1
NEW JERSEY RESOURCES CORPORATION
BY-LAWS
ADOPTED NOVEMBER 20, 1981
AMENDED NOVEMBER 19, 1982
AMENDED DECEMBER 8, 1983
AMENDED JANUARY 29, 1986
AMENDED AND ADOPTED DECEMBER 17, 1986
AMENDED JANUARY 27, 1988
AMENDED NOVEMBER 29, 1995
AMENDED MARCH 10, 1997
AMENDED NOVEMBER 17, 1999
2
ARTICLE I
BOARD OF DIRECTORS
SECTION 1 - ELECTION. The business and affairs of the Company shall be
conducted under the direction of its Board of Directors, which shall have
all the powers of the Company except such as are by statute, by the
Certificate of Incorporation, or by these By-Laws conferred upon or
reserved to the stockholders. The number of directors constituting the
entire Board of Directors shall not be less than three, the exact number to
be determined from time to time by resolution adopted by the affirmative
vote of a majority of the entire Board of Directors, each director to hold
office until his successor shall have been elected and qualified. The
members of the Board of Directors shall be divided into classes in the
manner provided by Paragraph 7 of the Corporation's Certificate of
Incorporation and shall be elected and serve for such terms of office as
are provided therein.
Nominations of persons for election as directors may be made by the
Board of Directors or by any stockholder entitled to vote for the election
of directors. Any stockholder entitled to vote for the election of
directors may nominate a person or persons for election as director only if
written notice of such stockholder's intent is delivered to the Secretary
of the Company at the principal executive offices of the Company (i) with
respect to an election to be held at an annual meeting of stockholders, not
later than 75 days prior to the first anniversary of the preceding year's
annual meeting, or as set out below, and (ii) with respect to an election
to be held at a special meeting of stockholders for the election of
directors, not later than 10 days following the date on which public
announcement (as defined in Article III, Section 1 of these By-Laws) of the
date of such meeting is first made. In the event that the date of the
annual meeting is advanced by more than 30 days or delayed by more than 60
days from the anniversary date of the annual meeting, notice by the
stockholder must be delivered not later than 75 days prior to such annual
meeting, or, if the date of the annual meeting is less than 75 days from
the date on which public announcement of the date of such meeting is first
made, not later than or the 10th day following the day on which public
announcement of the date of such meeting is first made. Notwithstanding
anything in the foregoing sentence to the contrary, in the event that the
number of directors to be elected to the Board of Directors of the Company
is increased and there is no public announcement naming all of the nominees
for director or specifying the size of the increased Board of Directors
made by the Company at least 85 days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this
Section shall also be considered timely, but only with respect to nominees
for any new positions created by such increase, if it shall be delivered to
the Secretary of the Company not later than the close of business on the
10th day following the day on which such public announcement is first made.
Such stockholder's notice shall set forth: (a) the name and address of
the stockholder who intends to make the nomination and the name, address,
age, and principal occupation or employment of the person or persons to be
nominated; (b) a representation that the stockholder 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) the number and class of shares of the
Company which are owned
3
by such stockholder and the beneficial owner, if any, and the number and
class of shares, if any, beneficially owned by the nominee; (d) a
description of all arrangements or understandings between the stockholder
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 stockholder; (e) such other information regarding each nominee that is
required to be disclosed in connection with the solicitation of proxies for
the election of directors, or as otherwise required, in each case pursuant
to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (including, without limitation, such person's written
consent to being named in a proxy statement as a nominee and to serving as
a director if nominated). The Chairman of the Board or other person
presiding at a meeting of stockholders, may refuse to acknowledge the
nomination of any person not made in accordance with the procedures
prescribed by these By-Laws, and in that event the defective nomination
shall be disregarded.
Subject to limits, if any, contained in the Certificate of
Incorporation, the Board of Directors shall be authorized at any time to
increase the number of directors and to elect a new director to fill any
such newly created directorship, by resolution adopted by the affirmative
vote of the majority of the directors then in office. Any such new director
shall hold office until the next annual meeting of stockholders and until
his successor is elected.
