RESTATED
CERTIFICATE OF INCORPORATION
OF EMCORE CORPORATION
Reuben F. Richards, Jr., being over the age of eighteen and acting as a
duly authorized officer of Emcore Corporation and by virtue of the provisions of
the New Jersey Business Corporation Act, Title 14A of the Revised Statutes of
the State of New Jersey, hereby certifies that the Restated Certificate of
Incorporation of Emcore Corporation is as follows:
FIRST: The name of the Corporation is:
EMCORE Corporation
SECOND: The purpose for which this Corporation is organized is to engage in
any activity within the purposes for which corporations may be organized under
the New Jersey Business Corporation Act.
THIRD: The registered office of the Corporation is:
145 Belmont Drive
Somerset, NJ 08873
and the name of the corporation's registered agent at such address is:
Thomas G. Werthan
FOURTH: The total number of shares of Capital Stock of the Corporation
shall be 105,882,352 shares of which:
A. Of the Capital Stock, 100,000,000 shares shall consist of Common Stock
which shall be entitled to one vote per share of all matters which holders of
the Common Stock shall be entitled to vote on.
B. Of the Capital Stock, 5,882,352 shares shall consist of Preferred Stock
which may be divided into such classes and such series as shall be established
from time to time by resolutions of the Board of Directors and filed as an
amendment to this Certificate of Incorporation, without any requirement of vote
or class vote of shareholders. The Board of Directors shall have the right and
power to establish and designate in any such Class or Series Resolution such
priorities, powers, preferences and relative, participating, optional or other
special rights and qualifications, limitations and restrictions as it shall
determine.
FIFTH: A. The Board of Directors presently consists of nine (9) persons and
the names and addresses of the persons who currently serve on the Board of
Directors are as follows:
Name Address
Reuben F. Richards, Jr. 145 Belmont Drive
Somerset, NJ 08873
Thomas G. Werthan 145 Belmont Drive
Somerset, NJ 08873
Richard A. Stall 145 Belmont Drive
Somerset, NJ 08873
Thomas J. Russell Two North Tamiami Trail
Sarasota, Florida 34236
Robert Louis-Dreyfus c/o Harborstone Capital
152 West 57th Street, 21st Floor
New York, NY 10019
Hugh H. Fenwick 400 Mendham Road
Bernardsville, NJ 07924
John J. Hogan c/o Harborstone Capital
152 West 57th Street, 21st Floor
New York, N.Y. 10019
Shigeo Takayama 1-1-13 Shinjuku
Shinjuku, Tokyo 160
Japan
Charles Scott c/o Cordiant PLC
83-89 Whitfield Street
London, WIA-4XA
United Kingdom
B. The number of directors constituting the entire Board of Directors 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 of Directors; 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 of Directors shall be nine unless and
until otherwise fixed by the vote of not less than 66 2/3% of the entire Board
of Directors. The phrase "66 2/3% of the entire Board of Directors" as used in
this Restated Certificate of Incorporation shall be deemed to refer to 66 2/3%
of the number of directors constituting the Board of Directors as provided in or
pursuant to this Section B of this Article Fifth, without regard to any
vacancies then existing.
C. At the 1999 Annual Meeting of Shareholders, the Board of Directors shall
be divided into three classes, as nearly equal in number as the then total
number of directors constituting the entire Board of Directors permits, the
first class to expire at the 2002 Annual Meeting of Shareholders, the term of
office of the second class to expire at the 2001 Annual Meeting of Shareholders
and the term of office of the third class to expire at the 2000 Annual Meeting
of Shareholders. Commencing with 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 is elected and has qualified. Any vacancies in the Board of Directors
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 of Directors 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 shall have the right, voting separately as a class, to
elect one or more directors of the Corporation, 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.
D. Notwithstanding any other provisions of this Restated Certificate of
Incorporation or the By-Laws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, this Restated Certificate
of Incorporation of the Corporation or the By-Laws of the Corporation), any
director or the entire Board of Directors of the Corporation 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
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 of the
Corporation, the provisions of this Section D of this Article Fifth shall not
apply with respect to the director or directors elected by such holders of
Preferred Stock.
E. Notwithstanding any other provisions of this Restated Certificate of
Incorporation or the By-Laws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, this Restated Certificate
of Incorporation or the By-Laws of the Corporation), the affirmative vote of the
holders of 80% or more 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) shall be required to amend, alter, change or
repeal this Article Fifth.
SIXTH: Neither a Director nor an Officer shall be liable to the Corporation
or its shareholders for damages for breach of any duty owed to the Corporation
or its shareholders, except that this provision shall not relieve a Director or
an Officer from liability for any breach of duty based upon an act or omission
(a) in breach of such person's duty of loyalty to the Corporation or its
shareholders; (b) not in good faith or involving a knowing violation of law; or
(c) resulting in the receipt of such person of an improper personal benefit.
