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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
January 6, 2024
Date of Report (Date of earliest
event reported)
EMCORE CORPORATION
Exact Name of Registrant as Specified in its
Charter
New Jersey |
001-36632 |
22-2746503 |
State of Incorporation |
Commission File Number |
IRS Employer Identification Number |
2015 W. Chestnut Street, Alhambra, California,
91803
Address of principal executive offices, including
zip code
(626) 293-3400
Registrant's telephone number, including area
code
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered
pursuant to Section 12(b) of the Act:
Title
of Each Class |
Trading symbol(s) |
Name
of Each Exchange on Which Registered |
Common stock, no par value |
EMKR |
The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ¨
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act. ¨
Item 1.01 | Entry into a Material
Definitive Agreement. |
On January 10, 2024, EMCORE Corporation (the “Company”)
entered into a cooperation agreement (the “Cooperation Agreement”) with Bradley L. Radoff and certain of his affiliates set
forth in the signature pages thereto (collectively, the “Radoff Parties”).
Pursuant to the Cooperation Agreement, the Board of Directors of the
Company (the “Board”) (i) accepted the resignation of Mr. Stephen L. Domenik as Chairman of the Board and a director
of the Company, (ii) increased the size of the Board by one (1) member to a total of six (6) directors, and (iii) appointed
Mr. Cletus C. Glasener and Mr. Jeffrey J. Roncka (each, a “New Director” and collectively, the “New Directors”)
as members of the Board, each with a term expiring at the Company’s 2024 annual meeting of shareholders (the “2024 Annual
Meeting”). Mr. Domenik’s term as a director of the Company was set to expire at the 2024 Annual Meeting due to the Company’s
director service term limit, and Mr. Domenik agreed to retire early from the Board to facilitate the execution of the Cooperation
Agreement. The Company further agreed that it will nominate the New Directors for election at the 2024 Annual Meeting as directors for
a term expiring at the Company’s 2025 annual meeting of shareholders, and the Company will recommend, support and solicit proxies
for the election of the New Directors at the 2024 Annual Meeting in the same manner as it traditionally recommends, supports and solicits
proxies for the election of the Company’s other director nominees. In connection with the Cooperation Agreement, the Radoff Parties
have withdrawn their notice of shareholder nomination of candidates for election as directors at the 2024 Annual Meeting previously delivered
to the Company.
Pursuant to the Cooperation Agreement, the Company has also agreed
that the Board shall (i) amend and restate the charter of the Strategy and Alternatives Committee to include the oversight and completion
of a business review of the Company’s operational performance, cost structure, and portfolio composition, as well as to explore
all value creation levers available to the Company, (ii) amend the composition of the Strategy and Alternatives Committee such that
it shall consist of the New Directors, Mr. Bruce E. Grooms, Ms. Noel Heiks and Mr. Rex S. Jackson, and (iii) appoint
Mr. Roncka to serve as the Chair of the Strategy and Alternatives Committee at least until the end of the Standstill Period (as defined
below). In addition, the Company has agreed to appoint Mr. Glasener to serve as the Chairman of the Board at least until the end
of the Standstill Period. Further, each committee and subcommittee of the Board shall include at least one (1) New Director during
the Standstill Period and the number of authorized directors on the Board shall not exceed six (6) directors prior to the expiration
of the Standstill Period without the Radoff Parties’ prior written consent.
The Cooperation Agreement further provides that in the event that any
New Director is unable or unwilling to serve as a director, resigns as a director, is removed as a director, or for any other reason fails
to serve or is not serving as a director at any time the expiration of the Standstill Period, the Radoff Parties shall have the ability
to recommend to the Board a person to be a replacement director in accordance with the criteria set forth in the Cooperation Agreement;
provided that at such time the Radoff Parties beneficially own in the aggregate at least the lesser of (i) 5.0% of the Company’s
then-outstanding common stock and (ii) 3,691,000 shares of common stock (subject to adjustment for stock splits, reclassifications,
combinations and similar adjustments).
The Cooperation Agreement also includes certain customary voting commitments,
standstill, and mutual non-disparagement provisions that remain in place until the earlier of (x) the date that is thirty (30) calendar
days prior to the deadline for the submission of shareholder nominations for the Company’s 2025 Annual Meeting of Shareholders pursuant
to the Company’s amended and restated bylaws and (y) the date that is one hundred twenty (120) calendar days prior to the first
anniversary of the 2024 Annual Meeting (the “Standstill Period”).
The
foregoing description of the Cooperation Agreement does not purport to be complete and is qualified in its entirety by reference to the
Cooperation Agreement, a copy of which is attached to this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein
by reference.
Item 4.01 | Changes in Registrant’s
Certifying Accountant. |
(a) Dismissal of Independent Registered Public Accounting Firm.
On
January 6, 2024, the Company and its subsidiaries dismissed KPMG LLP (“KPMG”) as its independent registered public
accounting firm. The decision to dismiss the Company’s independent registered public accounting firm was approved by the Audit Committee
(the “Audit Committee”) of the Board.
The audit reports of KPMG on
the Company’s consolidated financial statements as of and for the fiscal years ended September 30, 2023 and 2022 did not contain
any adverse opinion or disclaimer of opinion, nor were they qualified or modified as to uncertainty, audit scope, or accounting principles,
except that KPMG’s report on the consolidated financial statements of the Company as of and for the fiscal years ended September
30, 2023 and 2022 contains a separate paragraph stating that “The Company has suffered recurring losses from operations that raise
substantial doubt about its ability to continue as a going concern. Management’s plans in regard to these matters are also described
in Note 2. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty”.
The audit reports of KPMG on the effectiveness of internal control over financial reporting as of September 30, 2023 and 2022 did not
contain any adverse opinion or disclaimer of opinion, nor were they qualified or modified as to uncertainty, audit scope, or accounting
principles, except that KPMG’s report dated December 27, 2023 indicates that the Company did not maintain effective internal control
over financial reporting as of September 30, 2023 because of the effect of a material weakness on the achievement of the objectives of
the control criteria and contains an explanatory paragraph that states a material weakness related to ineffective controls over new or
novel transactions as a result of ineffective communication has been identified and included in management’s assessment.
During the fiscal years ended September 30, 2023 and 2022 and the
subsequent interim period through January 6, 2024, there were (i) no disagreements with KPMG on any matter of accounting principles
or practices, financial statement disclosure, or auditing scope or procedure, which disagreements, if not resolved to the
satisfaction of KPMG, would have caused KPMG to make reference to the subject matter of the disagreements in connection with their
opinion on the Company’s financial statements for such fiscal years, and (ii) no reportable events as described in Item
304(a)(1)(v) of Regulation S-K, except that in its audit report on the effectiveness of the Company’s internal control over
financial reporting as of September 30, 2023, KPMG advised the Company of, and the Company also disclosed in Part II, Item 9A of the
Company’s Annual Report on Form 10-K for the fiscal year ended September 30, 2023, as filed with the U.S. Securities and
Exchange Commission (the “SEC”) on December 27, 2023 (the “Annual Report”), a material weakness related to
ineffective controls over new or novel transactions as a result of ineffective communication. The Company’s ineffective
internal control objectives resulted in a material error associated with the Company’s identification of certain insurance
premium and supplier financing agreements. The error was corrected in the consolidated financial statements as of and for the fiscal
year ended September 30, 2023, and as a result, this material weakness did not result in a material misstatement to the annual or
interim consolidated financial statements previously filed or included in the Annual Report. The Audit Committee discussed the
subject matter of this reportable event with KPMG, and the Company authorized KPMG to respond fully to inquiries of the successor
accountant (described below) concerning the subject matter of the reportable event.
The Company has provided KPMG with a copy of the foregoing
disclosures and requested that KPMG furnish the Company with a letter addressed to the SEC stating whether or not it agrees with the above statements. A copy of KPMG’s letter, dated January 11, 2024, is filed as
Exhibit 16.1 to this Current Report on Form 8-K.
(b) Engagement of New Independent Registered Public Accounting
Firm.
On
January 6, 2024, the Company approved the appointment of CohnReznick LLP (“CohnReznick”) as its new independent registered public
accounting firm for its fiscal year ending September 30, 2024 subject to the completion of CohnReznick's client acceptance procedures.
Item 5.02 | Departure of Directors
or Principal Officers; Election of Directors; Appointment of Principal Officers. |
(b)
On January 10, 2024, Mr. Stephen L. Domenik notified the Board of
his intention to resign as a director of the Company, including as a member of the Audit Committee and Compensation Committee and as Chairman
of the Board, Nominating and Corporate Governance Committee, and Strategy and Alternatives Committee, effective immediately. After ten
(10) years of service on the Board, Mr. Domenik’s resignation is consistent with the director service term limit set forth in the
Company’s Corporate Governance Guidelines and was not the result of any disagreement with the Company on any matter relating to
the Company's operations, policies or practices. Mr. Domenik resigned prior to the 2024 Annual Meeting in order to facilitate
the execution of the Cooperation Agreement described above in Item 1.01 of this Current Report on Form 8-K.
(d)
The information set forth in Item 1.01 of this Current Report on Form 8-K
is incorporated into this Item 5.02 by reference.
On January 10, 2024, pursuant to the Cooperation Agreement, the Board
increased the size of the Board from five (5) to six (6) members and appointed Mr. Glasener and Mr. Roncka to the Board. Each New Director
will serve for an initial term expiring at the 2024 Annual Meeting and until his successor is elected and qualified, or until his earlier
resignation or removal. Mr. Glasener has been appointed as Chairman of the Board and as a member of the Strategy and Alternatives
Committee and Mr. Roncka has been appointed as Chair of the Strategy and Alternatives Committee. It is contemplated that either Mr.
Glasener or Mr. Roncka will be added to each of the Board’s other committees shortly following their appointment to the Board.
Except
as disclosed above under Item 1.01, there are no arrangements or understandings between the New Directors and any other persons pursuant
to which they were selected as directors. Additionally, there are no family relationships between any director or executive officer of
the Company and the New Directors, and neither of the New Directors has a direct or indirect material interest in any transaction
required to be disclosed pursuant to Item 404(a) of Regulation S-K.
As non-employee directors on the Board, the New Directors will
receive the standard compensation received by non-employee directors, which compensation was last described in the Company’s
proxy statement on Schedule 14A filed with the SEC on January 20, 2023, as amended by Amendment No. 1 filed with the SEC on January 24, 2023, which is
incorporated herein by reference. It is contemplated that each of the New Directors will also enter into the Company’s
standard form of indemnification agreement between the Company and its directors and officers.
Item 5.03 | Amendments to Articles
of Incorporation or Bylaws; Change in Fiscal Year. |
On
January 10, 2024, the Board approved and adopted an amendment and restatement of the Company’s amended and restated
bylaws (such further amended and restated version, the “Amended and Restated Bylaws”), effective immediately. The only change
to the Amended and Restated Bylaws is to remove the authority of the Chairman of the Board and of the Chief Executive Officer to call
a special meeting of shareholders and to retain the authority of a majority of the Board to call a special meeting of shareholders.
The foregoing description of the Amended and Restated Bylaws does not
purport to be complete and is qualified in its entirety by reference to the Amended and Restated Bylaws, a copy of which is attached to
this Current Report on Form 8-K as Exhibit 3.1 and is incorporated herein by reference.
On
January 11, 2024, the Company issued a press release announcing the Company’s entry into the Cooperation Agreement
and the matters described in Item 1.01 and Item 5.02 hereof. A copy of this press release is furnished as Exhibit 99.1 to this Current
Report on Form 8-K and is incorporated herein by reference.
Item 9.01 | Financial Statements
and Exhibits. |
(d) Exhibits.
