BY-LAWS
OF
EMCORE
CORPORATION
As
Amended Through March 31, 2008
ARTICLE
I
OFFICES
1.
Principal
Place of Business
. The principal place of business of EMCORE
Corporation (the “Corporation”) is 10420 Research Road S.E., Albuquerque, New
Mexico 87123.
2.
Other
Places of Business
. Branch or subordinate places of business or
offices may be established at any time by the Board of Directors of the
Corporation (the “Board”) at any place or places where the Corporation is
qualified to do business.
ARTICLE
II
SHAREHOLDERS
1.
Annual
Meeting
. The annual meeting of shareholders shall be held at a
time fixed by the Board that shall be within thirteen months of the last annual
meeting, upon not less than ten nor more than sixty days written notice of
the
time, place, and purpose of the meeting at the corporate offices, or at such
other time and place as shall be specified in the notice of meeting, in order
to
elect directors of the Corporation (“Directors”) and transact such other
business as shall come before the meeting.
2.
Special
Meetings
. A special meeting of shareholders may be called for any
purpose by, the Executive Chairman, the chief executive officer or by the Board
of Directors acting as a body. A special meeting shall be held upon
not less than ten nor more than sixty days written notice of the time, place
and
purpose of the meeting.
3.
Action
Without Meeting
. The shareholders may act without a meeting if,
prior or subsequent to such action, each shareholder who would have been
entitled to vote upon such action shall consent in writing to such
action. Such written consent or consents shall be filled in the
minute book.
4.
Quorum
. The
presence at a meeting in person or by proxy of the holders of shares entitled
to
cast a majority of the votes shall constitute a quorum.
5.
Organization
. The
Executive Chairman, or in the absence of the Executive Chairman , the chief
executive officer, president or such vice president as may be designated by
theExecutive Chairman, shall preside at all meetings of the
shareholders. If all are absent, any other officer designated by the
Executive Chairman shall preside. If no officer so designated is
present, the shareholders present in person or represented by proxy may elect
one of their number to preside. The secretary shall act as secretary
at all meetings of the shareholders; but in the absence of the secretary the
presiding officer may appoint any person to act as secretary of the
meeting.
ARTICLE
III
VOTING
AND ELECTIONS
1.
Voting
. Each
holder of shares with voting rights shall be entitled to one vote for each
such
share registered in his or her name, except as otherwise provided in the
certificate of incorporation of the Corporation (the “Certificate of
Incorporation”). Whenever any action, other than the election of
Directors, is to be taken by vote of the shareholders, it shall be authorized
by
a majority of the votes cast at a meeting of shareholders by the holders of
shares entitled to vote thereon, unless a greater percentage is required by
statute or by the Certificate of Incorporation.
2.
Voting
Lists
. The officer or agent having charge of the stock transfer
books for shares of the Corporation shall make a complete list of shareholders
entitled to vote at a shareholders’ meeting or any adjournment
thereof. A list required by this Section 2 may consist of cards
arranged alphabetically or any equipment which permits the visual display of
the
information required. Such list shall be arranged alphabetically
within each class, series or group of shareholders maintained by the Corporation
for convenience of reference, with the address of, and the number of shares
held
by, each shareholder; be produced (or available by means of a visual display)
at
the time and place of the meeting; be subject to the inspection of any
shareholder for reasonable periods during the meeting; and be prima facie
evidence of the identity of the shareholders entitled to examine such list
or to
vote at any meeting. If the requirements of this Section 2 have not
been complied with, the meeting shall, on the demand of any shareholder in
person or by proxy, be adjourned until the requirements are complied
with. Failure to comply with the requirements of this Section 2 shall
not affect the validity of any action taken at such meeting prior to the making
of such demand.
3.
Fixing
Record Date
. (a) The Board may fix, in advance, a date
as the record date for determining the Corporation’s shareholders with regard to
any corporate action or event and, in particular, for determining the
shareholders who are entitled to
(i) notice
of or to vote at any meeting of shareholders or any adjournment
thereof;
(ii) give
a written consent to any action without a meeting; or
(iii) receive
payment of any dividend or allotment of any right.
The
record date may in no case be more than sixty days prior to the shareholders’
meeting or other corporate action or event to which it relates. The
record date for a shareholders’ meeting may not be less than ten days before the
date of the meeting. The record date to determine shareholders to
give a written consent may not be more than sixty days before the date fixed
for
tabulation of the consents or, if no date has been fixed for tabulation, more
than sixty days before the last day on which consents received may be
counted.
(b) If
no record date is fixed,
(i) the
record date for a shareholders’ meeting shall be the close of business on the
day next preceding the day on which notice is given, or, if no notice is given,
the day next preceding the day on which the meeting is held; and
(ii) the
record date for determining shareholders for any other purpose shall be at
the
close of business on the day on which the resolution of the Board relating
thereto is adopted.
(c) The
record date for determining shareholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board is required
by
this act, shall be the first date on which a signed written consent setting
forth the action taken or proposes to be taken is delivered to the Corporation
by delivery to its registered office in New Jersey, its principal place of
business, or an officer or agent of the Corporation having custody of the book
in which proceedings of meetings of shareholders are recorded.
(d) When
a determination of shareholders of record for a shareholders’ meeting has been
made as provided in this Subsection 3(d), such determination shall apply to
any
adjournment thereof, unless the Board fixes a new record date under this
Subsection 3(d) for the adjourned meeting.
4.