SEVENTH: Intentionally Left Blank.
EIGHTH: The Board of Directors by a vote of a majority of the entire Board
may lend money to, guarantee any obligation of or otherwise assist any officer
or employee of the Corporation who is also a director provided that such loan
shall be adequately secured and no such loan, guarantee or other assistance
shall be made unless there shall be an appropriate business purpose.
NINTH: The Corporation shall indemnify every officer and director of the
Corporation to the full extent permitted by law.
TENTH: A. In addition to any affirmative vote required by law or this
Restated Certificate of Incorporation or the By-Laws of the Corporation, and
except as otherwise expressly provided in Section B of this Article Tenth, a
Business Combination shall require the affirmative vote of not less than eighty
percent (80%) of the votes entitled to be cast by the holders of all then
outstanding shares of Voting Stock (as hereinafter defined), voting together as
a single class. Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage or separate class vote
may be specified, by law or in any agreement with any national securities
exchange or otherwise.
B. The provisions of Section A of this Article Tenth shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only such affirmative vote, if any, as is required by law or by
any other provision of this Restated Certificate of Incorporation or the By-Laws
of the Corporation, or any agreement with any national securities exchange, if
all of the conditions specified in either of the following paragraphs (1) or (2)
are met:
(1) The Business Combination shall have been approved by two-thirds of
the Continuing Directors (as hereinafter defined), whether such approval is
made prior to or subsequent to the acquisition of beneficial ownership of
the Voting Stock that caused the Interested Stockholder (as hereinafter
defined) to become an Interested Stockholder.
(2) All of the following conditions shall have been met:
(a) The aggregate amount of cash and the Fair Market Value (as
hereinafter defined) as of the date of the consummation of the
Business Combination of consideration other than cash to be received
per share by holders of Common Stock in such Business Combination
shall be at least equal to the highest amount determined under clauses
(i) and (ii) below:
(i) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers'
fees) offered or paid by or on behalf of the Interested
Stockholder for shares of Common Stock within the two-year period
immediately prior to the first public announcement of the
proposed Business Combination (the "Announcement Date") or in the
transaction in which the Interested Stockholder became an
Interested Stockholder (the "Determination Date"), whichever is
higher;
(ii) the Fair Market Value per share of Common Stock on the
Announcement Date or on the Determination Date, whichever is
higher; and
All per share prices shall be adjusted to reflect any intervening
stock splits, stock dividends, recapitalizations, combination of
shares or similar events.
(b) The aggregate amount of cash and the Fair Market Value as of
the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of
shares of any class or series of outstanding Capital Stock (as
hereinafter defined), other than Common Stock, shall be at least equal
to the highest amount determined under clauses (i), (ii) and (iii)
below:
(i) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers'
fees) offered or paid by or on behalf of the Interested
Stockholder for any share of such class or series of Capital
Stock in connection with the acquisition by the Interested
Stockholder of beneficial ownership of shares of such class or
series of Capital Stock within the two-year period immediately
prior to the Announcement Date or in the transaction in which the
Interested Stockholder became an Interested Stockholder,
whichever is higher;
(ii) the Fair Market Value per share of such class or series
of Capital Stock on the Announcement Date or on the Determination
Date, whichever is higher; and
(iii) (if applicable) the highest preferential amount per
share to which the holders of shares of such class or series of
Capital Stock would be entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs
of the Corporation regardless of whether the Business Combination
to be consummated constitutes such an event.
All per share prices shall be adjusted to reflect any intervening
stock splits, stock dividends, recapitalizations, combination of
shares or similar events. The provisions of this sub-paragraph (2)(b)
shall be required to be met with respect to every class or series of
outstanding Capital Stock, other than Common Stock, whether or not the
Interested Stockholder has previously acquired beneficial ownership of
any shares of a particular class or series of Capital Stock.
(c) The consideration to be received by holders of a particular
class or series of outstanding Capital Stock shall be in cash or in
the same form as previously had been paid by or on behalf of the
Interested Stockholder in connection with its direct or indirect
acquisition of beneficial ownership of shares of such class or series
of Capital Stock. If the consideration so paid for shares of any class
or series of Capital Stock varied as to form, the form of
consideration for such class or series of Capital Stock shall be
either cash or the form used to acquire beneficial ownership of the
largest number of shares of such class or series of Capital Stock
previously acquired by the Interested Stockholder.