Exhibit
Number |
|
Exhibit Description |
3.1 |
|
EMCORE Amended and Restated Bylaws, as amended through January 10, 2024. |
10.1 |
|
Cooperation Agreement, dated as of January 10, 2024, by and among EMCORE Corporation and Bradley L. Radoff and certain of his affiliates. |
16.1 |
|
Letter from KPMG LLP to the U.S. Securities and Exchange Commission, dated January 11, 2024. |
99.1 |
|
Press Release, dated January 11, 2024, issued by EMCORE Corporation. |
104 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
EMCORE CORPORATION |
|
|
|
|
By: |
/s/
Tom Minichiello |
|
Name: |
Tom Minichiello |
January 11, 2024 |
Title: |
Chief Financial Officer |
Exhibit 3.1
BYLAWS
OF
EMCORE CORPORATION
As Amended Through January 10, 2024
Article I
OFFICES
1. Principal
Place of Business. The principal place of business of EMCORE Corporation (the “Corporation”) is 2015 Chestnut Street,
Alhambra, California 91803.
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, upon not less than ten nor more than sixty
days written notice of the time, place (or the means of remote communication, if any, by which shareholders and proxy holders may be
deemed to be present in person and vote at such meeting), and purpose of the meeting at the corporate offices, or at such other time
and place, if any, 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 a majority of the Board 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 (or the means of remote communication,
if any, by which shareholders and proxy holders may be deemed to be present in person and vote at such meeting) 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 filed 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 chief executive officer, or in the absence of the chief executive officer, president or such vice president as may be designated
by the chief executive officer, shall preside at all meetings of the shareholders. If all are absent, any other officer designated by
the Board 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. The person presiding at the meeting shall have the right
and authority to convene and (for any or no reason) to recess and/or adjourn the meeting and to prescribe such rules, regulations and
procedures and to do all such acts and things as are necessary or desirable for the proper conduct of the meeting, including, without
limitation, the establishment of an agenda or order of business for the meeting, establishment of procedures for the maintenance of order
and safety, limitations on the time allotted to questions or comments on the affairs of the Corporation, restrictions on entry to such
meeting after the time prescribed for the commencement thereof and the opening and closing of the voting polls.
6. Nature
of Business at Annual Meeting of Shareholders.
(a) No
business may be transacted at an annual meeting of shareholders, other than business that is (i) specified in the Corporation’s
notice of meeting (or any supplement thereto) given by or at the direction of the Board (or any duly authorized committee thereof), (ii) otherwise
properly before the annual meeting by or at the direction of the Board (or any duly authorized committee thereof) or (iii) otherwise
properly brought before the annual meeting by any shareholder of the Corporation who is a shareholder of record of the Corporation on
the date the notice provided for in this Section 6 is delivered to the secretary of the Corporation who is entitled to vote at such
annual meeting and who complies with the notice procedures set forth in this Section 6.
(b) Proposal
Notice.
(i) For
any business to be properly brought before an annual meeting of shareholders pursuant to Article II, Section 6(a)(iii) above,
the shareholder must have given timely notice thereof in writing, delivered or mailed by first class mail, postage prepaid, to the secretary
of the Corporation (a “Proposal Notice”) and any such proposed business must constitute a proper matter for shareholder action.
For purposes of these Bylaws, “Proposing Person” means (A) the shareholder providing
the Proposal Notice or Nominating Notice (as defined below), as applicable, (B) the beneficial owner of the Corporation’s
capital stock, if different, on whose behalf the Proposal Notice or Nominating Notice, as applicable, is given, (C) any affiliate
or associate of such shareholder or beneficial owner under the Exchange Act, (D) each other person who is the member of a “group”
(for purposes of these Bylaws, as such term is used in Rule 13d-5 under the Exchange Act) with any such shareholder or beneficial
owner or is otherwise Acting in Concert (as defined below) with any such shareholder or beneficial owner with respect to the proposal
or nominations, as applicable, and (E) any participant (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of
Schedule 14A, or any successor instructions) with such shareholder or beneficial owner in such solicitation of proxies in respect of
any such proposals or nomination, as applicable. To be timely, a Proposal Notice must be delivered to or mailed and received by
the secretary at the principal executive offices of the Corporation not later than the close of business on the 90th day, nor earlier
than the close of business on the 120th day, prior to the first anniversary of the preceding year’s annual meeting (provided, however,
that in the event that the date of the annual meeting is more than 30 days before or after such anniversary date, notice by the shareholder
must be so delivered not earlier than the close of business on the one 120th day prior to such annual meeting and not later than the
close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement
of the date of such meeting is first made by the Corporation). In no event shall the public announcement of an adjournment or postponement
of an annual meeting commence a new time period (or extend any time period) for the giving of a shareholder’s notice as described
above.
(ii) To
be in proper form, a Proposal Notice shall set forth (A) as to each matter such shareholder proposes to bring before the annual
meeting: (i) a brief description of the business desired to be brought before the annual meeting, (ii) the text of the proposal
or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal
to amend these Bylaws (these “Bylaws”), the language of the proposed amendment), (iii) the reasons for conducting such
business at the annual meeting and any material interest in such business of such shareholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (B) as to the shareholder giving the notice and the beneficial owner, if any, on whose behalf the
proposal is made (i) the name and address of such person, as they appear on the Corporation’s stock transfer books, (ii) the
class or series and number of shares of capital stock of the Corporation which are owned beneficially (within the meaning of Rule 13d-3
under the Exchange Act) and of record by such shareholder and such beneficial owner as of the date of the notice, (iii) a description
of any agreement, arrangement or understanding with respect to the proposal between or among such person, any of their respective affiliates
or associates, and any others acting in concert with any of the foregoing, (iv) a description of any agreement, arrangement or understanding
(including any derivative or short positions, profit interests, options, warrants, convertible securities, stock appreciation or similar
rights, hedging transactions, and borrowed or loaned shares) involving such Proposing Person that is in effect as of the date of the
shareholder’s notice, whether or not such instrument or right shall be subject to settlement in underlying shares of capital stock
of the Corporation, the effect or intent of which is to mitigate loss to, manage risk or benefit from share price changes for, or increase
or decrease the voting power of, such Proposing Person, with respect to securities of the Corporation, and the class or series and number
of shares of the Corporation’s capital stock that relate to such agreements, arrangements or understandings, (v) a description
of any proxy (other than a revocable proxy or consent given in response to a solicitation made pursuant to, and in accordance with, Section 14(a) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”) by way of a solicitation statement filed on Schedule
14A), agreement, arrangement, understanding or relationship in effect as of the date of the notice pursuant to which such Proposing Person
has or shares a right to vote or direct any third party to vote any shares of capital stock of the Corporation, (vi) a representation
that the Proposing Person is a holder of record of stock of the Corporation entitled to vote at such annual meeting and intends to appear
in person or by proxy at the meeting to propose such business, (vii) a representation whether the shareholder or the beneficial
owner, if any, intends or is part of a group which intends (A) to deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal and/or (B) otherwise
to solicit proxies or votes from shareholders in support of such proposal, (viii) a description in reasonable detail of any pending,
or to such Proposing Person’s knowledge, threatened legal proceeding in which any such Proposing Person is a party or participant
involving the Corporation or any officer, directors “affiliate” (for purposes of these Bylaws, as such term is used in Rule 12b-2
under the Exchange Act) or “associate” (for purposes of these Bylaws, as such term is used in Rule 12b-2 under the Exchange
Act) of the Corporation, (ix) a description in reasonable detail of any relationship (including any direct or indirect interest
in any agreement, arrangement or understanding, written or oral) between such Proposing Person and the Corporation or any director, officer,
affiliates or associate of the Corporation, (x) a description in reasonable detail of any performance-related fees (other than an
asset-based fee) to which such Proposing Person may be entitled as a result of any increase or decrease in the value of shares of the
Corporation or any of its derivative securities, (xi) a description in reasonable detail of any direct or indirect interest of such
Proposing Person in any contract or agreement with the Corporation or any affiliate or associate of the Corporation (naming such affiliate
or associate), or with any principal competitor of the Corporation or any affiliate or associate of such competitor (naming such competitor,
affiliate or associate, as applicable), (xii) a description in reasonable detail of any direct or indirect interest of such Proposing
Person that is or may reasonably be considered to be competitive or in conflict with the Corporation, or any affiliate or associate of
the Corporation (naming such affiliate or associate), (xiii) a description of, including the class, series and number of, shares
of (including any derivative position) any competitor of the Corporation directly or indirectly beneficially owned and/or held of record
by such Proposing Person (including any shares of any class or series of any such competitor of the Corporation as to which such Proposing
Person has a right to acquire beneficial ownership at any time in the future, whether such right is exercisable immediately, only after
the passage of time in the future, whether such right is exercisable immediately, only after the passage of time or only upon the satisfaction
of certain conditions precedent), (xiv) the investment strategy or objective, if any, of such Proposing Person who is not an individual
and a copy of the prospectus, offering memorandum or similar document, if any, provided to investors or potential investors in each such
Proposing Person, and (xv) any other information relating to such shareholder and beneficial owner, if any, required to be disclosed
in a proxy statement or other filings required to be made in connection with solicitations of proxies for the proposal pursuant to and
in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder. The foregoing
notice requirements of this Article II, Section 6(b) shall be deemed satisfied by a Proposing Person with respect to business
if the Proposing Person has notified the Corporation of the intention to present a proposal at an annual meeting in compliance with applicable
rules and regulations promulgated under the Exchange Act and such Proposing Person’s proposal has been included in a proxy
statement that has been prepared by the Corporation to solicit proxies for such annual meeting. Notwithstanding the foregoing provisions
of this Article II, Section 6(b), unless otherwise required by law, if the shareholder (or a qualified representative of the
shareholder) does not appear at the annual meeting of shareholders to present the proposed business, such proposed business shall not
be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 6,
to be considered a “qualified representative of the shareholder,” a person must be a duly authorized officer, manager or
partner of such shareholder and must be authorized by a written instrument executed by such shareholder to act for such shareholder as
proxy at the meeting of shareholders, in which case such person must produce such written instrument or a reliable reproduction of the
written instrument at the meeting of shareholders.
(c) A
shareholder providing notice of any business proposed to be conducted at an annual meeting shall further update and supplement such notice,
as necessary, from time to time, so that the information provided or required to be provided in such notice pursuant to Article II,
Section 6(b) shall be true, correct and complete in all respects, and such update and supplement shall be received by the Secretary
of the Corporation not later than the earlier of (A) five (5) business days following the occurrence of any event, development
or occurrence which would cause the information provided to be not true, correct and complete in all respects, and (B) five (5) business
days prior to the meeting at which such proposals contained therein are to be considered, and, in
the event of any adjournment or postponement thereof, five (5) business days prior to such adjourned or postponed meeting. If
the information submitted pursuant to Article II, Section 6(b) by any shareholder proposing business for consideration
at an annual meeting shall not be true, correct and complete in all respects, such information may be deemed not to have been provided
in accordance with Article II, Section 6(b). For the avoidance of doubt, the updates required pursuant to this Article II,
Section 6(c) do not cause a notice that was not in compliance with Article II, Section 6(b) when first delivered
to the Corporation to thereafter be in proper form in accordance with this Article II, Section 6. Upon written request by the
Secretary of the Corporation, the Board or any duly authorized committee thereof, any shareholder proposing business for consideration
at an annual meeting shall provide, within five (5) business days of delivery of such request (or such other period as may be specified
in such request), written verification, satisfactory in the reasonable discretion of the Board, any duly authorized committee thereof
or any duly authorized officer of the Corporation, to demonstrate the accuracy of any information submitted by the shareholder pursuant
to Article II, Section 6(b). If a shareholder fails to provide such written verification within such period, the information
as to which written verification was requested may be deemed not to have been provided in accordance with Article II, Section 6(b).
(d) Except
as provided by Rule 14a-8 (and the interpretations thereof) of the Exchange Act, and notwithstanding anything in these Bylaws to
the contrary (other than the provisions of Section 6(h) below relating to any proposal properly made in accordance with Rule 14a-8
under the Exchange Act and included in the Corporation’s proxy statement and other than nominations for election to the Board which
must comply with the provisions of Article IV, Section 2 hereof) this Article II, Section 6 shall be the exclusive
means for any shareholder of the Corporation to propose business to be brought before an annual meeting of shareholders. If the chairman
of such meeting shall determine, based on the facts and circumstances and in consultation with counsel (who may be the Corporation’s
internal counsel), that such business was not properly brought before the meeting by a shareholder in accordance with this Article II,
Section 6, then the chairman of the meeting shall so declare to the meeting and not permit such business to be transacted at such
meeting. In addition, business proposed to be brought by a shareholder may not be brought before an annual meeting if such shareholder
takes action contrary to the representations made in the shareholder notice applicable to such business or if the shareholder notice
applicable to such business contains an untrue statement of a fact or omits to state a fact necessary to make the statements therein
not misleading.