Inspectors
of Election
. The Board may, in advance of any shareholders’
meeting, or of the tabulation of written consents of shareholders without
a
meeting, appoint one or more inspectors to act at the meeting or any adjournment
thereof or to tabulate such consents and make a written report
thereof. If inspectors to act at any meeting of shareholders are not
so appointed or shall fail to qualify, the person presiding at a shareholders’
meeting may, and on the request of any shareholder entitled to vote thereat
shall, make such appointment.
Each
inspector, before entering upon the discharge of his duties, shall take and
sign
an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his or her ability. No person shall be
elected a Director in an election for which he or she has served as an
inspector.
The
inspectors 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
validity and effect of proxies, and shall receive votes or consents, hear and
determine all challenges and questions arising in connection with the right
to
vote, count and tabulate all votes or consents, determine the result, and do
such acts as are proper to conduct the election or vote with fairness to all
shareholders. If there are three or more inspectors, the act of a
majority shall govern. On request of the person presiding at the
meeting or any shareholder entitled to vote thereat, the inspectors shall make
a
report in writing of any challenge, question or matter determined by
them. Any report made by them shall be prima facie evidence of the
facts therein stated, and such report shall be filed with the minutes of the
meeting.
5.
Proxies
. (a) Every
shareholder entitled to vote at a shareholder meeting may authorize another
person or persons to act for him or her by proxy. Every proxy shall
be executed by the shareholder or his or her agent, but a proxy may be given
by
telegram, cable, telephonic transmission, or any other means of electronic
communication so long as that telegram, cable, telephonic transmission or other
means of electronic communication either sets forth or is submitted with
information from which it can be determined that the proxy was authorized by
shareholder or his agent.
(b) No
proxy shall be valid after eleven months from the date of its execution unless
a
longer time is expressly provided therein. A proxy shall be revocable
at will unless it states that it is irrevocable and is coupled with an interest
either in the stock itself or in the Corporation. A proxy shall not
be revoked by the death or incapacity of the shareholder, but the proxy shall
continue in force until revoked by the personal representative or guardian
of
the shareholder.
(c) The
presence at a meeting of any shareholder who has given a proxy shall not revoke
the proxy unless the shareholder (i) files written notice of the revocation
with
the secretary of the meeting prior to the voting of the proxy or (ii) votes
the
shares subject to the proxy by written ballot. A person named as
proxy of a shareholder may, if the proxy so provides, substitute another person
to act in his or her place, including any other person named as proxy in the
same proxy. The substitution shall not be effective until an
instrument effecting it is filed with the secretary of the
Corporation.
(d) Each
person holding a proxy shall either file the proxy with the secretary of the
meeting or the inspectors at the start of the meeting or shall submit the proxy
to the inspectors together with his or her ballot, as determined by the
presiding officer. No proxy shall be counted or acted upon that is
submitted to the secretary of the meeting or the inspectors any later than
the
first time during the meeting a vote is taken by ballot.
ARTICLE
IV
BOARD
OF
DIRECTORS
1.
Election;
Term of Office; Removal; Vacancies; Nomination
. (a) Election;
Term of Office. The number of Directors constituting the entire Board
shall be not less than six nor more than twelve, as fixed from time to time
by
the vote of not less than 66 2/3% of the entire Board; provided, however, that
the number of Directors shall not be reduced so as to shorten the term of any
Director at the time in office, and provided further, that the number of
Directors constituting the entire Board shall be nine unless and until otherwise
fixed by the vote of not less than 66 2/3% of the entire Board. The
phrase “66 2/3% of the entire Board” shall be deemed to refer to 66 2/3% of the
number of Directors constituting the Board as provided in or pursuant to this
Subsection 1(a), without regard to any vacancies then
existing.
(b)
Classification
.
The Board shall be divided into three classes, as nearly equal in number as
the
then total number of Directors constituting the entire Board
permits. The initial term of office of the first class shall expire
at the 2002 Annual Meeting of Shareholders. The initial term of
office of the second class shall expire at the 2001 Annual Meeting of
Shareholders. The initial term of office of the third class expired
at the 2000 Annual Meeting of Shareholders. The Directors elected at
an annual meeting of shareholders to succeed those whose terms then expire
shall
be identified as being Directors of the same class as the Directors whom they
succeed, and each of them shall hold office until the third succeeding annual
meeting of shareholders and until such Director's successor shall have been
elected and qualified. Any vacancies in the Board for any reason, and
any created Directorships resulting from any increase in the number of
Directors, may be filled by the vote of not less than 66 2/3% of the members
of
the Board then in office, although less than a quorum, and any Directors so
chosen shall hold office until the next election of the class for which such
Directors shall have been chosen and until their successors shall be elected
and
qualified. No decrease in the number of Directors shall shorten the
term of any incumbent Director. Notwithstanding the foregoing, and
except as otherwise required by law, whenever the holders of any one or more
series of preferred stock of the Corporation (“Preferred Stock”) shall have the
right, voting separately as a class, to elect one or more Director, the then
authorized number of Directors shall be increased by the number of Directors
so
to be elected, and the terms of the Director or Directors elected by such
holders shall expire at the next succeeding annual meeting of
shareholders.