If the office of any director becomes vacant for any reason, any such
vacancy shall be filled by the Board of Directors, by resolution adopted by
the affirmative vote of the majority of the remaining directors then in
office. Any such new director shall hold office for the unexpired term and
until his successor is elected. The stockholders may fill a directorship
resulting from a vacancy or from an increase in the number of directors
only if the Board of Directors shall not have done so.
The Board of Directors shall be authorized at any time by resolution to
increase the number of directors and, by a majority vote, to elect a new
director to fill any such newly created directorship. Any such new director
shall hold office until the next Annual Stockholders' Meeting and until his
successor is elected.
A director, or the entire Board of Directors may be removed only for
cause and only by the affirmative vote of the holders of at least 80% of
the voting power of the voting stock.
SECTION 2 - BOARD OF DIRECTORS MEETINGS. As soon as practicable, after
the Annual Meeting of Stockholders, the Board of Directors shall meet for
organization and elect a Chairman, who shall not ex officio be deemed an
officer or employee of the Company unless expressly so designated by the
Board as the Chief Executive Officer of the Company. The Chairman shall
preside at all meetings of the Board of Directors. The Board of Directors
may also elect a Vice Chairman, who shall not ex officio be deemed an
officer or employee of the Company, but who shall preside at any meeting of
the Board of Directors in the absence of the Chairman.
Regular meetings of the Board of Directors shall be held in alternate
months on the last Wednesday of each month unless otherwise determined by
resolution of the Board. The time
4
and place of each meeting shall be designated by resolution of the Board,
Chairman, the President, or the Secretary in the notice of meeting.
Special meetings of the Board of Directors may be called at any time by
the Chairman or the President. The Secretary shall also call such meeting
on the written request of a majority of the directors.
No notice shall be required for regular meetings of the Board of
Directors, provided the time and place shall have been previously fixed by
resolution of the Board. The meeting for organization may be held on the
day of and after the annual meeting of stockholders. Two days notice of a
special meeting of the Board of Directors shall be given, but this notice
may be waived at any time in writing or by telegraph. A meeting may be held
at any time without notice when all directors are present and consent
thereto. The Board of Directors may also act without a meeting by unanimous
written consent which shall be filed with the minutes of the Board.
At all meetings of the Board of Directors, the presence in person or by
telephonic conference call of a majority of directors shall constitute a
quorum for the transaction of business. A lesser number than a quorum,
however, may meet and adjourn to any day.
SECTION 3 - REMUNERATION. Directors, other than Company Officers, shall
receive remuneration in such amount as shall be fixed by the Board of
Directors from time to time.
ARTICLE II
OFFICERS
SECTION 1 - APPOINTMENT. The Board of Directors shall, as soon as
practicable after the Annual Meeting, meet for organization and shall elect
or appoint a president; such number of Vice Presidents as the Board may
direct; Treasurer; and a Secretary, any of whom may but need not be a
director, except that the officer designated as the Chief Executive Officer
as provided herein must be one of the directors.
The Board of Directors shall further designate either the Chairman of
the Board, or the President, as the Chief Executive Officer of the Company.
In the event that the Chairman of the Board is designated by the Board of
Directors as the Chief Executive Officer, the president shall be the Chief
Operating Officer of the Company. In the event that the President is
designated as the Chief Executive Officer, the Board may, in its
discretion, designate a Vice President as the Chief Operating Officer. The
Board of Directors shall further designate an officer as the Chief
Financial Officer of the Company.
The Board of Directors may also elect or appoint one or more Assistant
Vice Presidents, Assistant Treasurers, Assistant Secretaries, and such
other officers as the Board shall from
5
time to time deem necessary, who shall have such authority and shall
perform such duties as may be prescribed in these By-Laws or by the Board
of Directors.
Any two or more offices may be held by the same person. All of said
officers shall hold their offices at the pleasure of the Board.