(e) For
purposes of these Bylaws, a person shall be deemed to be “Acting in Concert” with another person if such person knowingly
acts (whether or not pursuant to an express agreement, arrangement or understanding) in concert with, or towards a common goal relating
to the management, governance or control of the Corporation in parallel with, such other person where (A) each person is conscious
of the other person’s conduct or intent and this awareness is an element in their decision-making processes and (B) at least
one additional factor suggests that such persons intend to act in concert or in parallel, which such additional factors may include,
without limitation, exchanging information (whether publicly or privately), attending meetings, conducting discussions, or making or
soliciting invitations to act in concert or in parallel; provided, that a person shall not be deemed to be Acting in Concert with any
other person solely as a result of the solicitation or receipt of revocable proxies from such other person in response to a solicitation
made pursuant to, and in accordance with, Section 14(a) of the Exchange Act by way of a proxy statement filed on Schedule 14A.
A person Acting in Concert with another person shall be deemed to be Acting in Concert with any third party who is also Acting in Concert
with such other person.
(f) Nothing
in this Section 6 shall be deemed to affect the rights of shareholders to request inclusion of proposals in the Corporation’s
proxy statement pursuant to, and in compliance with, Rule 14a-8 of the Exchange Act.
(g) Any
Proposing Person or any person or entity acting on behalf of a Proposing Person directly or indirectly soliciting proxies from other
shareholders must use a proxy card color other than white, which shall be reserved for the exclusive use by the Corporation’s Board
of Directors.
(h) The
person presiding at the meeting may, if the facts warrant, determine and declare to the meeting that business was not properly brought
before the annual meeting in accordance with the foregoing procedures, and if such person should so determine, such person shall so declare
to the meeting and such business shall not be transacted.
Article III
VOTING AND ELECTIONS
1. Voting.
Except as otherwise provided in the certificate of incorporation of the Corporation (the “Certificate of Incorporation”),
each holder of shares with voting rights shall be entitled to one vote for each such share registered in his or her name on the books
of the Corporation on such date as may be fixed pursuant to Section 3 as the record date. 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, the Certificate of Incorporation
or these Bylaws.
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 law, shall be the first date on which a signed written consent setting forth the action taken or proposed to
be taken is delivered to the Corporation by delivery to (i) its registered office in New Jersey, (ii) its principal place of
business, or (iii) 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 Section 3, such determination
shall apply to any adjournment thereof, unless the Board fixes a new record date under this Section 3 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 or to express consent without a 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 the 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) Unless
otherwise required by law, if any shareholder (i) provides notice pursuant to Rule 14a-19(b) promulgated under the Exchange
Act and (ii) subsequently fails to comply with any requirements of Rule 14a-19 promulgated under the Exchange Act or any other
rules or regulations thereunder, then the Corporation shall disregard any proxies or votes solicited for such nominees and such
nomination shall be disregarded.
(e) 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.
Article IV
BOARD OF DIRECTORS
1. Election;
Term of Office; Removal; Vacancies; Independence.
(a) Election.
The number of Directors constituting the entire Board shall be not less than five nor more than nine, 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. 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;
Term of Office; Vacancies. Until the 2019 Annual Meeting of Shareholders, 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. Commencing with the 2019 Annual Meeting
of Shareholders, the Directors elected at an annual meeting of shareholders to succeed those whose terms then expire shall hold office
until the next succeeding annual meeting of shareholders and until such Director’s successor shall have been elected and qualified.
Starting as of June 1, 2007, Independent Directors (as hereinafter defined) may serve on the Board for no more than ten consecutive
years. After serving for ten consecutive years during any period after June 1, 2007, an Independent Director must step down from
the Board for at least one year before seeking re-election to the Board. 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 annual meeting of shareholders
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 Directors,
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 Bylaws, 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 at least a majority of the outstanding shares of 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) Independence
of Directors. A majority of the members of the Board will be independent. The Corporation defines an “Independent Director”
in accordance with the NASDAQ listing requirements and these Bylaws. For purposes of these Bylaws, an “Independent Director”
will mean a Director who:
(i) is
not, and in the past three years has not been, employed by the Corporation or any of its subsidiaries or affiliates;
(ii) does
not receive, and in the past three years has not received, any remuneration an advisor, consultant or legal counsel to the Corporation
or any of its subsidiaries, affiliates, executive officers or other Directors;
(iii) does
not have, and in the past three years has not had, any contract or agreement with the Corporation or any of its subsidiaries or affiliates
pursuant to which the Director performed or agreed to perform any personal services for the Corporation;
(iv) does
not have, and in the past three years has not had, any business relationship or engaged in any transaction with the Corporation or any
of its subsidiaries or affiliates other than his or her service as a Director;
(v) is
not, and in the past three years has not been, affiliated with, or employed by any present or former independent auditor of the Corporation
or any of its subsidiaries or affiliates;
(vi) is
not, and in the past three years has not been, a director or executive officer of any company for which any executive officer of the
Corporation serves as a director; and
(vii) is
not a Family Member of a person who is not independent pursuant to subsections (i)-(vi) above. For purposes of this Subsection 1(d),
“Family Member” means a person’s spouse, parents, children and siblings, whether by blood, marriage, adoption, or anyone
residing in such person’s home.
2. Nominations.
(a) Subject
to the rights of any holders of Preferred Stock, only persons who are nominated in accordance with the procedures in this Section 2
shall be eligible for election as Directors of the Corporation. Nominations of persons for election to the Board pursuant to this Article IV,
Section 2 may be made at any annual meeting of shareholders, or at any special meeting of shareholders called for the purpose of
electing Directors. Nominations for the election of Directors may be made (i) by or at the direction of the Board (or any duly authorized
committee thereof), or (ii) by any shareholder of the Corporation (or group of shareholders in the case of any nomination pursuant
to Article IV, Section 2(b)) who is a shareholder of record of the Corporation on the date the notice provided for in this
Article IV, Section 2 is delivered to the Corporation who is entitled to vote at such meeting and who complies with the notice
procedures set forth in this Article IV, Section 2.
(b) Shareholder
Nominations.
(i) Nominations
for election to the Board of Directors which are not made by the Board (a “Nominating Notice”) shall be made by timely notice
thereof in writing, delivered or mailed by first class mail, postage prepaid, to the secretary of the Corporation. To be timely, a shareholder’s
notice must be delivered to or mailed and received by the secretary at the principal executive offices of the Corporation (i) in
the case of an annual meeting of shareholders, not later than the close of business on the 90th day, nor earlier than the close of business
on the 120th day, prior to the first anniversary of the preceding year’s annual meeting (provided, however, that in the
event that the date of the annual meeting is more than 30 days before or after such anniversary date, notice by the shareholder must be
so delivered not earlier than the close of business on the one 120th day prior to such annual meeting and not later than the close of
business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement of the
date of such meeting is first made by the Corporation); and (ii) in the case of a special meeting of shareholders called for the
purpose of electing Directors, not earlier than the close of business on the 120th day prior to such special meeting and not later than
the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made by the Corporation and of the nominees proposed by the Board to be elected as Directors
at such meeting. In no event shall the public announcement of an adjournment or postponement of a meeting of shareholders commence a new
time period (or extend any time period) for the giving of a shareholder’s notice as described above.
(ii) If
either the Proposing Person or an individual nominated for election as a director is determined to have any direct or indirect interest
that is or may reasonably be considered to be competitive or in conflict with the Corporation, or any affiliate or associate of the Corporation
(a “Conflict”), such determination made in the reasonable discretion of at least a majority of the then serving directors
on the Board, to the fullest extent permitted by law, no person nominated by any such Proposing Person in the case where such Proposing
Person is so determined to have a Conflict, or any such individual nominated for election as a director in the case where only such nominee
is so determined to have a Conflict, shall be qualified to serve as a director or be eligible to be nominated to serve as a director.
(iii) Required
Form of Nominating Notice. To be in proper form, the Nominating Notice to the Secretary of the Corporation shall set forth in
writing:
(1) Information
Regarding the Proposing Person. As to each Proposing Person, (A) the name and address of such person, as they appear on the Corporation’s
stock transfer books, (B) the class or series and number of shares of capital stock of the Corporation which are owned beneficially
(within the meaning of Rule 13d-3 under the Exchange Act) and of record by such shareholder and such beneficial owner as of the date
of the notice, (C) a description of any agreement, arrangement or understanding with respect to the proposal between or among such
Proposing Person, any of their respective affiliates or associates, and any others acting in concert with any of the foregoing, (D) a
description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, warrants,
convertible securities, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares) involving such Proposing
Person that is in effect as of the date of the Nominating Notice, whether or not such instrument or right shall be subject to settlement
in underlying shares of capital stock of the Corporation, the effect or intent of which is to mitigate loss to, manage risk or benefit
from share price changes for, or increase or decrease the voting power of, such Proposing Person, with respect to securities of the Corporation,
and the class or series and number of shares of the Corporation’s capital stock that relate to such agreements, arrangements or
understandings, (E) a description of any proxy (other than a revocable proxy or consent given in response to a solicitation made
pursuant to, and in accordance with, Section 14(a) of the Exchange Act by way of a solicitation statement filed on Schedule
14A), agreement, arrangement, understanding or relationship in effect as of the date of the Nominating Notice pursuant to which such Proposing
Person has or shares a right to vote or direct any third party to vote any shares of capital stock of the Corporation, (F) a representation
that the Proposing Person is a holder of record of stock of the Corporation entitled to vote at such annual meeting and intends to appear
in person or by proxy at the meeting to propose such business, (G) a representation and an undertaking that the shareholder or the
beneficial owner, if any, will deliver to beneficial owners of shares representing at least 67% of the voting power of the Corporation’s
stock entitled to vote generally in the election of directors either (i) at least 20 calendar days before the annual meeting of shareholders,
a copy of its definitive proxy statement for the solicitation of proxies for its director candidates or (ii) at least 40 calendar
days before the annual meeting of shareholders a Notice of Internet Availability of Proxy Materials that would satisfy the requirements
of Rule 14a-16(d) of the Exchange Act, (H) a description in reasonable detail of any pending, or to such Proposing Person’s
knowledge, threatened legal proceeding in which any such Proposing Person is a party or participant involving the Corporation or any officer,
directors “affiliate” (for purposes of these Bylaws, as such term is used in Rule 12b-2 under the Exchange Act) or “associate”
(for purposes of these Bylaws, as such term is used in Rule 12b-2 under the Exchange Act) of the Corporation, (I) a description
in reasonable detail of any relationship (including any direct or indirect interest in any agreement, arrangement or understanding, written
or oral) between such Proposing Person and the Corporation or any director, officer, affiliates or associate of the Corporation, (J) a
description in reasonable detail of any performance-related fees (other than an asset-based fee) to which such Proposing Person may be
entitled as a result of any increase or decrease in the value of shares of the Corporation or any of its derivative securities, (K) a
description in reasonable detail of any direct or indirect interest of such Proposing Person in any contract or agreement with the Corporation
or any affiliate or associate of the Corporation (naming such affiliate or associate), or with any principal competitor of the Corporation
or any affiliate or associate of such competitor (naming such competitor, affiliate or associate, as applicable), (L) a description
in reasonable detail of any direct or indirect interest of such Proposing Person that is or may reasonably be considered to be competitive
or in conflict with the Corporation, or any affiliate or associate of the Corporation (naming such affiliate or associate), (M) a
description of, including the class, series and number of, shares of (including any derivative position) any competitor of the Corporation
directly or indirectly beneficially owned and/or held of record by such Proposing Person (including any shares of any class or series
of any such competitor of the Corporation as to which such Proposing Person has a right to acquire beneficial ownership at any time in
the future, whether such right is exercisable immediately, only after the passage of time in the future, whether such right is exercisable
immediately, only after the passage of time or only upon the satisfaction of certain conditions precedent), (N) the investment strategy
or objective, if any, of such Proposing Person who is not an individual and a copy of the prospectus, offering memorandum or similar document,
if any, provided to investors or potential investors in each such Proposing Person, (O) any proposals or nominations submitted by
or on behalf of any Proposing Person seeking to nominate directors at any other corporation with a class of equity securities registered
pursuant to Section 12 of the Exchange Act, whether or not trading in such securities has been suspended, within the past 36 months
from the date of the Nomination Notice (whether or not such proposal or nomination was publicly disclosed), and (P) any other information
relating to such shareholder and beneficial owner, if any, required to be disclosed in a proxy statement or other filings required to
be made in connection with solicitations of proxies for the nomination pursuant to and in accordance with Section 14(a) of the
Exchange Act and the rules and regulations promulgated thereunder.