(c)
Removal
. Notwithstanding
any other provisions of these by-laws (the “By-Laws”), any Director, or the
entire Board, may be removed at any time, but only for cause and only by the
affirmative vote of the holders of 80% or more of the outstanding shares of
capital stock of the Corporation (“Capital Stock”) entitled to vote generally in
the election of Directors (considered for this purpose as one class) cast at
a
meeting of the shareholders called for that purpose. Notwithstanding
the foregoing, and except as otherwise required by law, whenever the holders
of
any one or more series of Preferred Stock shall have the right, voting
separately as a class, to elect one or more Directors, the provisions of this
Subsection 1(c) shall not apply with respect to the Director or Directors
elected by such holders of Preferred Stock.
(d)
Nomination
. Nominations
for the election of Directors may be made by the Board or by any shareholder
entitled to vote for the election of Directors. Nominations for
election at the annual meeting of shareholders which are not made by the Board
shall be made by notice in writing, delivered or mailed by first class mail,
postage prepaid, to the secretary by the date specified in the Corporation’s
proxy statement mailed to shareholders relating to the immediately preceding
annual meeting of shareholders;
provided
, that in the event of an
election to be held at a special meeting of shareholders, or if no such date
was
specified in the relevant proxy statement, such notice shall be given not more
than 10 days after the date of notice of the meeting of the shareholders called
for the election of Directors. Notice of nominations which are
proposed by the Board shall be given by the Board.
Each
notice under this Subsection 1(d) shall set forth (i) the name, age, and
business address of each nominee proposed in such notice, (ii) the principal
occupation or employment of each such nominee, (iii) the number of shares
of Capital Stock which are beneficially owned by each such nominee; and (iv)
such other information as would be required to be included in a proxy or
disclosure to be filed with the Securities and Exchange Commission.
The
person presiding at the meeting may, if the facts warrant, determine and declare
to the meeting that a nomination was not made in accordance with the foregoing
procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
2.
Regular
Meetings
. A regular meeting of the Board shall be held without
notice immediately following and at the same place as the annual shareholders’
meeting for the purposes of electing officers and conducting such other business
as may come before the meeting. The Board, by resolution, may provide
for additional regular meetings which may be held without notice, except advance
notice, as described in Section 3 below, shall be provided to Directors not
present at the time of the adoption of the resolution.
3.
Special
Meetings
. A special meeting of the Board may be called at any
time by the Executive Chairman, the chief executive officer or a majority of
the
members of the Board for any purpose. Such meeting shall be held upon
one day’s notice if given orally (either by telephone or in person) or by
telegraph, e-mail or facsimile transmission, or by three days notice if given
by
depositing the notice in the United States mails, postage
prepaid. Such notice shall specify the time and place of the
meeting.
4.
Action
Without Meeting
. The Board may act without a meeting if, prior or
subsequent to such action, each member of the Board shall consent in writing
to
such action. Such written consent or consents shall be filed in the
minute book.
5.
Quorum
. One-half
of the entire Board shall constitute a quorum for the transaction of
business.
6.
Committees
. The
Board, by resolution adopted by a majority of the entire Board, may appoint
from
among its members an executive committee and one or more other committees,
each
of which shall have at least three members. To the extent provided in
such resolution, each such committee shall have and may exercise all the
authority of the Board, except that no such committee shall (a) make, alter
or
repeal any By-Law; (b) elect any Director, or remove any officer or Director;
(c) submit to shareholders any action that requires shareholders’ approval; or
(d) amend or repeal any resolution theretofore adopted by the Board which by
its
terms is amendable or repealable only by the Board.
The
Board, by resolution adopted by a majority of the entire Board, may (a) fill
any
vacancy in any such committee; (b) appoint one or more Directors to serve as
alternate members of any such committee, to act in the absence or disability
of
members of any such committee with all the powers of such absent or disabled
members; (c) abolish any such committee at its pleasure; (d) remove any Director
from membership on such committee at any time, with or without cause; and (e)
establish as a quorum for any such committee less than a majority of the entire
committee, but in no case less than the greater of two persons or one-third
of
the entire committee.
Actions
taken at a meeting of any such committee shall be reported to the Board at
its
next meeting following such committee meeting; except that, when the meeting
of
the Board is held within two days after the committee meeting, such report
shall, if not made at the first meeting, be made to the Board at its second
meeting following such committee meeting.
7.
Compensation
of Directors
. The Board, by the affirmative vote of a majority of
Directors in office and irrespective of any personal interest of any of them,
shall have authority to establish reasonable compensation of Directors for
services to the Corporation as Directors, officers or otherwise.
8.
Chairman
of the Board. The person holding the position of Executive Chairman
shall also serve as Chairman of the Board of Directors, which shall constitute
a
non-officer position.
ARTICLE
V
WAIVERS
OF NOTICE
Any
notice required by these By-Laws, by the Certificate of Incorporation, or by
applicable law, including the New Jersey Business Corporation Act may be waived
in writing by any person entitled to notice. The waiver or waivers
may be executed either before or after the event with respect to which notice
is
waived. Each Director or shareholder attending a meeting without
protesting, prior to its conclusion, the lack of proper notice shall be deemed
conclusively to have waived notice of the meeting.
ARTICLE
VI
OFFICERS
1.
Election
. At
its regular meeting following the annual meeting of shareholders, the Board
shall elect an Executive Chairman chief executive officer, a president, a
treasurer and a secretary, and it may elect such other officers, including
one
or more vice presidents, as it shall deem necessary. One person may
hold two or more offices. The Executive Chairmanshall be a director
of the Corporation. Each officer shall hold office until the end of
the period for which such officer was elected, and until his or her successor
has been elected and has qualified, unless he or she is earlier
removed.
2.
