and a copy of the Articles of the Company and of these
By-Laws; (c)
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attend to the giving of notices of the Company as may be required by law or
these By-Laws; (d) be custodian of the corporate records and of the seal of
the Company and see that the seal is affixed to such documents as may be
necessary or advisable; (e) have charge of and keep at the registered office or
the principal place of business of the Company, or cause to be kept at the
office of a transfer agent or registrar 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 (f) have
such powers and duties as may from time to time be prescribed by the Board of
Directors or the Chairman. [Amended by Board of Directors 8-29-90.]
Section 3.07. The Vice President - Finance. If a Vice President -
Finance is elected by the Board of Directors, he or she (a) shall serve as the
Company's Chief Financial Officer; (b) shall, subject to the approval of the
Chairman, recommend financing, investing, borrowing, tax,
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insurance and internal audit policies for the Company; (c) shall be responsible
for the preparation of consolidated financial statements required by the Board
of Directors or the Chairman; (d) shall see that the lists, books, reports,
statements, tax returns, certificates and other documents and records required
by law are properly prepared, completed and filed; and (e) shall have such
other powers and duties in such capacities as may from time to time be
prescribed by the Board of Directors or the Chairman. If the Board does not
elect a Vice President - Finance, the powers and duties herein set forth shall
be exercised by the Treasurer. [Amended by Board of Directors 8-29-90.]
Section 3.08. The Treasurer. The Treasurer (a) shall have powers and
perform such duties in such capacities as may be assigned by the Board of
Directors or the Vice President - Finance in the development of financing,
investing and borrowing policies, and shall administer these policies; (b)
shall have charge and custody of and be responsible for the corporate funds,
securities and investments; (c) shall receive, endorse for collection, and
give receipts for checks notes, obligations, funds and
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securities of the Company, and deposit monies and other valuable effects in
the name and to the credit of the Company in such depositories as shall be
designated by the Board of Directors; (d) subject to the provisions of Section
5.01 of the By-Laws, shall cause to be disbursed the funds of the Company by
payment in cash or by checks or drafts upon the authorized depositories of the
Company, and cause to be taken and preserved proper vouchers and receipts for
such disbursements; (e) shall coordinate financing of the Company's
international subsidiaries; and (f) shall have such other powers and duties as
may from time to time be prescribed by the Board of Directors or the Vice
President - Finance. [Amended by Board of Directors 8-29-90.]
Section 3.9. Delegation of Duties. In case of the absence of any
officer of the Company, or for any other reason that the Board may deem
sufficient, the Board of Directors may delegate for the time being the powers
and duties, or any of them, of any officer to any other officer or director or
other person whom it may select.
ARTICLE IV
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Shares of Capital Stock
Section 4.01. Share Certificate. Every holder of fully-paid stock
in the Company shall be entitled to a certificate or certificates,
consecutively numbered, to be in such form as the Board of Directors may from
time to time prescribe, and signed (in facsimile or otherwise, as permitted by
law) by the Chairman, the President or a Vice President and by the Secretary or
the Treasurer which shall represent and certify the number of shares of stock
owned by such holder. The Board may authorize the issuance of certificates for
fractional shares or, in lieu thereof, scrip or other evidence of ownership,
which may (or may not) as determined by the Board entitle the holder thereof
to voting, dividend or other rights of shareholders.
Section 4.02. Transfer of Shares. Transfers of shares of stock of
the Company shall be made on the books of the Company only upon surrender to
the Company for cancellation of the certificate or certificates for such
shares properly endorsed, by the registered shareholder or by his assignee,
agent or legal representative, who shall
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furnish proper evidence of succession, assignment or authority to transfer, or
by the agent of one or the foregoing there unto duly authorized by an
instrument duly executed and filed with the Company in accordance with regular
commercial practice.
Section 4.03. Replacement of Certificates. New certificates for
shares of stock may be issued to replace certificates alleged to have been
lost, stolen, destroyed or mutilated upon such terms and conditions, including
an affidavit of loss or destruction and the giving of a satisfactory bond of
indemnity, as the Board of Directors from time to time may determine.
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 Company.
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Section 4.05. Record Date. The Board of Directors may fix a record
date for the determination of shareholders for any purpose, including the right
to notice of or to vote at meetings, payment of dividends or distributions,
allotment of rights, or change, reclassification, conversion or exchange of
shares, up to 110 days prior to the action for which the record date is fixed.
The Company shall be entitled to treat the holder of record of any share or
shares of stock of the Company 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 any share 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. Borrowing. No officer, agent or employee of the
Company shall have any power or authority to
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borrow money on its behalf, to guarantee or pledge its credit, or to mortgage
or pledge any of its real or personal property, except within the scope and to
the extent of the authority delegated by the Board of Directors. Authority
may be granted by the Board for any of the above purposes and may be general
or limited to specific instances.