(2) Information
Regarding the Nominee. As to each person whom the Proposing Person proposes to nominate for
election as a director in writing: (A) all information with respect to such proposed nominee that would be required to be set forth
in a Nominating Notice pursuant to Article IV, Section 2(b)(iii)(1) if such proposed nominee were a Proposing Person; (B) all
information relating to such proposed nominee that would be required to be disclosed in a proxy statement or other filing required to
be made with the SEC by any Proposing Person pursuant to Section 14(a) under the Exchange Act to be made in connection with
a contested solicitation of proxies by a Proposing Person for an election of directors in a contested election; (C) such proposed
nominee’s written representation and agreement in the form required by the Corporation (which form the Proposing Person shall request
in writing from the Secretary and which the Secretary shall provide to such Proposing Person within ten (10) days after receiving
such request) that: (i) such proposed nominee is not and will not become party to any agreement, arrangement or understanding with,
and has not given any commitment or assurance to, any person or entity as to how such proposed nominee, if elected as a director of the
corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation
or any Voting Commitment that could limit or interfere with such proposed nominee’s ability to comply, if elected as a director
of the Corporation, with such proposed nominee’s fiduciary duties under applicable law; (ii) such proposed nominee is not and
will not become a party to any agreement, arrangement or understanding with any person or entity other than the corporation with respect
to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director or nominee
that has not been disclosed to the Corporation; (iii) such proposed nominee will, if elected as a director, comply with applicable
law, the rules of any securities exchanges upon which the Corporation’s securities are listed, all applicable publicly disclosed
corporate governance, ethics, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation,
and any other of the Corporation’s policies and guidelines applicable to directors (which will be provided to such proposed nominee
within five (5) business days after the Secretary receives any written request therefor from such proposed nominee), and applicable
fiduciary duties under state law; (iv) such proposed nominee consents to serving as a director, if elected as a director of the Corporation;
and (v) such proposed nominee intends to serve as a director for the full term for which such proposed nominee is standing for election;
(D) such proposed nominee’s executed written consent to be named in the proxy statement
and form of proxy of the Proposing Person and the proxy statement and form of proxy of the Corporation as a nominee and to serve as a
director of the Corporation if elected; (E) to the extent that such proposed nominee has entered into (i) any agreement, arrangement
or understanding (whether written or oral) with, or has given any commitment or assurance to, any person or entity as to the positions
that such proposed nominee, if elected as a director of the Corporation, would take in support of or in opposition to any issue or question
that may be presented to him or her for consideration in his or her capacity as a director of the Corporation, (ii) any agreement,
arrangement or understanding (whether written or oral) with, or has given any commitment or assurance to, to any person or entity as to
how such proposed nominee, if elected as a director of the Corporation, would act or vote with respect to any issue or question presented
to him or her for consideration in his or her capacity as a director of the Corporation, (iii) any agreement, arrangement or understanding
(whether written or oral) with any person or entity that could be reasonably interpreted as having been both (a) entered into in
contemplation of the proposed nominee being elected as a director of the Corporation, and (b) intended to limit or interfere with
the proposed nominee’s ability to comply, if elected as a director of the Corporation, with his or her fiduciary duties, as a director
of the Corporation, to the Corporation or its shareholders, or (iv) any agreement, arrangement or understanding (whether written
or oral) with any person or entity that could be reasonably interpreted as having been or being intended to require such proposed nominee
to consider the interests of a person or entity (other than the Corporation and its shareholders) in complying with his or her fiduciary
duties, as a director of the Corporation, to the Corporation or its shareholders, a description in reasonable detail of each such agreement,
arrangement or understanding (whether written or oral) or commitment or assurance; (F) a
description in reasonable detail of any and all agreements, arrangements and/or understandings, written or oral, in effect currently or
at any time within the three years preceding the date of the nomination, between such proposed nominee and any person or entity (naming
each such person or entity) with respect to any direct or indirect compensation, reimbursement, indemnification or other benefit (whether
monetary or non-monetary) in connection with or related to such proposed nominee’s candidacy for election to the Board and/or service
on the Board if elected as a member of the Board; (G) a description in reasonable detail of any and all other agreements, arrangements
and/or understandings, written or oral, in effect currently or at any time within the three years preceding the date of the nomination,
between such proposed nominee and any person or entity (naming such person or entity) in connection with such proposed nominee’s
service or action as a proposed nominee and, if elected, as a member of the Board; (H) all information that would be required to
be disclosed pursuant to Items 403 and 404 under Regulation S-K if the shareholder giving the notice or any other Proposing Person were
the “registrant” for purposes of such rule and the proposed nominee were a director or executive officer of such registrant;
(I) a fully completed Director’s Questionnaire on the form supplied by the Corporation within 10 calendar days following written
request from the shareholder, executed by each nominee; and (J) such other information as the Corporation may require, including
by completion of supplemental questionnaires, to determine, among other things, the eligibility of such proposed nominee to serve as a
director of the Corporation or whether such nominee would be independent under applicable Securities and Exchange Commission and stock
exchange rules and the Corporation’s publicly disclosed corporate governance guidelines.
(iv) Updating
of Nominating Notice.
(1) A
shareholder providing a Nominating Notice with respect to any nominations proposed to be made at any shareholders’ meeting shall
further update and supplement such notice, as necessary, from time to time, so that the information provided or required to be provided
in such notice pursuant to this Article IV, Section 2 shall be true, correct and complete in all respects, and such update and
supplement shall be received by the Secretary of the Corporation not later than the earlier of (A) five (5) business days following
the occurrence of any event, development or occurrence which would cause the information provided to be not true, correct and complete
in all respects, and (B) five (5) business days prior to the meeting at which such proposals contained therein are to be considered,
and, in the event of any adjournment or postponement thereof, five (5) business days prior to such adjourned or postponed meeting.
(2) If
the information submitted pursuant to this Article IV, Section 2 by any shareholder of a proposed nomination to be made at a
shareholders’ meeting shall not be true, correct and complete in all respects, such information may be deemed not to have been provided
in accordance with this Article IV, Section 2. For the avoidance of doubt, the updates required pursuant to this Article IV,
Section 2(b)(iv) do not cause a notice that was not in compliance with this Article IV, Section 2 when delivered to
the Corporation to thereafter be in proper form in accordance with this Article IV, Section 2.
(3) Upon
written request by the Secretary of the Corporation, the Board or any duly authorized committee thereof, any shareholder proposing nominees
for consideration at a shareholders’ meeting shall provide, within five (5) business days of delivery of such request (or such
other period as may be specified in such request), written verification, satisfactory in the reasonable discretion of the Board, any duly
authorized committee thereof or any duly authorized officer of the Corporation, to demonstrate the accuracy of any information submitted
by the shareholder pursuant to this Article IV, Section 2. If a shareholder fails to provide such written verification within
such period, the information as to which written verification was requested may be deemed not to have been provided in accordance with
this Article IV, Section 2.
(4) Upon
request by the Corporation, if a shareholder provides notice pursuant to Rule 14a-19(b) promulgated under the Exchange Act,
such shareholder shall deliver to the Corporation, no later than ten (10) business days prior to the applicable meeting of shareholders,
reasonable evidence that it has met the requirements of Rule 14a-19(a)(3) promulgated under the Exchange Act.
(c) Exclusive
Means. Article IV, Section 2 of these Bylaws shall be the exclusive means of any shareholder of the Corporation’s
capital stock to propose a nominee for the Board before any shareholders’ meeting. No candidate shall be eligible for nomination
by a shareholder as a director of the Corporation unless such candidate for nomination and the Proposing Person seeking to place such
candidate’s name in nomination for election at a shareholders’ meeting have complied with this Article IV, Section 2
in all respects. Except for a nomination made in accordance with this Article IV, Section 2
of these Bylaws and Rule 14a-19 promulgated under the Exchange Act, this Article IV, Section 2 of these Bylaws is the sole
and exclusive manner for shareholders to include nominees for director election in the Corporation’s proxy materials. In the event
of a failure to meet the requirements of this Article IV, Section 2, (i) the Corporation may omit or, to the extent feasible,
remove the information concerning the nomination from its proxy materials and/or otherwise communicate to its shareholders that the nominee
is not eligible for election at the annual meeting of shareholders, (ii) the Corporation shall not be required to include in its
proxy materials any successor or replacement nominee proposed by the party and (iii) the presiding person of the meeting shall declare
such nomination to be invalid and such nomination shall be disregarded notwithstanding that proxies in respect of such vote may have been
received by the Corporation. If the chairman of such shareholders’ meeting shall determine,
based on the facts and circumstances and in consultation with counsel (who may be the Corporation’s internal counsel), that such
nominee was not properly nominated by a shareholder in accordance with this Article IV, Section 2, then the chairman of the
shareholders’ meeting shall so declare such determination to the shareholders’ meeting, the defective nomination shall be
disregarded and any ballots cast for the candidate in question (but in the case of any form of ballot listing other qualified nominees,
only the ballots cast for the nominee in question) shall be void and of no force or effect. In addition, nominations made by a shareholder
may not be brought before a shareholders’ meeting if such shareholder takes action contrary to the representations made in the Nominating
Notice applicable to such nomination or if the Nominating Notice applicable to such nomination contains an untrue statement of a fact
or omits to state a fact necessary to make the statements therein not misleading.
(d) Accuracy
of Information. A shareholder submitting the Nomination Notice, by its delivery to the Corporation, represents and warrants that all
information contained therein is true, accurate and complete in all respects, contains no false and misleading statements and such shareholder
acknowledges that it intends for the Corporation and the Board to rely on such information as being true, accurate and complete in all
respects, without regard to what other information may be publicly available but not contained in the Nominating Notice.
(e) Interview/Background
Diligence. The proposed nominee shall, as required by the Board or a committee thereof, sit for an interview with one or more directors
or their representatives, which interview may, in the discretion of the Board or any such committee thereof be conducted by means of
remote communication, and such proposed nominee shall make himself or herself available for any such interview within ten (10) days
following the date of any request therefor from the Board or any committee thereof. Refusal by a proposed nominee to participate in such
interview will render the nomination ineffective for failure to satisfy the requirements of these Bylaws. The proposed nominee shall,
as required by the Board or any committee thereof, consent to and cooperate with a background screening conducted by a background screening
company selected by the Board or any such committee thereof with experience in conducting background screenings of public company directors.
Refusal by a proposed nominee to cooperate with such a background screening will render the nomination ineffective for failure to satisfy
the requirements of these Bylaws.
(f) Exchange
Act and State Law. In addition to the provisions of this Article IV, Section 2, a shareholder shall also comply with all
applicable requirements of the Exchange Act and applicable state law with respect to any nominations of directors for election at any
shareholders’ meeting and any solicitations of proxies in connection therewith.