Duties
and Authority of Executive Chairman and Chairman of the
Board
. Following the annual meeting of shareholders in 2008, the
Company shall have a corporate officer who shall hold the position of Executive
Chairman and Chairman of the Board. Subject only to the authority of
the Board, the Executive Chairman shall have responsibility for the strategy
and
policy of the Corporation. Unless otherwise directed by the Board,
the chief executive officer shall be subject to the authority and supervision
of
the Executive Chairman. The Executive Chairman shall preside at
shareholder meetings and Board meetings. He shall have the general powers and
duties of management usually vested in the office of Executive Chairman of
a
corporation.
3.
Duties
and Authority of Chief Executive Officer
. Subject only to the
authority of the Executive Chairman and the Board of Directors, and
except as otherwise provided in these By-Laws, the chief executive officer
shall
have responsibility for the business and affairs of the
Corporation. Unless otherwise directed by the Board, all other
executive officers, including the President, shall be subject to the authority
and supervision of the chief executive officer. The chief executive
officer may enter into and execute in the name of the Corporation contracts
or
other instruments in the regular course of business or contracts or other
instrument not in the regular course of business which are authorized, either
generally or specifically, by the Board. In the absence of the
Executive Chairman, the chief executive officer shall preside at shareholder
meetings and, if a director, Board meetings. In the event of the disability
of
the Executive Chairman, the chief executive officer, if a director, shall
perform the duties and exercise the power of the Executive
Chairman. Except as otherwise provided in these By-Laws, he shall
have the general powers and duties of management usually vested in the office
of
chief executive officer of a corporation.
4.
Duties
and Authority of President
. Subject only to the authority of the
chief executive officer, the Executive Chairman and the Board, the president
shall have responsibility for the business and affairs f the
Corporation. Unless otherwise directed by the Board, all other
non-executive officers shall be subject to the authority and supervision of
the
president. The president may enter into and execute in the name of
the Corporation contracts or other instruments in the regular course of business
or contracts or other instrument not in the regular course of business which
are
authorized, either generally or specifically, by the Board. Except as
otherwise provided in these By-Laws, he shall have the general powers and duties
of management usually vested in the office of president of a corporation.
Following the annual meeting of shareholders in 2008, the president shall also
be the chief executive officer and shall have the duties and authority described
in Article V.3 above.
5.
Duties
and Authority of Vice Presidents
. Each vice president shall
perform such duties and have such authority as from time to time may be
delegated to him by the chief executive officer, the president or by the
Board. The Board shall have the authority to append such prefixes as
“executive,” “senior” and “assistant” to any vice president’s title as it shall
determine. In the absence of the chief executive officer and the
president or in the event of the president’s death, inability, or refusal to
act, such vice president as shall have been designated by the Board or, in
the
absence of such designation, by the chief executive officer, shall perform
the
duties and be vested with the authority of the president.
6.
Duties
and Authority of Treasurer
. The treasurer shall have the custody
of the funds and securities of the Corporation and shall keep or cause to be
kept regular books of account for the Corporation. The treasurer
shall perform such other duties and possess such other powers as are incident
to
that office or as shall be assigned by the Executive Chairman, chief executive
officer, president or the Board.
7.
Duties
and Authority of Secretary
. The secretary shall cause notices of
all meetings to be served as prescribed in these By-Laws and shall keep or
cause
to be kept the minutes of all meetings of the shareholders and the
Board. The secretary shall have charge of the seal of the
Corporation. The secretary shall perform such other duties and
possess such other powers as are incident to that office or as are assigned
by
the president or the Board.
8.
Vacancies
. Any
vacancy in any office may be filled by the Board.
9.
Removal
and Resignation
. Any officer may be removed, either with or
without cause, by the Board or by any officer upon whom the power of removal
has
been conferred by the Board. An officer elected by the shareholders
may be removed, with or without cause, only by vote of the shareholders but
his
or her authority to act as an officer may be suspended by the Board for
cause. Removal of an officer shall be without prejudice to the
officer’s contract rights, if any. Election or appointment of an
officer shall not of itself create contract rights. Any officer may
resign at any time by giving written notice to the Board or to the
president. A resignation shall take effect on the date of the receipt
of the notice or at any later time specified therein and, unless otherwise
specified therein, the acceptance of the resignation shall not be necessary
to
make it effective.
ARTICLE
VII
CAPITAL
STOCK AND OTHER SECURITIES
1.
Issuance
of Capital Stock and Other Securities
. Certificates of any class
of Capital Stock and certificates representing any other securities of the
Corporation shall be signed by the Executive Chairman, chief executive officer,
president, or any vice president and countersigned by the secretary, any
assistant secretary, the treasurer or any assistant treasurer. The
signature of each officer may be an engraved or printed facsimile. If
an officer or transfer agent or registrar whose facsimile signature has been
placed upon certificates ceases to hold the official capacity in which he or
she
signed, the certificates may continue to be used. The certificates
may, but need not, be sealed with the seal of the Corporation, or a facsimile
of
the seal. The certificates shall be countersigned and registered in
whatever manner the Board may prescribe.
2.
Lost,
Stolen and Destroyed Certificates
. In case of lost, stolen or
destroyed certificates, new certificates may be issued to take their place
upon
receipt by the Corporation of a bond of indemnity and under whatever regulations
may be prescribed by the Board. The giving of a bond of indemnity may
be waived.
3.