Section 5.02. Execution of Instruments Generally. All properly
authorized notes, bonds, drafts, acceptances, checks, endorsements (other than
for deposit), guarantees, and all evidences of indebtedness of the Company
whatsoever, and all properly authorized deeds, mortgages, contracts and other
instruments requiring execution by the Company may be executed and delivered by
the Chairman, the President or any Vice President or the Treasurer of the
Company; 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, subject to such requirements as to
countersignature or other conditions, as the Board of Directors from time to
time may determine. Facsimile signature on checks, notes, bonds and other
instruments may be used if authorized by the
<PAGE>
Board of Directors. Any person having authority to sign on behalf of the
Company 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 and Acting with Respect to Securities Owned by
Company. The Chairman of the Board of Directors, the President or any Vice
President each shall have the power and authority to vote and act with respect
to all stock and other securities in any other corporation held by this
Company, unless the Board confers such authority, which may be general or
specific, upon some other person. Any person so authorized to vote securities
shall have the power to appoint an attorney or attorneys, with general power
of substitution, as proxies for the Company, with full power to vote and act
in behalf of the Company with respect to such stock and other securities.
ARTICLE VI
General Provisions
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Section 6.01. Offices. The principal office and place of business
of the Company shall be at 121 Gamma Drive, Pittsburgh, Allegheny County,
Pennsylvania. The Company may also have offices at such other places within
or without the Commonwealth of Pennsylvania as the business of the Company may
require.
Section 6.02. Corporate Seal. The Board of Directors shall
prescribe the form of a suitable corporate seal, which shall contain the full
name of the Company and the year and state of incorporation.
Section 6.03. Fiscal Year. The fiscal year of the Company shall
begin the first day of January and terminate on the last day of December in
each year.
Section 6.04. Financial Reports to Shareholders. The Board of
Directors shall have discretion to determine whether financial statements
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.
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ARTICLE VII
Indemnification
[Approved by Shareholders 4/24/87.]
Section 7.01. Indemnification of Directors, Officers and Others.
(a) Right to Indemnification. Except as prohibited by law, every
Director and officer of the Company shall be entitled as of right to be
indemnified by the Company against expenses and any liability paid or incurred
by such person in connection with any actual or threatened claim, action, suit
or proceeding, civil, criminal, administrative, investigative or other, whether
brought by or in the right of the Company or otherwise, in which he or she may
be involved, as a party or otherwise, by reason of such person being or having
been a Director or officer of the Company or by reason of the fact that such
person is or was serving at the request of the Company as a director, officer,
employee, fiduciary or other representative of another corporation,
partnership, joint venture, trust,
<PAGE>
employee benefit plan or other entity (such claim, action, suit or proceeding
hereinafter being referred to as "Action"); provided that no such right or
indemnification shall exist with respect to an Action brought by an indemnitee
(as hereinafter defined) against the Company except as provided in the last
sentence of this Subsection (a). Persons who are not directors or officers of
the Company may be similarly indemnified in respect of service to the Company
or to another such entity at the request of the Company to the extent the
Board of Directors at any time denominates any of such persons as entitled to
the benefits of this Section. As used in this Section 7.01, "indemnitee"
shall include each Director and officer of the Company and each other person
denominated by the Board of Directors as entitled to the benefits of this
Section, "expenses" shall include fees and expenses of counsel selected by any
such indemnitee and "liability" shall include amounts of judgments, excise
taxes, fines, penalties and amounts paid in settlement. An indemnitee shall be
entitled to be indemnified pursuant to this Subsection (a) for expenses
incurred in connection with any Action brought by an indemnitee against the
Company only (i) as provided under
<PAGE>
Subsection (c) of this Section, (ii) if the indemnitee is successful in whole
or in part in the Action for which expenses are claimed or (iii) if the
indemnification for expenses is included in a settlement of the Action or is
awarded by a court.
(b) Right to Advancement of Expenses. Every indemnitee shall be
entitled as of right to have his or her expenses in defending any Action or in
any Action under Subsection (c) paid in advance by the Company prior to final
disposition of such Action, subject to any obligation which may be imposed by
law or by provision in the Articles, By-Laws, agreement or otherwise to
reimburse the Company in certain events.