(g) Corporation
Proxy Materials/White Proxy Card. Except as otherwise required by law, nothing in Article IV, Section 2 shall obligate the
Corporation or the Board to include in any proxy statement or other shareholder communication distributed on behalf of the Corporation
or the Board information with respect to any nominee for director submitted by a shareholder. Any
Proposing Person or any person or entity acting on behalf of a Proposing Person directly or indirectly soliciting proxies from other shareholders
must use a proxy card color other than white, which shall be reserved for the exclusive use by the Board.
(h) Appearance
at Meeting. Notwithstanding anything to the contrary in Article IV, Section 2, unless otherwise permitted or required by
law, if the shareholder (or a qualified representative of the shareholder) does not appear at the meeting to present a nomination, such
nomination shall not be brought before the meeting, notwithstanding that proxies in respect of such nominee may have been received by
the Corporation. For purposes of this Section 2(h), to be considered a “qualified representative of the shareholder,”
a person must be a duly authorized officer, manager or partner of such shareholder and must be authorized by a written instrument executed
by such shareholder to act for such shareholder as proxy at the meeting of shareholders, in which case such person must produce such written
instrument or a reliable reproduction of the written instrument at the meeting of shareholders.
(i) For
a nominee for election to the Board proposed by a shareholder or group of shareholders holding 20% or more of the outstanding capital
stock of the Corporation, the Corporation shall include such nominee in the Corporation’s proxy solicitation materials, provided
that such shareholder or group of shareholders has complied with the notice and other procedures set forth in this Section 2 For
a nominee for election to the Board proposed by a shareholder or group of shareholders holding less than 20% of the outstanding shares
of capital stock of the Corporation, the Corporation shall not be required to include such nominee in the Corporation’s proxy solicitation
materials regardless of whether such shareholder or group of shareholders has complied with the notice and other procedures set forth
in this Section 2. For purposes of this Article IV, Section 2(i), “group” shall mean any group of persons and/or
entities formed for the purpose of acquiring, holding, voting or disposing of voting securities that would be required under Section 13(d) of
the Exchange Act and the rules and regulations thereunder to file a statement on Schedule 13D with the Securities and Exchange Commission
as a “person” within the meaning of the Section 13(d)(3) of the Exchange Act.
(j) 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 procedures, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be
disregarded.
3. 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 4 below,
shall be provided to Directors not present at the time of the adoption of the resolution.
4. Special
Meetings. A special meeting of the Board may be called at any time by the Chairman of the Board, 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.
5. 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.
6. Quorum
and Manner of Acting. Except as otherwise provided in these Bylaws, the Certificate of Incorporation or by law, one-half of the entire
Board shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board. If a quorum shall not be present at any meeting of the Board, the Directors present thereat
may adjourn the meeting from time to time, without notice other than announcement at the meeting of the time and place of the adjourned
meeting (provided the period of adjournment does not exceed 10 days in any one adjournment), until a quorum shall be present.
7. Meetings
by Means of Conference Telephone. Except as otherwise provided in these Bylaws, the Certificate of Incorporation or by law, members
of the Board may participate in a meeting of the Board by means of a conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 7
shall constitute presence in person at such meeting.
8. 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 consist of one or more directors of the Corporation. 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.
Unless otherwise provided
by the Board, meetings and actions of committees shall be governed by, and held and taken in accordance with, the provisions of this Article IV
applicable to meetings and actions of the Board.
9. 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.
10. Chairman
of the Board. The Board shall elect a Chairman of the Board from among the Directors. The Board shall designate the Chairman as either
a non-executive Chairman of the Board, or an executive Chairman of the Board. The Chairman of the Board shall preside at meetings of
the Board and in general shall perform all duties incident to the office of Chairman of the Board and such other duties as from time
to time may be assigned to him by the Board of Directors.
Article V
WAIVERS OF NOTICE
Any notice required by these
Bylaws, 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 a 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 chief executive officer shall 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 Chief Executive Officer. Subject only to the authority of the Board, and except as otherwise provided in these Bylaws,
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 instruments not in the regular course of business which are authorized, either generally or specifically,
by the Board. The chief executive officer shall preside at shareholder meetings. Except as otherwise provided in these Bylaws, the chief
executive officer shall have the general powers and duties of management usually vested in the office of chief executive officer of a
corporation.
3. Duties
and Authority of President. Subject only to the authority of the chief executive officer and the Board, the president shall have responsibility
for the business and affairs of 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 instruments not in the regular course of business which are
authorized, either generally or specifically, by the Board. Except as otherwise provided in these Bylaws, the president 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 Section 2 of
this Article VI.
4. 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.
5. 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 chief executive officer, president or the Board.
6. Duties
and Authority of Secretary. The secretary shall cause notices of all meetings to be served as prescribed in these Bylaws 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 chief executive officer, president or the Board.
7. Vacancies.
Any vacancy in any office may be filled by the Board.
8. 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, the chief executive officer or 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. Each share of the capital stock of the Corporation shall be represented by certificates or,
in accordance with the applicable provisions of the New Jersey Business Corporation Act, shall be uncertificated shares. Certificates
of any class of capital stock and certificates representing any other securities of the Corporation shall be signed by the Chairman of
the Board, chief executive officer, president, or any vice president and, at the Corporation’s option, may be 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 or uncertificated shares 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 or by that person’s authorized agent upon (a) 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 or (b) in the
case of uncertificated shares, upon receipt of proper transfer instructions from the holder thereof or that person’s authorized
agent or upon presentation of proper evidence of assignment and authorization to transfer, 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
BYLAWS; FISCAL YEAR; SEAL;
CHECKS; CONTRACTS; RECORDS
1. Force
and Effect of Bylaws. These Bylaws 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 Bylaws 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 Bylaws. These Bylaws may be altered, amended or repealed by the shareholders or the Board in accordance with the terms of the Certificate
of Incorporation, these Bylaws 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 Subsection 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 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 (as hereinafter defined) 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 of the Corporation, the Bylaws, the bylaws 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 shareholders, 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 Exchange Act, 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 shareholders entitled to vote thereon at a meeting of shareholders for which proxies are solicited in accordance with then applicable
requirements of the Securities and Exchange Commission, except that (i) the Board, without shareholder 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.
Article X
FORUM FOR ADJUDICATION OF DISPUTES
Unless the Corporation consents
in writing to the selection of an alternative forum, the federal district courts of the United States shall be the exclusive forum for
the resolution of any complaint asserting a cause of action under the Securities Act of 1933. Any person or entity purchasing or otherwise
acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions
of this Article X.
Exhibit 10.1
COOPERATION AGREEMENT
This Cooperation Agreement
(this “Agreement”) is made and entered into as of January 10, 2024 by and among EMCORE Corporation (the “Company”)
and the entities and natural persons set forth in the signature pages hereto (collectively, the “Radoff Parties”)
(each of the Company and the Radoff Parties, a “Party” to this Agreement, and collectively, the “Parties”).
RECITALS
WHEREAS, the Company and the
Radoff Parties have engaged in various discussions and communications concerning the Company’s business, financial performance and
strategic plans;
WHEREAS, as of the date hereof,
the Radoff Parties have a beneficial ownership (as determined under Rule 13d-3 promulgated under the Securities Exchange Act of 1934,
as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) interest in the
common stock, no par value per share, of the Company (the “Common Stock”) totaling, in the aggregate, 5,978,863 shares,
or approximately 7.7% of the Common Stock issued and outstanding on the date hereof;
WHEREAS, the Radoff Parties
submitted a letter to the Company on December 5, 2023 (the “Nomination Letter”) nominating a slate of director
candidates to be elected to the Company’s board of directors (the “Board”) at the 2024 annual meeting of shareholders
of the Company (the “2024 Annual Meeting”); and
WHEREAS, as of the date hereof,
the Company and the Radoff Parties have determined to come to an agreement with respect to the composition of the Board and certain other
matters, as provided in this Agreement.
NOW, THEREFORE, in consideration
of the foregoing premises and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound hereby, agree as follows:
| 1. | Board Matters and Related Agreements. |
(A) Board
Appointments. The Company agrees that immediately following the execution of this Agreement, the
Board and all applicable committees of the Board shall take all necessary actions to (A) accept the resignation of Stephen L. Domenik
as Chairman of the Board and a director of the Company, who the Company hereby represents has submitted, or shall no later than the date
hereof submit, a letter of resignation to the Board that will become effective immediately prior to the appointment of the New Directors
(as defined below) to the Board, (B) increase the size of the Board by one (1) member to a total of six (6) directors,
and (C) appoint Cletus C. Glasener and Jeffrey J. Roncka (each a “New Director” and collectively, the “New
Directors”) as members of the Board, each with a term expiring at the 2024 Annual Meeting. The Company agrees that it will nominate
the New Directors for election at the 2024 Annual Meeting as directors and will recommend, support and solicit proxies for the election
of the New Directors at the 2024 Annual Meeting in the same manner as it traditionally recommends, supports and solicits proxies for the
election of the Company’s other director nominees.
(B) Replacements. If
any New Director is unable or unwilling to serve as a director and ceases to be a director, resigns as a director, is removed as a director,
or for any other reason fails to serve or is not serving as a director at any time prior to the expiration of the Standstill Period (as
defined below), provided that at such time the Radoff Parties beneficially own (as determined under Rule 13d-3 promulgated
under the Exchange Act) in the aggregate at least the lesser of (i) 5.0% of the Company’s then-outstanding Common Stock and
(ii) 3,691,000 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments),
the Radoff Parties shall have the ability to recommend to the Board a person to be a replacement director in accordance with this Section 1(B) (any
such replacement nominee who meets the criteria set forth in the next sentence, when appointed to the Board, shall be referred to as
a “Replacement Director”). Any Replacement Director must (A) be reasonably acceptable to the Board (such acceptance
not to be unreasonably withheld, conditioned or delayed), (B) qualify as “independent” pursuant to The Nasdaq Stock
Market LLC (“NASDAQ”) listing standards and (C) have the relevant financial and business experience to be a
director of the Company (a “Qualified Nominee”). The Nominating and Corporate Governance Committee of the Board (the
“Nominating Committee”) shall make its determination and recommendation regarding whether such Replacement Director
meets the foregoing criteria within five (5) business days after (i) such nominee has submitted to the Company the documentation
required by Section 1(I)(v) and (ii) representatives of the Board have conducted customary interview(s) of
such nominee, if such interviews are requested by the Board or the Nominating Committee. The Company shall use its reasonable best efforts
to conduct any interview(s) contemplated by this Section 1(B) as promptly as practicable, but in any case, assuming
reasonable availability of the nominee, within ten (10) business days after the Radoff Parties’ submission of such nominee.
In the event the Nominating Committee does not accept a person recommended by the Radoff Parties as the Replacement Director (such acceptance
not to be unreasonably withheld, conditioned or delayed with respect to a Qualified Nominee), the Radoff Parties shall have the right
to recommend additional substitute person(s) whose appointment shall be subject to the Nominating Committee recommending such person
in accordance with the procedures described above. Upon the recommendation of a Replacement Director nominee by the Nominating Committee,
the Board shall vote on the appointment of such Replacement Director to the Board no later than five (5) business days after the
Nominating Committee’s recommendation of such Replacement Director (it being acknowledged that the Board cannot unreasonably withhold
its acceptance); provided, however, that if the Board does not appoint such Replacement Director to the Board pursuant
to this Section 1(B), the Parties shall continue to follow the procedures of this Section 1(B) until
a Replacement Director is elected to the Board. Subject to NASDAQ rules and applicable law, upon a Replacement Director’s
appointment to the Board, the Board and all applicable committees of the Board shall take all necessary actions to appoint such Replacement
Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s
resignation or removal. Subject to NASDAQ rules and applicable law, until such time as any Replacement Director is appointed to
any applicable committee of the Board, the other New Director will serve as an interim member of such applicable committee. Any Replacement
Director designated pursuant to this Section 1(B) replacing a New Director prior to the mailing of the Company’s
definitive proxy statement for the 2024 Annual Meeting shall stand for election at the 2024 Annual Meeting together with the other director
nominees. Upon a Replacement Director’s appointment to the Board, such Replacement Director shall be deemed to be a New Director
for all purposes under this Agreement.