SECTION 2 - CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
preside at all meetings of the stockholders and shall have, under the
direction of the Board of Directors, overall executive responsibility for
the supervision, management, and control of the business of the Company and
of all departments of the Company's operations; he shall sign all
certificates of stock and all contracts and other instruments in the name
of the Company, unless otherwise ordered by the Board; and shall have the
authority and responsibility to do and perform all other duties as provided
by law, by these By-Laws, or which are otherwise incidental to his office.
SECTION 3 - CHIEF OPERATING OFFICER. The Chief Operating Officer, if
there be any such officer so designated, shall have general responsibility
for the operation and administration of the business of the Company subject
to the direction and control of the Chief Executive Officer and of the
Board of Directors. He shall perform such other duties as may be delegated
or assigned to him by the Chief Executive Officer, or by the Board of
Directors, and in the absence of the Chief Executive Officer, the Chief
Operating Officer shall perform the duties of the Chief Executive Officer,
and the performance of any such duty by the Chief Operating Officer shall
be conclusive evidence of his right to act.
SECTION 4 - CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
have overall responsibility for the preparation and maintenance of the
Company's financial books and records, for the accuracy and integrity of
all reports of the Company's financial condition which are prepared or
issued under his authority, and for the financial affairs; and requirements
of the Company. Upon request, he shall make a report of the financial
condition of the Company to the Board of Directors or to the Chief
Executive Officer, and shall perform such other duties as may be delegated
or assigned to him by the Board of Directors or by the Chief Executive
Officer.
SECTION 5 - VICE PRESIDENTS. Each Vice President shall have such powers
and shall perform such duties as may be delegated or assigned to him by the
Board of Directors, by the Chief Executive Officer (if other than the
President), by the President, or by the Chief Operating Officer ( if other
than the President), and in the absence of the President: the Vice
Presidents severally, in the order to be designated by the chief Executive
Officer, shall perform the duties of the President, and the performance of
any such duty by a Vice President shall be conclusive evidence of his right
to act.
SECTION 6 - ASSISTANT VICE PRESIDENT. Each Assistant Vice President
shall have such powers and perform such duties as may be assigned to him by
the Board of Directors, by the Chief Executive Officer (if other than the
President), by the President, or by any Vice President and the performance
of any such duty shall be conclusive evidence of his right to act.
6
SECTION 7 - SECRETARY. The Secretary shall keep minutes of all meetings
of the Board of Directors and Committees thereof, and of the stockholders,
and shall give all notices of meetings of the stockholders, and of the
Board of Directors and Committees thereof. He shall have custody of all
deeds, contracts, agreements, and other records, except as otherwise
provided in these By-Laws, or by the Board of Directors, and shall attend
to such correspondence of the Company as the Board of Directors or the
Chief Executive Officer shall direct. He shall be the custodian of the seal
of the Company and shall affix it to any instrument requiring the same,
except as otherwise provided herein or by the Board of Directors. He shall
further perform such other duties as may be delegated or assigned to him by
the Board of Directors, or by the Chief Executive Officer, and the
performance of any such duty shall be conclusive evidence of his right to
act.
SECTION 8 - ASSISTANT SECRETARY. Each Assistant Secretary, if there be
any such officer, shall perform such duties as may be assigned to him by
the Board of Directors, by the Chief Executive Officer, or by the Secretary
and the performance of any such duties shall be conclusive evidence of his
right to act.
SECTION 9 - TREASURER. The Treasurer shall have charge of all receipts
and disbursements of the Company and shall be the custodian of the
Company's funds. He shall have full authority to receive and give receipts
for all monies due and payable to the Company from any source whatever, and
to endorse checks, drafts and warrants in its name and on its behalf, and
full discharge for the same to give. The Treasurer shall also have full
authority to sign all checks, notes, drafts and certificates of stock. A
report of the financial condition of the Company shall be made by the
Treasurer or to the Chief Executive Officer whenever so requested by either
of them. He shall further perform such other duties as may be delegated or
assigned to him by the Board of Directors, by the Chief Executive Officer,
or by the Chief Financial Officer, and the performance of any such duty
shall be conclusive evidence of his right to act.