Transfer
of Securities
. The shares of the Capital Stock or any other
registered securities of the Corporation shall be transferable on the books
of
the Corporation by the holder thereof in person or by that person’s authorized
agent, or by the transferee, upon surrender for cancellation to the relevant
transfer agent of an outstanding certificate or certificates for the same number
of shares or other security with an assignment and authorization to transfer
endorsed thereon or attached thereto, duly executed, together with such proof
of
the authenticity of the signature and of the power of the assignor to transfer
the securities as the Corporation or its agents may require.
4.
Fractional
Shares
. The Corporation may, but shall not be required to, issue
certificates for fractions of a share where necessary to effect authorized
transactions, or the Corporation may pay in cash the fair value of fractions
of
a share as of the time when those entitled to receive such fractions are
determined, or it may issue scrip in registered or bearer form over the manual
or facsimile signature of an officer of the Corporation or of its agent,
exchangeable as therein provided for full shares, but such scrip shall not
entitle the holder to any rights of a shareholder except as therein
provided.
ARTICLE
VIII
AMENDMENTS
TO AND EFFECT OF
BY-LAWS;
FISCAL YEAR; SEAL;
CHECKS;
CONTRACTS; RECORDS
1.
Force
and Effect of By-Laws
. These By-Laws are subject to the
provisions of the applicable law, including the New Jersey Business Corporation
Act, and the Certificate of Incorporation, as it may be amended from time to
time. If any provision in these By-Laws is inconsistent with a
provision in that Act or the Certificate of Incorporation, the provision of
that
Act or the Certificate of Incorporation shall govern.
2.
Amendments
to By-Laws
. These By-Laws may be altered, amended or repealed by
the shareholders or the Board in accordance with the terms of the Certificate
of
Incorporation, these By-laws and applicable law. Any By-Law adopted,
amended or repealed by the shareholders may be amended or repealed by the Board,
unless the resolution of the shareholders adopting such By-Law expressly
reserves to shareholders the right to amend or repeal it.
3.
Fiscal
Year
. The fiscal year of the Corporation shall begin on the first
day of October of each year.
4.
Seal
. The
corporate seal shall have inscribed thereon the name of the Corporation, the
year of its incorporation, and the words “Corporate Seal New
Jersey”. The corporate seal may be used by causing it or a facsimile
thereof to be impressed or reproduced on a document or instrument, or affixed
thereto. Except to the extent required by applicable law or by
resolution of the Board, no contract, instrument or other document executed
by
or on behalf of the Corporation, or to which the Corporation is otherwise a
party, shall be required to bear the corporate seal.
5.
Checks,
Drafts, Etc
. All checks, drafts or other orders for the payment
of money, notes or other evidences of indebtedness, issued in the name of or
payable to the Corporation, shall be signed or endorsed by the person or persons
and in such manner, manually or by facsimile signature, as shall be determined
from time to time by the Board.
6.
Execution
of Contracts
. The Board may authorize any officer or officers,
employee or employees, or agent or agents of the Corporation, to enter into
any
contract or execute any instrument in the name of and on behalf of the
Corporation. The authority may be general or confined to specific
instances.
7.
Records
. The
Corporation shall keep books and records of account and minutes of the
proceedings of the shareholders, Board and such committees as the Board may
determine. Such books, records and minutes may be kept outside the
State of New Jersey. The Corporation shall keep at its principal
office, its registered office, or at the office of its registrar and transfer
agent, a record or records containing the names and addresses of all
shareholders, the number, class and series of shares held by each and the dates
when they respectively became the owners of record thereof. Any of
the foregoing books, minutes or records may be in written form or in any other
form capable of being converted into readable form within a reasonable
time.
Any
person who shall have been a shareholder of record of the Corporation for at
least six months immediately preceding his demand, or any person holding, or
so
authorized in writing by the holders of, at least five percent of the
outstanding shares of any class or series, upon at least five days’ written
demand shall have the right for any proper purpose to examine in person or
by
agent or attorney, during usual business hours, the minutes of the proceedings
of the shareholders and record of shareholders and to make extracts therefrom
at
the places where the same are kept.
ARTICLE
IX
INDEMNIFICATION
1.
General
. The
Corporation shall indemnify an Indemnitee (as hereinafter defined) against
Liabilities (as hereinafter defined) and advance Expenses (as hereinafter
defined) to an Indemnitee to the fullest extent permitted by applicable law
and
as provided in this Article IX. An Indemnitee shall be entitled to
the indemnification provided in this Section 1, if, by reason of his being
or
having been an Officer/Director (as hereinafter defined), he is, or is
threatened to be made, a party to any threatened, pending, or completed
Proceeding (as hereinafter defined). Pursuant to this Section 1, an
Indemnitee shall be indemnified against Expenses and Liabilities actually
incurred by him or on his behalf in connection with such Proceeding or any
claim, issue or matter therein.
2.
Advancement
of Expenses
. The Corporation shall advance all Expenses incurred
by or on behalf of an Indemnitee in connection with any Proceeding upon the
receipt by the Corporation of a statement or statements from the Indemnitee
requesting such advance or advances from time to time, whether prior to or
after
final disposition of such Proceeding. Such statement or statements
shall reasonably evidence the Expenses incurred by the Indemnitee or refer
to
invoices or bills for Expenses furnished or to be furnished directly to the
Corporation, and shall include or be preceded or accompanied by an undertaking
by or on behalf of the Indemnitee to repay any Expenses advanced unless it
shall
ultimately be determined pursuant to Section 5 of this Article IX that the
Indemnitee is entitled to be indemnified against such Expenses.