(C) Amendment
of Strategy and Alternatives Committee. Substantially concurrently with the execution of this Agreement (but in no event later than
two (2) business days hereafter), the Board and all applicable committees thereof shall take all action necessary to (i) amend
and restate the charter of the Strategy and Alternatives Committee of the Board (the “Strategy and Alternatives Committee”)
to include the oversight and completion of a business review of the Company’s operational performance, cost structure, and portfolio
composition, as well as to explore all value creation levers available to the Company, in the form attached as Exhibit A hereto
(the “Strategy and Alternatives Committee Charter”), (ii) amend the composition of the Strategy and Alternatives
Committee such that it shall consist of the New Directors, Bruce E. Grooms, Noel Heiks and Rex S. Jackson, and (iii) appoint
Mr. Roncka to serve as the Chair of the Strategy and Alternatives Committee, who shall serve in such role, subject to his
willingness, at least until the end of the Standstill Period. Except with the prior written consent of the Radoff Parties, prior to the
end of the Standstill Period, (x) the Strategy and Alternatives Committee shall include both New Directors and be comprised solely
of independent directors, and (y) the Strategy and Alternatives Committee Charter shall not be modified.
(D) Director
Committee Appointments. Subject to NASDAQ rules and applicable laws, and in addition to Section 1(C) above,
the Board and all applicable committees of the Board shall take all actions necessary to ensure that during the Standstill Period, each
committee and subcommittee of the Board, including any new committee(s) and subcommittee(s) that may be established, shall
include at least one (1) New Director. Without limiting the foregoing, the Board shall give each of the New Directors the same
due consideration for membership to any committee of the Board as any other director.
(E) Board
Leadership. Immediately following the execution of this Agreement, the Board and all applicable committees of the Board shall take
all actions necessary to appoint Mr. Glasener as the Chairman of the Board. Subject to his willingness to remain in such role, Mr. Glasener
shall serve as Chairman of the Board at least until the end of the Standstill Period.
(F) Board
Size. Prior to the end of the Standstill Period, the number of authorized directors on the Board shall not exceed six (6) directors
without the Radoff Parties’ prior written consent.
(G) Board
Compensation and Other Benefits. The Company agrees that the New Directors shall receive (A) the same benefits of director and
officer insurance as all other non-management directors on the Board, (B) the same compensation for his or her service as a director
as the compensation received by other non-management directors on the Board and (C) such other benefits on the same basis as all
other non-management directors on the Board.
(H) Board
Policies and Procedures. Each Party acknowledges that the New Directors, upon appointment to the Board, shall be governed by all of
the same policies, processes, procedures, codes, rules, standards and guidelines applicable to members of the Board, and will be required
to strictly adhere to the Company’s policies on confidentiality and insider trading imposed on all members of the Board.
(I) Additional
Agreements.
(i) The
Radoff Parties hereby irrevocably withdraw the Nomination Letter.
(ii) The
Radoff Parties shall comply, and shall cause each of their controlled Affiliates and Associates to comply with the terms of this Agreement
and shall be responsible for any breach of this Agreement by any such controlled Affiliate or Associate. As used in this Agreement, the
terms “Affiliate” and “Associate” shall have the respective meanings set forth in Rule 12b-2
promulgated by the U.S. Securities and Exchange Commission (the “SEC”) under the Exchange Act and shall include all
persons or entities that at any time during the term of this Agreement become Affiliates or Associates of any person or entity referred
to in this Agreement; provided, however, that the term “Associate” shall refer only to Associates controlled by the
Radoff Parties, and the terms “Affiliate” and “Associate” shall not include any publicly-traded portfolio company
of the Radoff Parties; provided, further, that, for purposes of this Agreement, the Radoff Parties shall not be an Affiliate or
Associate of the Company and the Company shall not be an Affiliate or Associate of the Radoff Parties.
(iii) During
the Standstill Period, except as otherwise provided herein, the Radoff Parties shall not, and shall cause each of their controlled Affiliates
and Associates not to, directly or indirectly, (A) nominate or recommend for nomination any person for election at any annual or
special meeting of the Company’s shareholders, (B) submit any proposal for consideration at, or bring any other business before,
any annual or special meeting of the Company’s shareholders, or (C) initiate, encourage or participate in any “vote
no,” “withhold” or similar campaign with respect to any annual or special meeting of the Company’s
shareholders. The Radoff Parties shall not publicly or privately encourage or support any other shareholder, person or entity to take
any of the actions described in this Section 1(I)(iii).
(iv) The
Radoff Parties shall appear in person or by proxy at the 2024 Annual Meeting and vote all shares of Common Stock beneficially owned by
the Radoff Parties at the 2024 Annual Meeting (i) in favor of all directors nominated by the Board for election, and (ii) otherwise
in accordance with the recommendations of the Board; provided, however, that in the event Institutional Shareholder Services
Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) both recommend otherwise with respect
to any proposals (other than the election of directors), the Radoff Parties shall be permitted to vote in accordance with the ISS or Glass
Lewis recommendation, provided, further, that the Radoff Parties shall be permitted to vote in their sole discretion with
respect to any publicly announced proposals relating to a merger, tender (or exchange) offer, acquisition, recapitalization, restructuring,
disposition of all or substantially all of the assets of the Company or other business combinations involving the Company requiring a
vote of shareholders of the Company. At least three (3) business days prior to the date of the 2024 Annual Meeting, the Radoff Parties
shall provide the Company with written confirmation and evidence of its compliance with this Section 1(I)(iv).
(v) The
Radoff Parties acknowledge that, prior to the date of this Agreement, if requested by the Company, each New Director, and prior to any
appointment, each Replacement Director, shall submit to the Company a fully completed copy of the Company’s standard director and
officer questionnaire and other reasonable and customary director onboarding documentation applicable to directors of the Company.
(A) The
Radoff Parties agree that, from the date of this Agreement until the earlier of (x) the date that is thirty (30) calendar days prior
to the deadline for the submission of shareholder nominations for the Company’s 2025 annual meeting of shareholders (the “2025
Annual Meeting”) pursuant to the Company’s Bylaws, as amended, or (y) the date that is one hundred twenty (120) calendar
days prior to the first anniversary of the 2024 Annual Meeting (the “Standstill Period”), the Radoff Parties shall
not, and shall cause each of their controlled Affiliates and Associates not to, in each case directly or indirectly, in any manner:
(i) engage
in any solicitation of proxies or become a “participant” in a “solicitation” (as such terms are
defined in Regulation 14A under the Exchange Act) of proxies, in each case, with respect to securities of the Company and other than in
a manner that is consistent with the Board’s recommendation on a matter or otherwise in connection with a matter for which the Radoff
Parties have voting discretion pursuant to Section 1(I)(iv), or knowingly initiate, encourage, assist or participate in any
“withhold” or similar campaign with respect to any proposal for consideration at, or other business brought before, the 2024
Annual Meeting;
(ii) form,
join, or in any way knowingly participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange
Act) with respect to the shares of the Common Stock (other than a “group” that includes all or some of the Radoff Parties
but does not include any other entities or persons that are not Radoff Parties as of the date hereof); provided, however,
that nothing herein shall limit the ability of an Affiliate of the Radoff Parties to join the “group” following the
execution of this Agreement, so long as any such Affiliate agrees to be bound by the terms and conditions of this Agreement;
(iii) deposit
any shares of Common Stock in any voting trust or subject any shares of Common Stock to any arrangement or agreement with respect to
the voting of any shares of Common Stock, other than (A) any such voting trust, arrangement or agreement solely among the Radoff
Parties and their Affiliates and Associates, (B) customary brokerage accounts, margin accounts, prime brokerage accounts and the
like, (C) granting any proxy in any solicitation approved by the Board and consistent with the recommendation of the Board, (D) granting
any proxy in any solicitation in connection with any matter for which the Radoff Parties have voting discretion pursuant to, and in accordance
with, Section 1(I)(iv) and (E) otherwise in accordance with this Agreement;
(iv) seek
or submit, or knowingly encourage any person or entity to seek or submit, nomination(s) in furtherance of a “contested solicitation”
for the appointment, election or removal of directors with respect to the Company or seek, or knowingly encourage or take any other action
with respect to the appointment, election or removal of any directors (except as specifically permitted in Section 1), in
each case in opposition to the recommendation of the Board; provided, however, that nothing in this Agreement shall prevent
the Radoff Parties or their Affiliates or Associates from taking actions in furtherance of identifying director candidates in connection
with the 2025 Annual Meeting so long as such actions do not create a public disclosure obligation for the Radoff Parties or the Company
and are undertaken on a basis reasonably designed to be confidential;
(v) (A) make
any proposal for consideration by shareholders at any annual or special meeting of shareholders of the Company, (B) make any offer
or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring,
disposition or other business combination involving the Radoff Parties and the Company, (C) affirmatively solicit a third party to
make an offer or proposal (with or without conditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization,
restructuring, disposition or other business combination involving the Company, or publicly encourage, initiate or support any third party
in making such an offer or proposal, (D) publicly comment on any third party proposal regarding any merger, tender (or exchange)
offer, acquisition, recapitalization, restructuring, disposition, or other business combination with respect to the Company by such third
party prior to such proposal becoming public or (E) call or seek to call a special meeting of shareholders, it being understood that
none of the foregoing will prohibit any member of the Radoff Parties or their Affiliates or Associates from (x) selling or tendering
its shares of Common Stock, or otherwise receiving consideration, pursuant to such transaction, or (y) voting on any such transaction
in its sole discretion in accordance with Section 1(I)(iv);
(vi) seek,
alone or in concert with others, representation on the Board, except as specifically permitted in Section 1;
(vii) advise,
knowingly encourage, knowingly support or knowingly influence any person or entity with respect to the voting or disposition of any securities
of the Company at any annual or special meeting of shareholders with respect to the appointment, election or removal of director(s), except
in accordance with Section 1;
(viii) make
any request for the Company’s stockholder list materials or other books and records;
(ix) comment
publicly about any director or the Company’s management, policies, strategy, operations, financial results or any transactions involving
the Company or any of its subsidiaries; or
(x) make
any request or submit any proposal to amend the terms of this Agreement other than through non-public communications with the Company
or the Board that would not be reasonably determined to trigger public disclosure obligations for any Party.
(B) Except
as expressly provided in Section 1 or Section 2(a), the Radoff Parties shall be entitled to (i) vote any
shares of Common Stock that they beneficially own as the Radoff Parties determine in their sole discretion and (ii) disclose, publicly
or otherwise, how they intend to vote or act with respect to any securities of the Company, any shareholder proposal or other matter to
be voted on by the shareholders of the Company and the reasons therefor.
(C) Notwithstanding
anything in Section 2(a) or elsewhere in this Agreement, nothing in this Agreement shall prohibit or restrict the Radoff
Parties from (i) communicating privately with the Board or any of the Company’s officers regarding any matter, so long as such
communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications, (ii) communicating
with shareholders of the Company and others in a manner that does not otherwise violate Section 2(a) or Section 3,
or (iii) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or
regulatory authority or stock exchange that has jurisdiction over the Radoff Parties. For the avoidance of doubt, nothing in this Agreement
shall be deemed to restrict in any way the New Directors in the exercise of their fiduciary duties under applicable law as directors of
the Company.
| 3. | Mutual Non-Disparagement. |
Subject to applicable law,
each of the Parties covenants and agrees that, during the Standstill Period, or if earlier, until such time as the other Party or any
of its agents, subsidiaries, Affiliates, officers, key employees or directors shall have breached this Section 3, neither
it nor any of its respective agents, subsidiaries, Affiliates, officers or directors shall in any way publicly disparage, call into disrepute
or otherwise defame or slander the other Party or such other Party’s subsidiaries, Affiliates, current or former directors or officers
(solely in connection with their service in such capacities), or any of their businesses, products or services, in any manner that would
reasonably be expected to damage the business or reputation thereof. For the avoidance of doubt, the foregoing shall not prevent the making
of any factual statement, including, but not limited to, in connection with any compelled testimony or production of information by legal
process, subpoena or as part of a response to a request for information from any governmental authority with purported jurisdiction over
the Party from whom information is sought.