SECTION 10 - ASSISTANT TREASURER. Each Assistant Treasurer, if there be
any such officer, shall have such powers and shall perform such duties as
may be assigned to him by the Board of Directors, or by the Chief Executive
Officer, by the Chief Financial Officer, or by the Treasurer, and the
performance of any such duty shall be conclusive evidence of his right to
act.
ARTICLE III
STOCKHOLDERS' MEETINGS
SECTION 1 - ANNUAL MEETING OF STOCKHOLDERS. The annual meeting of the
stockholders shall be held on the last Wednesday in the month of January in
each year, at the hour of 10:30 a.m., at the principal office of the
Company in New Jersey, or at such other date, time and place as may be
fixed from time to time by resolution of the Board of
7
Directors and set forth in the notice of the meeting, for the purpose of
electing directors and transacting such other business as may properly come
before the meeting.
At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before an annual meeting. To
be properly brought before an annual meeting, business must be (i)
specified in the notice of the meeting (or any supplement thereto) given by
or at the direction of the Board of Directors, (ii) otherwise properly
brought before the meeting by or at the direction of the Board of Directors
or (iii) otherwise properly brought before the meeting by a stockholder of
the Company who was a stockholder of record at the time of giving of notice
provided for in this Section, who is entitled to vote at the meeting and
who complied with the notice procedures set forth in this Section. For
business to be properly brought before an annual meeting by a stockholder,
the stockholder must have given timely notice thereof in writing to the
Secretary of the Company, at the principal executive offices of the
Company. To be timely, a stockholder's notice shall be delivered not less
than 75 days prior to the first anniversary of the preceding year's
meeting; provided however, that in the event that the date of the annual
meeting is advanced by more than 30 days or delayed by more than 60 days
from such anniversary date, notice by the stockholder, to be timely, must
be so delivered not later than the 75th day prior to such annual meeting or
the 10th day following the day on which public announcement (as defined
herein) of the date of such meeting is first made.
Such stockholder's notice shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the meeting and
the reasons for conducting such business at the meeting and any material
interest in such business of such stockholder and the beneficial owner, if
any, on whose behalf the proposal is made; and (ii) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the
proposal is made (A) the name and address of such stockholder, as they
appear on the Company's books, and of such beneficial owner and (B) the
class and number of shares of the Company which are owned beneficially and
of record by such stockholder and such beneficial owner; and (iii) in the
event that such business includes a proposal to amend either the
Certificate of Incorporation or the Bylaws of the Company, the language of
the proposed amendment. Notwithstanding anything in these By-Laws to the
contrary, no business shall be conducted at any annual meeting except in
accordance with this paragraph, and the Chairman of the Board or other
person presiding at an annual meeting of stockholders, may refuse to permit
any business to be brought before an annual meeting without compliance with
the foregoing procedures. For the purposes of this paragraph "public
announcement" shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or comparable national news service or
in a document publicly filed by the Company with the Securities and
Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange
Act. In addition to the provisions of this paragraph, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth
herein. Nothing in these By-Laws shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Company's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
8
Each share of stock entitled to vote at any meeting shall be entitled
to one vote, which vote may be given either in person or by proxy, but no
proxy shall be valid for more than eleven months unless a longer time is
expressly provided therein, but in no event shall a proxy be valid after
three years from the date of execution.
Every proxy shall be executed in writing by the shareholder or his
agent, except that a proxy may be given by a shareholder or his agent by
telegram, cable, telephonic transmission or by 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 the shareholder or his agent.
SECTION 2 - SPECIAL MEETINGS OF STOCKHOLDERS. Special meetings of the
stockholders may be called at any time by the Chief Executive Officer, or
upon the order of the Board of Directors, or upon the written request of
the holders of a majority of the capital stock outstanding at the time and
entitled to vote there at.
SECTION 3 - NOTICE OF MEETINGS OF STOCKHOLDERS; POSTPONEMENT OF
MEETINGS; OPENING AND CLOSING OF POLLS. Unless waived, written notice of
the time, place, and purpose or purposes of all stockholders' meetings,
either annual or special, shall be given by the Secretary not less than ten
nor more than sixty days before the date of the meeting, either personally
or by mail, to each stockholder entitled to vote at the meeting at his last
post office address as shown on the books of the Company.