3.
Indemnification
for Expenses of a Witness
. Notwithstanding any other provision of
this Article IX, to the extent that an Indemnitee is, by reason of his being
or
having been an Officer/Director, a witness in any Proceeding in which such
Indemnitee is not also a party, the Corporation shall indemnify such witness
against all Expenses actually incurred by him or on his behalf in connection
therewith.
4.
Limitation
on
Indemnity
. No
indemnification shall be made to any Indemnitee pursuant to this Article IX
to
the extent that, in connection with the relevant Proceeding, a judgment or
other
final adjudication adverse to the Indemnitee establishes that his acts or
omissions (a) were in breach of such Indemnitee’s duty of loyalty to the
Corporation or its shareholders, as defined in subsection (3) of N.J.S. 14A:2-7,
(b) were not in good faith or involved a knowing violation of law, or (c)
resulted in the receipt by such Indemnitee of an improper personal
benefit. In the event of any such finding, the Indemnitee shall
promptly disgorge and pay over to the Corporation any amounts
theretofore paid to such Indemnitee pursuant to this Article IX, including
any
advance of Expenses pursuant to Section 2 of this Article IX. The
termination of any Proceeding or of any claim, issue or matter therein by
judgment, order, settlement or conviction, or upon a plea of
nolo
contendere
or its equivalent, shall not of itself adversely
affect the right of an Indemnitee to indemnification or create a presumption
that an Indemnitee did not act in good faith or that an Indemnitee had
reasonable cause to believe that his conduct was unlawful.
5.
Procedure
for Determination of Entitlement to Indemnification
.
(a) To
obtain indemnification under this Article IX, an Indemnitee shall submit to
the
Corporation a written request for indemnification, and provide for the
furnishing to the Corporation of such documentation and information as is
reasonably available to the Indemnitee and is reasonably necessary to determine
whether and to what extent the Indemnitee is entitled to
indemnification. The secretary shall, promptly upon receipt of such a
request for indemnification, advise the Board in writing that the Indemnitee
has
requested indemnification.
(b) Upon
written request by an Indemnitee for indemnification pursuant to Section 5(a)
of
this Article IX, a written determination with respect to the Indemnitee’s
entitlement thereto shall be made: (i) if a Change in Control (as hereinafter
defined) shall have occurred, by Independent Counsel (as hereinafter defined);
(ii) if a Change in Control shall not have occurred, (A) by the Board by a
majority vote of a quorum consisting of Disinterested Directors (as hereinafter
defined), or (B) by a majority vote of a quorum of Disinterested Directors
on a
Committee of the Board authorized by the Board to make such determination,
or
(C) by Independent Counsel. If it is so determined that the
Indemnitee is entitled to indemnification, payment to the Indemnitee shall
be
made in a timely fashion. An Indemnitee shall cooperate with the
person, persons or entity making such determination with respect to the
Indemnitee’s entitlement to indemnification, including providing to such person,
persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure
and
which is reasonably available to the Indemnitee and reasonably necessary to
such
determination. Any costs or expenses (including attorneys’ fees and
disbursements) incurred by an Indemnitee in so cooperating with the person,
persons or entity making such determination shall be borne by the Corporation
(irrespective of the determination as to an Indemnitee’s entitlement to
indemnification).
(c) In
the event the determination of entitlement is to be made by Independent Counsel
pursuant to Subsection 5(b) of this Article IX, the Independent Counsel shall
be
selected as provided in this Subsection 5(c). If a Change in Control
shall not have occurred, the Independent Counsel shall be selected by the Board
of Directors or a Committee thereof authorized by the Board to make such
selection, and the Corporation shall give written notice to the Indemnitee
advising him of the identity of the Independent Counsel so
selected. If a Change of Control shall have occurred, the Independent
Counsel shall be selected jointly by the Indemnitee and the Board or a Committee
thereof authorized by the Board to make such determination. In the
event that the Board or such a Committee thereof cannot agree with the
Indemnitee on the choice of Independent Counsel, such Independent Counsel shall
be selected by the Board or a Committee thereof from among the New York City
law
firms having more than 100 attorneys. The Corporation shall pay any
and all reasonable fees and expenses of Independent Counsel incurred by such
Independent Counsel in connection with acting pursuant to Subsection 5(b) of
this Article IX, and the Corporation shall pay all reasonable fees and expenses
incident to the procedures of this Subsection 5(c), regardless of the manner
in
which such Independent Counsel was selected or appointed.
6.
Presumptions
and Effect of Certain Proceedings
.
(a) If
a Change in Control shall have occurred, in making a determination with respect
to entitlement to indemnification hereunder, the person, persons or entity
making such determination shall presume that an Indemnitee is entitled to
indemnification under this Article if the Indemnitee has submitted a request
for
indemnification in accordance with Subsection 5(a) of this Article IX, and
the
Corporation shall have the burden of proof to overcome that presumption in
connection with the making by any person, persons or entity of any determination
contrary to that presumption.
(b) If
the person, persons or entity empowered or selected under Section 5 of this
Article IX to determine whether an Indemnitee is entitled to indemnification
shall not have made such determination in a timely fashion after receipt by
the
Corporation of the request therefor, the requisite determination of entitlement
to indemnification shall be deemed to have been made and the Indemnitee shall
be
entitled to such indemnification, absent (i) a misstatement by the Indemnitee
of
a material fact, or an omission of a material fact necessary to make the
Indemnitee’s statement not materially misleading, in connection with the request
for indemnification (which shall have been proven by clear and convincing
evidence), or (ii) a prohibition of such indemnification under applicable
law.