During the Standstill Period,
each Party hereby covenants and agrees that it shall not, and shall not permit any of its respective agents, subsidiaries, Affiliates,
officers or directors to, directly or indirectly, alone or in concert with others, encourage, pursue or assist any other person to institute,
solicit, assist or join, as a party, any litigation, arbitration or other proceeding against or involving the other Party, any Affiliate
of the other Party, or any of its or their respective current or former directors or officers (solely in connection with their service
in such capacities), except for (i) any action to enforce the provisions of this Agreement, (ii) any counterclaims with respect
to any proceeding initiated by, or on behalf of one Party or its Affiliates against the other Party or its Affiliates in violation of
this Agreement, (iii) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement or
(iv) responding to or complying with validly issued legal process. Notwithstanding anything to the contrary herein, this Section 4
shall not prohibit the Radoff Parties from exercising statutory appraisal rights, if any, with respect to the Company.
| 5. | Representations and Warranties of the Company. |
The Company represents and
warrants to the Radoff Parties that (a) its authorized signatory set forth on the signature page to this Agreement has the power
and authority to execute this Agreement and any other documents or agreements to be entered into in connection with this Agreement and
to bind the Company thereto, (b) this Agreement has been duly and validly authorized, executed and delivered by the Company, and
assuming due execution by each counterparty hereto, constitutes a valid and binding obligation and agreement of the Company, and is enforceable
against the Company in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws generally affecting the rights of creditors and subject to general equity principles,
(c) prior to entering into this Agreement, the Board was composed of five (5) directors and there are no vacancies on the Board
and (d) the execution, delivery and performance of this Agreement by the Company does not and will not (i) require the approval
of the shareholders of the Company, (ii) violate or conflict with any law, rule, regulation, order, judgment or decree applicable
to the Company, or (iii) result in any breach or violation of or constitute a default (or an event which with notice or lapse of
time or both would constitute such a breach, violation or default) under or pursuant to, or result in the loss of a material benefit under,
or give any right of termination, amendment, acceleration or cancellation of, any organizational document or material agreement to which
the Company is a party or by which it is bound.
| 6. | Representations and Warranties of the Radoff Parties. |
The Radoff Parties represent
and warrant to the Company that (a) the authorized signatory of the Radoff Parties set forth on the signature page hereto has
the power and authority to execute this Agreement and any other documents or agreements to be entered into in connection with this Agreement
and to bind each of the Radoff Parties thereto, (b) this Agreement has been duly authorized, executed and delivered by the Radoff
Parties, and assuming due execution by each counterparty hereto, is a valid and binding obligation of the Radoff Parties, enforceable
against the Radoff Parties in accordance with its terms except as enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws generally affecting the rights of creditors and subject to general equity
principles, (c) the execution of this Agreement, the consummation of any of the transactions contemplated hereby, and the fulfillment
of the terms hereof, in each case in accordance with the terms hereof, will not conflict with, or result in a breach or violation of the
organizational documents of the Radoff Parties as currently in effect, (d) the execution, delivery and performance of this Agreement
by the Radoff Parties does not and will not (i) violate or conflict with any law, rule, regulation, order, judgment or decree applicable
to the Radoff Parties, or (ii) result in any breach or violation of or constitute a default (or an event which with notice or lapse
of time or both would constitute such a breach, violation or default) under or pursuant to, or result in the loss of a material benefit
under, or give any right of termination, amendment, acceleration or cancellation of, any organizational document, agreement, contract,
commitment, understanding or arrangement to which such member is a party or by which it is bound, (e) as of the date of this Agreement,
the Radoff Parties are deemed to beneficially own 5,978,863 shares of Common Stock, and (f) as of the date hereof, and except as
set forth in clause (e) above, the Radoff Parties do not currently have, and do not currently have any right to acquire, any interest
in any securities or assets of the Company or its Affiliates (or any rights, options or other securities convertible into or exercisable
or exchangeable (whether or not convertible, exercisable or exchangeable immediately or only after the passage of time or the occurrence
of a specified event) for such securities or assets or any obligations measured by the price or value of any securities of the Company
or any of its controlled Affiliates, including any swaps or other derivative arrangements designed to produce economic benefits and risks
that correspond to the ownership of shares of Common Stock or any other securities of the Company, whether or not any of the foregoing
would give rise to beneficial ownership (as determined under Rule 13d-3 promulgated under the Exchange Act), and whether or not to
be settled by delivery of shares of Common Stock or any other class or series of the Company’s stock, payment of cash or by other
consideration, and without regard to any short position under any such contract or arrangement).
| 7. | Press Release; Communications. |
Promptly following the execution
of this Agreement, the Company and the Radoff Parties shall jointly issue a mutually agreeable press release (the “Press Release”)
announcing certain terms of this Agreement in the form attached hereto as Exhibit B. Prior to the issuance of the Press Release
and subject to the terms of this Agreement, neither the Company (including the Board and any committee thereof) nor the Radoff Parties
shall issue any press release or make any public announcement regarding this Agreement or the matters contemplated hereby without the
prior written consent of the other Party. During the Standstill Period, neither the Company nor the Radoff Parties shall make any public
announcement or statement that is inconsistent with or contrary to the terms of this Agreement. The Radoff Parties acknowledge and agree
that the Company may file this Agreement and file or furnish the Press Release with the SEC as exhibits to a Current Report on Form 8-K
and other filings with the SEC. The Radoff Parties shall be given a reasonable opportunity to review and comment on any Current Report
on Form 8-K or other filing with the SEC made by the Company with respect to this Agreement, and the Company shall give reasonable
consideration to any comments of the Radoff Parties. The Company acknowledges and agrees that the Radoff Parties may file this Agreement
as an exhibit to its Schedule 13D with the SEC. The Company shall be given a reasonable opportunity to review and comment on such Schedule
13D filing made by the Radoff Parties with respect to this Agreement, and the Radoff Parties shall give reasonable consideration to any
comments of the Company.
Each of the Radoff Parties,
on the one hand, and the Company, on the other hand, acknowledges and agrees that irreparable injury to the other Party hereto may occur
in the event any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached
and that such injury may not be adequately compensable by the remedies available at law (including the payment of money damages). It is
accordingly agreed that the Radoff Parties, on the one hand, and the Company, on the other hand (the “Moving Party”),
shall each be entitled to seek specific enforcement of, and injunctive relief to prevent any violation of, the terms hereof, and the other
Party hereto will not take action, directly or indirectly, in opposition to the Moving Party seeking such relief on the grounds that any
other remedy or relief is available at law or in equity. This Section 8 is not the exclusive remedy for any violation of this
Agreement and will be in addition to all other remedies available at law or in equity.
All fees, costs and expenses
incurred in connection with this Agreement and all matters related to this Agreement will be paid by the Party incurring such fees, costs
or expenses; provided, however, that the Company shall promptly reimburse the Radoff Parties for their reasonable and documented
out-of-pocket fees and expenses incurred in connection with the negotiation and entry into this Agreement and the matters related thereto
(including, for the avoidance of doubt, the 2024 Annual Meeting), provided that such reimbursement shall not exceed $100,000 in the aggregate.
The Company shall remit such reimbursement to the Radoff Parties within five (5) business days of receiving documentation therefor.
If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated. It is hereby stipulated and declared to be the intention of the Parties that the Parties would have executed
the remaining terms, provisions, covenants and restrictions without including any of such which may be hereafter declared invalid, void
or unenforceable. In addition, the Parties agree to use their best efforts to agree upon and substitute a valid and enforceable term,
provision, covenant or restriction for any of such that is held invalid, void or enforceable by a court of competent jurisdiction.
Any notices, consents, determinations,
waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed
to have been delivered: (a) upon receipt, when delivered personally; (b) upon confirmation of receipt, when sent by email (provided
such confirmation is not automatically generated); or (c) two (2) business days after deposit with a nationally recognized overnight
delivery service, in each case properly addressed to the Party to receive the same. The addresses for such communications are as follows.
At any time, any Party may, by notice given to the other Parties in accordance with this Section 11, provide updated information
for notices pursuant to this Agreement.
If to the Company:
EMCORE Corporation
2015 W. Chestnut Street
Alhambra, California 91803
Attention: General Counsel
Email:
with a copy (which shall not constitute notice) to:
Pillsbury Winthrop Shaw Pittman LLP
2550 Hanover Street
Palo Alto, California 94304-1115
Attention: James J. Masetti
Email: jim.masetti@pillsburylaw.com
If to the Radoff Parties:
Bradley L. Radoff
2727 Kirby Drive, Unit 29L
Houston, Texas 77098
Email:
with a copy (which shall not constitute notice) to:
Olshan Frome Wolosky LLP
1325 Avenue of the Americas
New York, New York 10019
Attention: Ryan Nebel; Rebecca Van Derlaske
Email: rnebel@olshanlaw.com; rvanderlaske@olshanlaw.com
This Agreement shall be governed
by and construed and enforced in accordance with the laws of the State of New Jersey without reference to the conflict of laws principles
thereof that would result in the application of the law of another jurisdiction. Each of the Parties hereto irrevocably agrees that any
legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement
of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other Party hereto or its
successors or assigns, shall be brought and determined exclusively in the state or federal courts located in the State of New Jersey.
Each of the Parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property,
generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating
to this Agreement in any court other than the aforesaid courts. Each of the Parties hereto hereby irrevocably waives, and agrees not to
assert in any action or proceeding with respect to this Agreement, (a) any claim that it is not personally subject to the jurisdiction
of the above-named courts for any reason, (b) any claim that it or its property is exempt or immune from jurisdiction of any such
court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment
in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by applicable legal
requirements, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the
venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in
or by such courts.
This Agreement and any amendments
to this Agreement may be executed in one or more textually identical counterparts, all of which will be considered one and the same agreement
and will become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it
being understood that all Parties need not sign the same counterpart. Any such counterpart, to the extent delivered by fax or .pdf, .tif,
..gif, .jpg or similar attachment to electronic mail or by an electronic signature service (any such delivery, an “Electronic
Delivery”), will be treated in all manner and respects as an original executed counterpart and will be considered to have the
same binding legal effect as if it were the original signed version thereof delivered in person. No Party may raise the use of an Electronic
Delivery to deliver a signature, or the fact that any signature or agreement or instrument was transmitted or communicated through the
use of an Electronic Delivery, as a defense to the formation of a contract, and each Party forever waives any such defense, except to
the extent that such defense relates to lack of authenticity.
| 14. | Entire Agreement; Amendment and Waiver; Successors and Assigns; Third Party Beneficiaries; Term. |
This Agreement contains the
entire understanding of the Parties with respect to its subject matter and supersedes and cancels all prior written, oral and implied
agreements and understandings with respect to the subject matter of this Agreement. There are no restrictions, agreements, promises,
representations, warranties, covenants or undertakings between the Parties other than those expressly set forth herein. No modifications
of this Agreement can be made except in writing signed by an authorized representative of each of the Company and the Radoff Parties.
No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law. The terms and conditions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable
by the Parties hereto and their respective successors, heirs, executors, legal representatives, and permitted assigns. No Party shall
assign this Agreement or any rights or obligations hereunder without, with respect to the Radoff Parties, the prior written consent of
the Company, and with respect to the Company, the prior written consent of the Radoff Parties. This Agreement is solely for the benefit
of the Parties and is not enforceable by any other persons or entities. Unless otherwise mutually agreed in writing by each Party, this
Agreement shall terminate at the end of the Standstill Period. Notwithstanding the foregoing, the provisions of Section 8
through this Section 14 shall survive the termination of this Agreement. No termination of this Agreement shall relieve
any Party from liability for any breach of this Agreement prior to such termination.