Any previously scheduled annual or special meeting of the stockholders
may be postponed by resolution of the Board of Directors upon public
announcement made on or prior to the date previously scheduled for such
annual or special meeting.
The date and time for the opening and the closing of the polls for each
matter to be voted upon at any meeting of stockholders shall be announced
at the meeting by or pursuant to the direction of the officer presiding at
the meeting.
SECTION 4 - RECORD DATES. The Board of Directors by resolution shall
have power to fix in advance a date, not exceeding sixty days or less than
ten days preceding the date of any meeting of stockholders, and not
exceeding sixty days preceding the date for the payment of any dividend, or
the date for the allotment of rights, or the date when any change or
conversion or exchange of capital stock shall go into effect, as a record
date for the determination of the stockholders' vote at any such meeting or
entitled to receive payment of any such dividend, or any such allotment of
rights or to exercise the rights in respect to any such change, conversion
or exchange of capital stock, and in such case stockholders of record on
the date so fixed shall be exclusively entitled to such notice of and to
vote at such meeting, or to receive payment of such dividend, or allotment
of rights, or to exercise such rights, as the case may be, not withstanding
any transfer of any stock on the books of the Company after any such record
date so fixed as aforesaid.
9
SECTION 5 - QUORUM OF STOCKHOLDERS. At any meeting of the stockholders,
the holders of a majority of all the shares of the capital stock of the
Company entitled to vote at such meeting, present in person or represented
by proxy, shall constitute a quorum of the stockholders for all purposes,
unless the representation of a larger number shall be required by law, and
in that case, the representation of the number so required shall constitute
a quorum.
If the holders of the amount of stock necessary to constitute a quorum
shall fail to attend in person or by proxy at the time and place fixed by
these By-Laws for an annual meeting or fixed by notice as above provided
for a special meeting, a majority in interest of the stockholders present
in person or by proxy may adjourn from time to time, without notice other
than by announcement at the meeting, until holders of the amount of stock
requisite to constitute a quorum shall attend. At any such adjourned
meeting at which a quorum shall be present any business may be transacted
which might have been transacted at the meeting as originally called.
ARTICLE IV
COMMITTEES
SECTION 1 - EXECUTIVE COMMITTEE. The Board of Directors may appoint an
Executive Committee of not less than three of its members, including ex
officio the Chairman of the Board and the Chief Executive Officer (if other
than the Chairman). The Chairman shall, ex officio be the Chairman of the
Executive Committee and shall preside at its meetings.
The Executive Committee shall hold regular meetings at such times and
places as shall be designated by resolution of the Board or of the
Committee, or in the notice of meeting. Special meetings of the Executive
Committee may be called at any time by the Chairman or by the Chief
Executive Officer (if other than the Chairman) and shall be called upon the
written request of a majority of the members thereof.
No notice shall be required for regular meetings of the Executive
Committee, provided the time and place thereof shall have been previously
fixed by resolution of the Board or the Committee. Two days notice of a
special meeting of the Executive Committee shall be given to each member,
but this notice may be waived by such member at any time in writing or by
telegraph. A meeting of the Executive Committee may be held at any time
without notice when all the members are present and consent thereto. The
Executive Committee may also act without a meeting, by unanimous written
consent of the members thereof which shall be filed with the minutes of the
Board. At every meeting of the Executive Committee, the presence in person
or by telephonic conference call, of a majority of the members thereof
shall constitute a quorum for the transaction of business.
10
During the intervals between the meetings of the Board of Directors,
the Executive Committee shall possess and may exercise all the powers of
the Board of Directors as may be permitted by law in the management and
direction of the business and the conduct of the affairs of the Company, in
such manner as the Executive Committee shall deem best for the interests of
the Company, in all cases in which specific directions shall not have been
given by the Board of Directors.