(d) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business
Combination:
(i) except as approved by a majority of the Continuing
Directors, there shall have been no failure to declare and pay at
the regular date therefor any dividends (whether or not
cumulative) payable in accordance with the terms of any
outstanding Capital Stock;
(ii) there shall have been no reduction in the annual rate
of dividends paid on the Common Stock (except as necessary to
reflect any stock split, stock dividend or subdivision of the
Common Stock), except as approved by a majority of the Continuing
Directors;
(iii) there shall have been an increase in the annual rate
of dividends paid on the Common Stock as necessary to reflect any
reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction that
has the effect of reducing the number of shares of Common Stock,
unless the failure so to increase such annual rate is approved by
a majority of the Continuing Directors; and
(iv) such Interested Stockholder shall not have become the
beneficial owner of any additional shares of Capital Stock except
as part of the transaction that results in such Interested
Stockholder becoming an Interested Stockholder and except in a
transaction that, after giving effect thereto, would not result
in any increase in the Interested Stockholder's percentage of
beneficial ownership of any class or series of Capital Stock.
(e) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a
shareholder of the Corporation), of any loans, advances, guarantees,
pledges or other financial assistance or any tax credits or other tax
advantages provided by the Corporation, whether in anticipation of or
in connection with such Business Combination or otherwise.
(f) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (the "Act") (or any subsequent provisions replacing such
Act, rules or regulations) shall be mailed to all shareholders of the
Corporation at least 30 days prior to the consummation of such
Business Combination (whether or not such proxy or information
statement is required to be mailed pursuant to such Act or subsequent
provisions). The proxy or information statement shall contain on the
first page thereof, in a prominent place, any statement as to the
advisability (or inadvisability) of the Business Combination that the
Continuing Directors, or any of them, may choose to make and, if
deemed advisable by a majority of the Continuing Directors, the
opinion of an investment banking firm selected by a majority of the
Continuing Directors as to the fairness (or not) of the terms of the
Business Combination from a financial point of view to the holders of
the outstanding shares of Capital Stock other than any Interested
Stockholder and any Affiliate or Associate (as hereinafter defined),
of any Interested Stockholder, such investment banking firm to be paid
a reasonable fee for its services by the Corporation.
(g) Such Interested Stockholder shall not have made any major
change in the Corporation's business or equity capital structure
without the approval of a majority of the Continuing Directors.
C. For the purposes of this Article Tenth
(1) The term "Business Combination" shall mean:
(a) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested
Stockholder or (ii) any other corporation (whether or not itself an
Interested Stockholder) which is, or after such merger or
consolidation would be, an Affiliate or Associate of an Interested
Stockholder; or
(b) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions)
with any Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder involving any assets or securities of the
Corporation, any Subsidiary or any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder having an
aggregate Fair Market Value of 10% of the total assets of the
Corporation and its Subsidiaries as reflected on the consolidated
balance sheet of the Corporation and its Subsidiaries as of the end of
the Corporation's most recent fiscal year; provided that the sale or
other dispositions of securities of the Corporation to anyone other
than an Interested Stockholder or any Affiliate or Associate of an
Interested Stockholder shall not be deemed in itself to be a Business
Combination; or
(c) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of any
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder; or
(d) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its subsidiaries or any
other transaction (whether or not with or otherwise involving an
Interested Stockholder) that has the effect, directly or indirectly,
of increasing the proportionate share of any class or series of
Capital Stock, or any securities convertible into Capital Stock or
into equity securities of any Subsidiary, that is beneficially owned
by any Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder; or
(e) any agreement, contract or other arrangement providing for
any one or more of the actions specified in the foregoing clauses (a)
to (d).
(2) The term "Capital Stock" shall mean all capital stock of the
Corporation authorized to be issued from time to time under Article Fourth
of this Restated Certificate of Incorporation, and the term "Voting Stock"
shall mean all Capital Stock which by its terms may be voted on all matters
submitted to shareholders of the Corporation generally.
(3) The term "person" shall mean any individual, firm, corporation or
other entity and shall include any group comprised of any person and any
other person with whom such person or any Affiliate or Associate of such
person has any agreement, arrangement or understanding directly or
indirectly, for the purpose of acquiring, holding, voting or disposing of
Capital Stock.
(4) The term "Interested Stockholder" shall mean any person (other
than the Corporation, any Subsidiary, any pension, retirement,
profit-sharing employee stock ownership or other employee benefit plan of
the Corporation or any Subsidiary or any trustee of or fiduciary with
respect to any such plan when acting in such capacity or any person who on
January 1, 1999 was the beneficial owner, directly or indirectly, of more
than 10% of the Common Stock of the Corporation) who (a) acquires and
beneficially owns Voting Stock representing ten percent (10%) or more of
the votes entitled to be cast by the holders of all then outstanding shares
of Voting Stock; or (b) is an Affiliate or Associate of the Corporation and
at any time within the two-year period immediately prior to the date in
question acquired and beneficially owned Voting Stock representing ten
percent (10%) or more of the votes entitled to be cast by the holders of
all then outstanding shares of Voting Stock.