[The remainder of this page intentionally
left blank]
IN WITNESS WHEREOF, this Agreement has been duly
executed and delivered by the duly authorized signatories of the Parties as of the date hereof.
|
EMCORE CORPORATION |
|
|
|
By: |
/s/ Jeffrey Rittichier |
|
|
Name:
Jeffrey Rittichier |
|
|
Title:
President and CEO |
|
THE RADOFF FAMILY FOUNDATION |
|
|
|
|
|
By: |
/s/ Bradley L. Radoff |
|
|
Name: |
Bradley L. Radoff |
|
|
Title: |
Director |
|
/s/ BRADLEY L. RADOFF |
|
BRADLEY L. RADOFF |
[Signature
Page to Agreement]
EXHIBIT A
Strategy and Alternatives Committee Charter
EXHIBIT B
Form of Press Release
Exhibit
16.1
KPMG
LLP
Suite
700
20
Pacifica
Irvine,
CA 92618-3391
January 11,
2024
Securities
and Exchange Commission
Washington,
D.C. 20549
Ladies and
Gentlemen:
We were previously
principal accountants for EMCORE Corporation and subsidiaries (the “Company”) and, under the date of December 27, 2023, we
reported on the consolidated financial statements of the Company as of and for the years ended September 30, 2023 and 2022 and the effectiveness
of internal control over financial reporting as of September 30, 2023. On January 6, 2024, we were dismissed.
We
have read the Company’s statements included under Item 4.01 of its Form 8-K dated January 11, 2024, and we agree with such statements,
except that we are not in a position to agree or disagree with the Company’s statements included in Item 4.01(b), Engagement of
New Independent Registered Public Accounting Firm.
Very truly
yours,
/s/ KPMG LLP
| | KPMG
LLP, a Delaware limited liability partnership and a member firm of
the KPMG global organization of independent member firms affiliated with
KPMG International Limited, a private English company limited by guarantee. |
Exhibit
99.1
EMCORE
Corporation Enters Into Cooperation Agreement with Bradley L. Radoff
Appoints Cletus C. Glasener and Jeffrey J. Roncka
to its Board of Directors
Appoints Cletus C. Glasener as Chairman of the
Board
Amends and Reconstitutes Strategy and Alternatives
Committee
ALHAMBRA, CA, January 11, 2024 (GLOBE NEWSWIRE)
– EMCORE Corporation (NASDAQ: EMKR) (“EMCORE” or the “Company”), the world’s largest independent provider
of inertial navigation solutions to the aerospace and defense industry, today announced that it has entered into a cooperation agreement
(the “Cooperation Agreement”) with Bradley L. Radoff and certain of his affiliates (“Radoff”), pursuant to which
Cletus C. Glasener and Jeffrey J. Roncka were appointed to the Company’s board of directors (the “Board”) effective
immediately. The Company also announced that Chairman Stephen L. Domenik has stepped down from the
Board and the size of the Board was increased to six effective immediately to facilitate the appointment of the new Board members. Pursuant
to the Cooperation Agreement, Mr. Glasener was appointed as Chairman of the Board.
Pursuant
to the Cooperation Agreement, EMCORE has also agreed to amend and restate the charter for the Strategy and Alternatives Committee of the
Board (the “Strategy and Alternatives Committee”) to include the oversight and completion of a business review of the Company’s
operational performance, cost structure, and portfolio composition, as well as to explore all value creation levers available to the Company.
The composition of the Strategy and Alternatives Committee will be reconstituted to consist of the independent directors of the Board
and Mr. Roncka will serve as the Chair.
Jeffrey
Rittichier, EMCORE’s President, CEO and Board member, stated, “We are excited to welcome Cletus and Jeff to our Board, as
we plan for the future growth of the Company. Their deep industry experience, leadership expertise, and diverse skills will add valuable
insight to our Board as we focus on achieving our business objectives. On behalf of the entire Board, I also want to extend our appreciation
to Steve Domenik for his many years of service to the Company.” Mr. Domenik’s term as a director of the Company was set
to expire at the 2024 Annual Meeting due to the Company’s director service term limits, and Mr. Domenik agreed to retire early
from the Board to facilitate the execution of the Cooperation Agreement.
Mr. Radoff
added, “I am pleased to have worked quickly and efficiently with the Board to reach a constructive agreement for the benefit
of all stockholders. Cletus and Jeff bring tremendous industry experience, and will be valuable additions to the Board in helping the
Company achieve its potential.”
Messrs. Glasener
and Roncka will stand for election at EMCORE’s upcoming annual meeting. The full Cooperation Agreement with Radoff will be filed
on Form 8-K with the U.S. Securities and Exchange Commission.
New
Director Biographies
Mr. Glasener is a seasoned c-level executive
with over 30 years of experience within the aerospace, defense, technology and security industries. He currently serves as the Chief Financial
Officer of Leonardo US Corporation, a subsidiary of Leonardo S.p.A. and previously served as the Chief Financial Officer of Elbit Systems
of America for over 13 years. Prior to Elbit, Mr. Glasener held executive and senior positions at L-3 Technologies, Inc. and
Collins Industries, Inc. Earlier in his career, Mr. Glasener served for over 20 years in roles of increasing seniority at Vought
Aircraft Industries, Inc. He received an M.B.A. from the University of Missouri-St. Louis and a B.A. in Economics from Washington
University in St. Louis. Mr. Glasener is a Certified Public Accountant, Certified Management Accountant and Chartered Global Management
Accountant. He is also certified in Financial Management.
Mr. Roncka
is an experienced senior strategist and industry expert in the global defense, aerospace, and government services markets. Mr. Roncka
serves as the President and Founder of Sabot Advisors, LLC, an advisory firm focused on the global defense, intelligence, government services,
banking, finance and related technology sectors. Previously, Mr. Roncka served as Head of Corporate Strategy for Booz Allen Hamilton
Inc. and as a Senior Strategy Consultant to Booz Allen through MBO Professional Services, Inc. Prior to Booz Allen, Mr. Roncka
held senior positions at various defense and consulting firms, including Renaissance Strategic Advisors II, LLC, CRA Industries, Inc.
and Global Technology Partners LLC. Mr. Roncka began his career as an Industrial and Financial Analyst at the Office of the Secretary
of Defense for the United States Department of Defense. Mr. Roncka received an M.A. in National Security Studies from The George
Washington University and an A.B. in Modern European History, magna cum laude, from Harvard University.
About EMCORE
EMCORE Corporation is a leading provider of inertial navigation products for the aerospace and defense markets. We leverage industry-leading
Photonic Integrated Chip (PIC), Quartz MEMS, and Lithium Niobate chip-level technology to deliver state-of-the-art component and system-level
products across our end-market applications. EMCORE has vertically-integrated manufacturing capability at its facilities in Alhambra,
CA, Budd Lake, NJ, Concord, CA, and Tinley Park, IL. Our manufacturing facilities all maintain ISO 9001 quality management certification,
and we are AS9100 aerospace quality certified at our facilities in Alhambra, Budd Lake, and Concord. For further information about EMCORE,
please visit https://www.emcore.com.
Forward-Looking Statements
The information provided herein may include forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of
1934 (“Exchange Act”). These forward-looking statements are based on our current expectations and projections about future
events and financial trends affecting the financial condition of our business. Such forward-looking statements include, in particular,
statements about the Company’s plans for future growth and the anticipated benefits of the appointment of Cletus Glasener and Jeffrey
Roncka to the Company’s Board of Directors.
These forward-looking statements may be identified
by the use of terms and phrases such as “anticipates”, “believes”, “can”, “could”, “estimates”,
“expects”, “forecasts”, “intends”, “may”, “plans”, “projects”,
“targets”, “will”, and similar expressions or variations of these terms and similar phrases. Additionally, statements
concerning future matters such as the development of new products, future growth, enhancements or technologies, sales levels, expense
levels, and other statements regarding matters that are not historical are forward-looking statements. We caution that these forward-looking
statements relate to future events or our future financial performance and are subject to business, economic, and other risks and uncertainties,
both known and unknown, that may cause actual results, levels of activity, performance, or achievements of our business or our industry
to be materially different from those expressed or implied by any forward-looking statements.
These forward-looking statements involve risks
and uncertainties that could cause actual results to differ materially from those projected, including without limitation, the following:
(a) risks related to the integration of two new directors into the Board of Directors; (b) disruptions to our operations as
a result of our restructuring activities; (c) costs and expenses incurred in connection with restructuring activities and anticipated
operational cost savings arising from the restructuring actions; (d) the effects of personnel losses; (e) risks related to the
sale of our Broadband and defense optoelectronics businesses, including without limitation (i) the failure to fully realize the anticipated
benefits of such transaction, (ii) third party costs incurred by the Company related to any such transaction, (iii) risks associated
with liabilities related to the transaction that were retained by the Company, and (iv) risks and uncertainties related to the transfer
to the buyer of our manufacturing support and engineering center in China; (f) risks related to shutdown or potential sale of our
Chips business and wafer fabrication facility, including without limitation (i) the failure to successfully negotiate or execute
definitive transaction agreements, (ii) termination of any definitive agreement prior to closing, (iii) failure to achieve any
anticipated proceeds from any such sale or to fully realize the anticipated benefits of such a transaction, even if the potential transaction
occurs, (iv) diversion of management’s time and attention from our remaining businesses to the sale of such businesses, (v) third
party costs incurred by the Company related to any such transaction, and (vi) risks associated with any liabilities related to the
transaction or any such assets or business that are retained by the Company in any sale transaction; (g) rapidly evolving markets
for the Company's products and uncertainty regarding the development of these markets; (h) the Company's historical dependence on
sales to a limited number of customers and fluctuations in the mix of products and customers in any period; (i) delays and other
difficulties in commercializing new products; (j) the failure of new products: (i) to perform as expected without material defects,
(ii) to be manufactured at acceptable volumes, yields, and cost, (iii) to be qualified and accepted by our customers, and (iv) to
successfully compete with products offered by our competitors; (k) uncertainties concerning the availability and cost of commodity
materials and specialized product components that we do not make internally; (l) actions by competitors; (m) risks and uncertainties
related to the outcome of legal proceedings; (n) risks and uncertainties related to applicable laws and regulations; (o) acquisition-related
risks, including that (i) the revenues and net operating results obtained from our recent acquisitions may not meet our expectations,
(ii) the costs and cash expenditures for integration of our recent acquisitions may be higher than expected, (iii) we may not
recognize the anticipated synergies from our recent acquisitions, (iv) there could be losses and liabilities arising from these acquisitions
that we will not be able to recover from any source, and (v) we may not realize sufficient scale from these acquisitions and will
need to take additional steps, including making additional acquisitions, to achieve our growth objectives; (p) the effect of component
shortages and any alternatives thereto; (q) risks and uncertainties related to manufacturing and production capacity; (r) risks
related to the conversion of order backlog into product revenue; and (s) other risks and uncertainties discussed under Item 1A -
Risk Factors in our Annual Report on Form 10-K for the fiscal year ended September 30, 2023, as updated by our subsequent periodic
reports.
Forward-looking statements are based on certain
assumptions and analysis made in light of our experience and perception of historical trends, current conditions, and expected future
developments as well as other factors that we believe are appropriate under the circumstances. While these statements represent our judgment
on what the future may hold, and we believe these judgments are reasonable, these statements are not guarantees of any events or financial
results. All forward-looking statements in this press release are made as of the date hereof, based on information available to us as
of the date hereof, and subsequent facts or circumstances may contradict, obviate, undermine, or otherwise fail to support or substantiate
such statements. We caution you not to rely on these statements without also considering the risks and uncertainties associated with these
statements and our business that are addressed in our filings with the Securities and Exchange Commission (“SEC”) that are
available on the SEC’s web site located at www.sec.gov, including the sections entitled “Risk Factors” in our Annual
Report on Form 10-K and our Quarterly Reports on Form 10-Q. Certain information included in this press release may supersede
or supplement forward-looking statements in our other Exchange Act reports filed with the SEC. We do not intend to update any forward-looking
statement to conform such statements to actual results or to changes in our expectations, except as required by applicable law or regulation.
###
Contact:
EMCORE Corporation
Tom Minichiello
(626) 293-3400
investor@emcore.com
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