All action taken by the Executive Committee shall be reported to the
Board of Directors at its meeting next succeeding such action.
SECTION 2 - AUDIT COMMITTEE. The Board of Directors shall appoint an
Audit Committee of not less than three of its members who are otherwise
independent of the management of the Company. The Audit Committee shall
make recommendations to the Board with respect to the retention of the
Company's independent auditors, and shall review the plan and scope of the
annual and other independent audits; consult with the Company's independent
auditors regarding audit results and financial statements, including
compliance with disclosure requirements; oversee the adequacy of the
Company's system of internal accounting control; and oversee the
effectiveness of the Company's internal audit function, including review
and consultation with the Company's internal auditors with respect to
internal audit results and recommendations.
SECTION 3 - OTHER COMMITTEES. The Board of Directors may, from time to
time, appoint such other committees for any purpose or purposes as the
Board may deem appropriate, which shall have such powers as shall be
specified in the resolution of appointment.
SECTION 4 - RECORDS AND REPORTS. All committees shall keep full records
of their proceedings, and shall report from time to time to the Board, as
called upon by the Board, or as provided by these By-Laws.
SECTION 5 - REMUNERATION. Directors, other than Company Officers, shall
receive such compensation for their services as a member of any Committee
of the Board in such amount as shall be fixed by the Board of Directors
from time to time.
ARTICLE V
COMPANY STOCK
SECTION 1 - TRANSFER OF SHARES. Shares of Company stock shall be
transferable only on the books of the Company by the holder or owner in
person or by power of attorney, on surrender of the certificate. The
canceled certificate shall be permanently attached to its original stub in
the book of certificates.
11
SECTION 2 - STOCKHOLDER LIST. It shall be the duty of the Secretary or
Assistant Secretary to prepare, at least ten days before every
stockholders' meeting, a true, full, and complete list of all the
stockholders of the Company entitled to vote at the ensuing meeting, with
the residence or other address of record of each and with the number of
shares held by each, which list shall be made and arranged in alphabetical
order, and shall, at all times during the usual hours for business, be open
to the examination of any stockholder.
SECTION 3 - LOST CERTIFICATES OF STOCK. Any person or persons applying
for a certificate of stock to be issued in lieu of one alleged to be lost
or destroyed, shall, pursuant to the laws of the State of New Jersey
relating to lost or destroyed certificates of stock, furnish to the Company
such information as the Board of Directors may require to ascertain whether
a certificate of stock has been lost or destroyed, and shall if required by
the Board, furnish a surety bond in form and amount satisfactory to the
Board to indemnify the Company and its transfer agent against any claim or
loss arising therefrom.
ARTICLE VI
STOCK OF OTHER CORPORATIONS
SECTION 1 - VOTING OF STOCK. Unless otherwise ordered by the Board of
Directors, the Chief Executive Officer or the President of the Company or,
in his or their absence, any Vice President, shall have full power and
authority on behalf of the Company to attend and to act and to vote at any
meetings of stockholders of any corporation in which the Company may hold
stock, and at any such meeting shall possess and may exercise any and all
the rights and powers incident to the ownership of such stock, and which as
the owner thereof, the Company might have possessed and exercised. The
Board of Directors or the Executive Committee, by resolution, from time to
time may confer like powers upon any other person or persons.
SECTION 2 - WAIVERS AND CONSENTS. Unless otherwise ordered by the Board
of Directors, the Chief Executive Officer or the President of the Company
or in his or their absence, any Vice President, shall have full power and
authority on behalf of the Company to waive notice of any meeting of
stockholders of any corporation in which the Company may hold stock, and to
authorize or approve and consent in writing to any action by any such
corporation to the same extent and with the same force and effect as an
individual stockholder of such corporation.
ARTICLE VII
FISCAL YEAR
SECTION 1. The fiscal year of the Company shall begin on October first
of each year.
12
ARTICLE VIII
SEAL
SECTION 1. The seal of the Company shall be similar to the impression
contained in the margin opposite hereto. It may at any time be changed by
resolution of the Board of Directors.