(5) A person shall be a "beneficial owner" of any Capital Stock (a)
which such person or any of its Affiliates or Associates beneficially owns,
directly or indirectly; (b) which such person or any of its Affiliates or
Associates has, directly or indirectly, (i) the right to acquire (whether
such right is exercisable immediately or subject only to the passage of
time), pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement, arrangement
or understanding; or (c) which are beneficially owned, directly or
indirectly, by any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing of any shares of
Capital Stock. For the purposes of determining whether a person is an
Interested Stockholder pursuant to paragraph (4) of this section C, the
number of shares of Capital Stock deemed to be outstanding shall include
shares deemed beneficially owned by such person through application of
paragraph (5) of this section C, but shall not include any other shares of
Capital Stock that may be issuable pursuant to any agreement, arrangement
or understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
(6) The terms "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 under the Act as in effect on
January 1, 1999.
(7) The term "Subsidiary" shall mean any corporation of which a
majority of any class of equity security is beneficially owned by the
Corporation; provided, however, that for the purposes of the definition of
Interested Stockholder set forth in paragraph (4) of this section C, the
term "Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is beneficially owned by the Corporation.
(8) The term "Continuing Director" shall mean any member of the Board
of Directors of the Corporation (the "Board") who is not an Affiliate or
Associate or representative of an Interested Stockholder in question in
connection with a particular Business Combination and either: (a) was a
member of the Board prior to the time that such Interested Stockholder
became an Interested Stockholder; or (b) is or was recommended or elected
to fill a vacancy on the Board, however caused, by at least three-quarters
of the Continuing Directors.
(9) The term "Fair Market Value" shall mean (a) in the case of cash,
the amount of such cash; (b) in the case of stock, the highest closing sale
price during the 30-day period ending on the date in question of a share of
such stock on the Composite Tape for New York Stock Exchange-Listed Stocks,
or, if such stock is not quoted on the Composite Tape, on the New York
Stock Exchange, or, if such stock is not listed on such exchange, on the
principal United States securities exchange registered under the Act on
which such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a share of such
stock during the 30-day period ending on the date in question on the
National Association of Securities Dealers, Inc. Automated Quotations
System or any similar system then in use, or if no such quotations are
available, the Fair Market Value on the date in question of a share of such
stock as determined by a majority of the Continuing Directors in good
faith; and (c) in the case of property other than cash or stock, the Fair
Market Value of such property on the date in question as determined in good
faith by a majority of the Continuing Directors.
(10) In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received" as used
in sub-paragraphs (2)(a) and (2)(b) of section B of this Article Tenth
shall include the shares of Common Stock and/or the shares of any other
class or series of Capital Stock retained by the holders of such shares.
D. The Board of Directors shall have the power and duty to determine for
the purposes of this Article Tenth, on the basis of information known to them
after reasonable inquiry, (a) whether a person is an Interested Stockholder, (b)
the number of shares of Capital Stock or other securities beneficially owned by
any person, (c) whether a person is an Affiliate or Associate of another, and
(d) whether the assets that are the subject of any Business Combination have, or
the consideration to be received for the issuance or transfer of securities by
the Corporation or any Subsidiary in any Business Combination has, an aggregate
Fair Market Value of more than 10% of the total assets of the Corporation and
its Subsidiaries as reflected on the consolidated balance sheet of the
Corporation and its Subsidiaries as of the end of the Corporation's most recent
fiscal year. Any such determination made in good faith shall be binding and
conclusive on all parties.
E. Nothing contained in this Article Tenth shall be construed to relieve
any Interested Stockholder from any fiduciary obligation imposed by law.
F. The fact that any Business Combination complies with the provisions of
section B of this Article Tenth shall not be construed to impose any fiduciary
duty, obligation or responsibility on the Board, or any member thereof, to
approve such Business Combination or recommend its adoption or approval to the
shareholders of the Corporation, nor shall such compliance limit, prohibit or
otherwise restrict in any manner the Board, or any member thereof, with respect
to evaluations of or actions and responses taken with respect to such Business
Combination.
G. Notwithstanding any other provisions of this Restated Certificate of
Incorporation or the By-Laws of the Corporation (and notwithstanding the fact
that a lesser percentage or separate class vote may be specified by law, this
Restated Certificate of Incorporation or the By-Laws of the Corporation), the
affirmative vote of the holders of not less than eighty percent (80%) of the
votes entitled to be cast by the holders of all then outstanding shares of
Voting Stock, voting together as a single class shall be required to amend or
repeal, or adopt any provisions inconsistent with, this Article Tenth.
ELEVENTH: This Corporation shall have perpetual existence.
IN WITNESS, the undersigned has set his hand this 21st day of December,
2000.
/s/ Reuben F. Richards, Jr.
---------------------------
Reuben F. Richards, Jr.
President and CEO