(c) Every
Indemnitee shall be presumed to have relied upon this Article IX in serving
or
continuing to serve as an Officer/Director.
7.
Indemnification
of Estate; Standards for Determination
. If an Indemnitee is
deceased and would have been entitled to indemnification under any provision
of
this Article IX, the Corporation shall indemnify the Indemnitee’s estate and his
spouse, heirs, administrators and executors. When the Board,
Committee thereof or Independent Counsel acting in accordance with Section
5 of
this Article IX is determining the availability of indemnification under this
Article IX and when an Indemnitee is unable to testify on his own behalf by
reason of his death or mental or physical incapacity, said Board, Committee
or
Independent Counsel shall deem the Indemnitee to have satisfied applicable
standards set forth in the relevant section or sections of this Article IX
unless it is affirmatively demonstrated by clear and convincing evidence that
indemnification is not available thereunder.
8.
Limitation
of Actions and Release of Claims
. No legal action shall be
brought and no cause of action shall be asserted by or on behalf of the
Corporation or its Affiliates against an Indemnitee, his spouse, heirs,
executors or administrators after the expiration of two years from the date
the
Indemnitee ceases (for any reason) to serve as an Officer/Director, and any
claim or cause of action of the Corporation or its Affiliates shall be
extinguished and deemed released unless asserted by filing of a legal action
within such two-year period.
9.
Other
Rights and Remedies of Indemnitee
.
(a) The
Corporation shall purchase and maintain on behalf of Indemnitees such insurance
covering such Liabilities and Expenses arising from actions or omissions of
an
Indemnitee in his capacity as an Officer/Director as is obtainable and is
reasonable and appropriate in cost and amount.
(b) In
the event that (i) a determination is made pursuant to Section 5 of this Article
IX that an Indemnitee is not entitled to indemnification under this Article
IX,
(ii) advancement of Expenses is not timely made pursuant to Section 2 of this
Article IX, (iii) the determination of entitlement to indemnification is to
be
made by Independent Counsel pursuant to Subsection 5(b) of this Article IX
and
such determination shall not have been made and delivered in a written opinion
in a timely fashion after receipt by the Corporation of the request for
indemnification, (iv) payment of indemnification is not made pursuant to Section
3 of this Article IX in a timely fashion after receipt by the Corporation of
a
written request therefor, or (v) payment of indemnification is not made in
a
timely fashion after a determination has been made that an Indemnitee is
entitled to indemnification or such determination is deemed to have been made
pursuant to Section 6 of this Article IX, the Indemnitee shall be entitled
to an
adjudication in the Superior Court of the State of New Jersey, or in any other
court of competent jurisdiction, of his entitlement to such indemnification
or
advancement of Expenses. Alternatively, the Indemnitee, at his
option, may seek an award in arbitration to be conducted by a single arbitrator
pursuant to the rules of the American Arbitration Association. The
Indemnitee shall commence such proceeding seeking an adjudication or an award
in
arbitration in a timely manner following the date on which the Indemnitee first
has the right to commence such Proceeding pursuant to this Subsection
9(b). The Corporation shall not oppose the Indemnitee’s right to
exercise his rights under this Subsection 9(b).
(c) In
the event that a determination shall have been made pursuant to Section
5 of this Article that an Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant
to
this Section 9 shall be conducted in all respects as a de novo trial or
arbitration on the merits, and the Indemnitee shall not be prejudiced by reason
of that adverse determination. If a Change of Control shall have
occurred, in any judicial proceeding or arbitration commenced pursuant to this
Section 9 the Corporation shall have the burden of proving that the Indemnitee
is not entitled to indemnification or advancement of Expenses, as the case
may
be.
(d) If
a determination shall have been made or deemed to have been made pursuant to
Section 5 of this Article IX that an Indemnitee is entitled to indemnification,
the Corporation shall be bound by such determination in any judicial proceeding
or arbitration commenced pursuant to this Section 9, absent (i) a misstatement
by the Indemnitee of a material fact, or an omission of a material fact
necessary to make the Indemnitee’s statement not materially misleading, in
connection with the request for indemnification (which shall have been proven
by
clear and convincing evidence), or (ii) a prohibition of such indemnification
under applicable law.
(e) The
Corporation shall be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this Section 9 that the procedures and
presumptions of this Article are not valid, binding and enforceable and shall
stipulate in any such court or before any such arbitrator that the Corporation
is bound by all the provisions of this Article IX.
(f) In
the event that an Indemnitee, pursuant to this Section 9, seeks a judicial
adjudication of or an award in arbitration to enforce his rights under, or
to
recover damages for breach of, this Article, the Indemnitee shall be entitled
to
recover from the Corporation, and shall be indemnified by the Corporation
against, any and all expenses (of the types described in the definition of
Expenses in Section 12 of this Article IX) actually incurred by him in such
judicial adjudication or arbitration, but only if he prevails
therein. If it shall be determined in said judicial adjudication or
arbitration that the Indemnitee is entitled to receive part but not all of
the
indemnification or advancement of Expenses sought, the Expenses incurred by
the
Indemnitee in connection with such judicial adjudication or arbitration shall
be
appropriately prorated.
10.
Non-Exclusivity;
Survival of Rights; Subrogation
.