ARTICLE IX
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS
SECTION 1. Each person who is a party or is threatened to be made a
party, either as plaintiff, defendant, respondent, or otherwise, to any
action, suit, or proceeding, whether civil, criminal, administrative,
regulatory or investigative (a "Proceeding"), based upon, arising from,
relating to, or by reason of the fact that such person, or a person of whom
such person is the legal representative, is or was a director or officer of
the Company, or is or was serving at the request of the Company as a
director, officer, partner, trustee, employee, or agent of another foreign
or domestic corporation or non-profit corporation, cooperative,
partnership, joint venture, trust, or other incorporated or unincorporated
enterprise, or any employee benefit plan or trust (each, a "Company
Affiliate"), shall be indemnified and held harmless by the Company to the
fullest extent authorized by the NJBCA, as the same exists on the date of
the adoption of this Bylaw [March 12, 1997] or as may hereafter be amended
(but, in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification rights
than the NJBCA permitted the Company to provide prior to such amendment),
against any and all expenses, liability, and loss (including, without
limitation, investigation expenses and expert witnesses' and attorneys'
retainer, fees and expenses, judgments, penalties, fines, and amounts paid
or to be paid in settlement) actually incurred by such person in connection
therewith; provided, however, that, except for Proceedings seeking to
enforce rights under this Bylaw, the Company shall indemnify any such
person seeking to enforce such rights in connection with a Proceeding (or
part thereof) initiated by such person only if such Proceeding (or part
thereof) was authorized by a majority vote of the Board of Directors. The
right to indemnification conferred in this Article IX shall be a contract
right and shall include the right to be paid by the Company for expenses to
be incurred in defending or prosecuting any such Proceeding in advance of
its final disposition.
SECTION 2. The right to indemnification and the payment of expenses
incurred in defending a Proceeding in advance of its final disposition
conferred in this Article IX shall not be exclusive of any other right
which any person may be entitled under any statute, provision of the
Restated Certificate of Incorporation, or Bylaw, an agreement, a resolution
13
of shareholders or directors, or otherwise both as to action in such
person's official capacity and as to action in another capacity while
holding such office.
SECTION 3. The Company may purchase and maintain insurance or furnish
similar protection on behalf of any person who is a director, officer,
employee, or agent of the Company or who, while a director, officer,
employee, or agent of the Company, is serving at the request of the Company
as a director, officer, partner, trustee, employee, or agent of a Company
Affiliate, against any liability asserted against and incurred by such
director, officer, employee, or agent in such capacity or arising out of
such director's, officer's, employee's, or agent's status as such, whether
or not the Company would have the power to indemnify such director,
officer, employee, or agent against such liability under the NJBCA.
SECTION 4. The Board of Directors, or, if so authorized by the Board of
Directors and as it relates to the employees or agents of the Company, one
or more officers of the Company, may indemnify and advance expenses to
directors, officers, employees or agents of the Company on such terms and
conditions as the Board of Directors or any such officer or officers, as
applicable, deem appropriate under the circumstances.
SECTION 5. Anything in this Article IX to the contrary notwithstanding,
no elimination of this Bylaw and no amendment of this Bylaw adversely
affecting the right of any person to indemnification or advancement of
expenses hereunder shall be effective until the sixtieth day following
notice to such indemnified person of such action, and no elimination of or
amendment to this Bylaw shall deprive any such person of such person's
rights hereunder arising out of alleged or actual occurrences, acts, or
failures to act which had their origin prior to such sixtieth day.
SECTION 6. The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article IX shall, unless otherwise provided
when authorized, continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
ARTICLE X
AMENDMENTS
SECTION 1. These By-Laws may be amended or repealed (i) by action of a
majority of the Board of Directors at any regular or special meeting of the
Board of Directors, provided notice of such alteration, amendment, or
repeal shall be given in the notice of any such meeting, or (ii) except as
otherwise provided in Paragraphs 6, 7, 8, and 9 of the Certificate of
Incorporation of the Corporation, by action of the holders of a majority of
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for this purpose as one
class.