(c) Right of Indemnitee to Initiate Action. If a written claim under
Subsection (a) or Subsection (b) of this Section is not paid in full by the
Company within thirty days after such claim has been received by the Company,
the indemnitee may at any time thereafter initiate an Action against the
Company to recover the unpaid amount of the claim and, if successful in whole
or in part, the indemnitee
<PAGE>
shall also be entitled to be paid the expense of prosecuting such Action. The
only defense to any Action to recover a claim under Subsection (a) of this
Section shall be that the indemnitee's conduct was such that under
Pennsylvania law the Company is prohibited from indemnifying the indemnitee
for the amount claimed, but the burden of proving such defense shall be on the
Company. Neither the failure of the Company (including its Board of Directors,
independent legal counsel and 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 Company
(including its Board of Directors, independent legal counsel or its
shareholders) that the indemnitee's conduct was such that indemnification is
prohibited by law, shall be a defense to such Action or create a presumption
that the indemnitee's conduct was such that indemnification is prohibited by
law. The only defense to any such Action to receive payment of expenses in
advance under Subsection (b) of this Section shall be failure to make an
undertaking to reimburse if such an undertaking is required by law or by
provision in the Articles, By-Laws, agreement or otherwise.
<PAGE>
(d) Insurance and Funding. The Company may purchase and maintain
insurance to protect itself and any person eligible to be indemnified
hereunder against any liability or expense asserted or incurred by such person
in connection with any Action, whether or not the Company would have the power
to indemnify such person against such liability or expense by law or under the
provisions of this Section. The Company may create a trust fund, grant a
security interest, cause a letter of credit to be issued or use other means
(whether or not similar to the foregoing) to ensure the payment of such sums
as may become necessary to effect indemnification as provided herein.
(e) Non-Exclusivity; Nature and Extent of Rights. The right of
indemnification and advancement of expenses provided for in this Section (i)
shall not be deemed exclusive of any other rights, whether now existing or
hereafter created, to which any indemnitee may be entitled under any agreement
or by-law, charter provision, vote of shareholders or directors or otherwise
(ii) shall be deemed to create contractual rights in favor of each indemnitee,
(iii) shall continue as to each person who has ceased to have the
<PAGE>
status pursuant to which he or she was entitled or was denominated as entitled
to indemnification under this Section and shall inure to the benefit of the
heirs and legal representatives of each indemnitee and (iv) shall be applicable
to Actions commenced after the adoption of this Section, whether arising from
acts or omissions occurring before or after the adoption of this Section. The
rights of indemnification and advancement of expenses provided for in this
Section may not be amended or repealed so as to limit in any way the
indemnification or the right to advancement of expenses provided for in this
Section with respect to any acts or omissions occurring prior to the adoption
of any such amendment or repeal.
(f) Effective Date. This Section 7.01 shall apply to every Action
other than an Action filed prior to January 27, 1987, except that it shall not
apply to the extent that Pennsylvania law does not permit its application to
any breach of performance of duty or any failure of performance of duty by an
indemnitee occurring prior to January 27, 1987. [Approved by Shareholders
4/24/87.]
<PAGE>
[Approved by Shareholders 4/24/87] [Restated Articles, Article 14th.]
Section 7.02. Personal Liability of Directors.
(a) To the fullest extent that the laws of the Commonwealth of
Pennsylvania, as in effect on January 27, 1987 or as thereafter amended,
permit elimination or limitation of the liability of directors, no Director of
the Company shall be personally liable for monetary damages as such for any
action taken, or any failure to take any action, as a Director.
(b) This Section 7.02 shall not apply to any actions filed prior to
January 27, 1987, nor to any breach of performance of duty or any failure of
performance of duty by any Director of the Company occurring prior to January
27, 1987. The provisions of this Section shall be deemed to be a contract with
each Director of the Company who serves as such at any time while this Section
is in effect and each such Director shall be deemed to be doing so in reliance
on the provisions of this Section. Any amendment or repeal of
<PAGE>
this Section or adoption of any other By-Law or provision of the Articles of
the Company which has the effect of increasing Director liability shall operate
prospectively only and shall not affect any action taken, or any failure to
act, prior to the adoption of such amendment, repeal, other By-Law or
provision. [Approved by Shareholders 4/24/87.] [Restated Articles, Article
14th.]
ARTICLE VIII
Amendments
Section 8.01. Amendments to By-Laws. The Board of Directors, by
vote of a majority of the Disinterested Directors, may adopt, amend and repeal
the By-Laws with respect to those matters which are not, by statute, reserved
exclusively to the shareholders. No By-Law may be adopted, amended or repealed
by the shareholders unless, in addition to any vote required by any other
provision of law, the Articles or the By-Laws of the Company, such action is
approved by the holders of a majority of the Voting Power of the Voting Stock
of the Company which is not Beneficially Owned by an Acquiring Person, unless
such action has been
<PAGE>
previously approved by a majority vote of the Disinterested Directors.
[Restated Articles Section 12.1]
ARTICLE IX
Non-Applicability of Statute
Section 9.01. Non-Applicability of Statute. Subchapter 25G
(Control-Share Acquisitions) of the Pennsylvania Business Corporation Law,
added by the Act of April 27, 1990 (P.L. 129, No. 36), shall not be applicable
to the Company. [This By-Law provision was adopted by action of the Board of
Directors on June 27, 1990.]