(a) The
rights of indemnification and to receive advancement of Expenses as provided
by
this Article shall not be deemed exclusive of any other rights to which an
Indemnitee may at any time be entitled under applicable law, the Certificate
of
Incorporation, the certificate of incorporation or other similar organizational
document of any Affiliate (as hereinafter defined) of the Corporation, the
By-Laws, the by-laws or other similar organizational document of any Affiliate
of the Corporation, any agreement, any insurance policy maintained or issued
directly or indirectly by the Corporation or any Affiliate of the Corporation,
a
vote of stockholders, a resolution of Disinterested Directors, or
otherwise. No amendment, alteration or repeal of this Article or of
any provision hereof shall be effective as to any Indemnitee with respect to
any
action taken or omitted by such Indemnitee as an Officer/Director prior to
such
amendment, alteration or repeal. The provisions of this Article IX
shall continue as to an Indemnitee whose status as an Officer/Director has
ceased and shall inure to the benefit of his heirs, executors and
administrators.
(b) In
the event of any payment under this Article IX, the Corporation shall be
subrogated to the extent of such payment to all of the rights of recovery of
the
Indemnitee, who shall execute all papers required and take all action necessary
to secure such rights, including execution of such documents as are necessary
to
enable the Corporation to bring suit to enforce such rights.
(c) The
Corporation shall not be liable under this Article IX to make any payment of
amounts otherwise indemnifiable hereunder if and to the extent that the
Indemnitee has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise.
11.
Severability
. If
any provision or provisions of this Article shall be held to be invalid, illegal
or unenforceable for any reason whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of this Article
(including without limitation, each portion of any subsection of this Article
IX
containing any such provision held to be invalid, illegal or unenforceable
that
is not itself invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby; and (b) to the fullest extent possible, the
provisions of this Article (including, without limitation, each portion of
any
subsection of this Article IX containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
12. Definitions. For
purposes of this Article IX:
(a) “Affiliate”
or “Associate” shall have the same meaning as in Rule 405 under the Securities
Act of 1933, as amended.
(b) “Change
in Control” shall mean either:
(i) a
change in the membership of the Board such that one-third or more of its members
were neither recommended nor elected to the Board by a majority of those of
its
members (A) who are not Affiliates or Associates or representatives of a
beneficial owner described in clause (ii) below or (B) who were members of
the
Board prior to the time the beneficial owner became such;
or
(ii) The
attainment of “beneficial ownership” (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended, as Rule 13d-3 was in existence
on
the date hereof) by any person, corporation or other entity, or any group,
including, associates or affiliates of such beneficial owner, of more than
10%
of the voting power of all classes of Capital Stock, other than by any such
entity that held more than such percentage as of the date hereof.
(c) “Corporate
Agent” means a person who is or was a director, officer, employee, agent or
fiduciary of the Corporation or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which such person
is
or was serving at the request of the Corporation, but shall not include any
Officer/Director.
(d) “Disinterested
Director” means a Director who is not and was not a party to the Proceeding in
respect of which indemnification is sought by an Indemnitee.
(e) “Expenses”
means all reasonable costs, disbursements and counsel fees.
(f) “Indemnitee”
means any person who is, or is threatened to be made, a witness in, or a party
to, any Proceeding by reason of his being or having been an
Officer/Director.
(g) “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past five years
has been, retained to represent: (i) the Corporation or the
Indemnitee or, following a Change in Control, any person acquiring control
or
any beneficial owner referred to in clause (ii) of Section 12(b) of this Article
or any Affiliate or Associate of any such person or beneficial owner, in any
matter material to any such person, or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term “Independent Counsel” shall not include any person who
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Corporation or the
Indemnitee in an action to determine the Indemnitee’s rights under this Article
IX.
(h) “Liabilities”
shall mean amounts paid or incurred in satisfaction of settlements, judgments,
awards, fines and penalties.
(i) “Officer/Director”
shall mean any officer of the Corporation or any Director.
(j) “Proceeding”
includes any action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative, except one initiated by an Indemnitee
pursuant to Section 9 of this Article IX to enforce his rights under this
Article IX.
13.
Notices
. Any
notice, request or other communication required or permitted to be given to
the
Corporation under this Article IX shall be in writing and either delivered
in
person or sent by telex, telegram or certified or registered mail, postage
prepaid, return receipt requested, to the secretary of the Corporation and
shall
be effective only upon receipt by the secretary.
14.
Amendments
. This
Article IX may be amended or repealed only by action of the Board approved
by
the favorable vote of a majority of the votes cast by stockholders entitled
to
vote thereon at a meeting of stockholders for which proxies are solicited in
accordance with then applicable requirements of the Securities and Exchange
Commission, except that (i) the Board, without stockholder approval, may make
technical amendments that do not substantively affect the rights of an
Indemnitee hereunder and (ii) following a Change of Control, as defined in
clause (ii) of Subsection 12(b) of this Article IX, there shall also be required
for approval of any such amendment or repeal the favorable vote of a majority
of
the votes cast by persons other than the beneficial owners referred to in clause
(ii) of Section 12(b) of this Article IX and their Affiliates and
Associates.
15.
Indemnification
of Corporate Agents
. The Corporation may at the discretion of the
Board indemnify any Corporate Agent to the fullest extent permitted by
applicable law;
provided
, that the Corporation shall in any event
indemnify a Corporate Agent to the extent required by applicable
law. The procedures to be followed in the event of such
indemnification shall be such as may be determined by the Board in its
discretion;
provided
, that in the event any procedures are mandated by
applicable law, such procedures shall be
followed.