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Exhibit 4.2
NEW JERSEY RESOURCES CORPORATION
BY-LAWS
ADOPTED NOVEMBER 20, 1981
AMENDED NOVEMBER 19, 1982
AMENDED DECEMBER 8, 1983
AMENDED JANUARY 29, 1986
AMENDED AND ADOPTED DECEMBER 17, 1986
AMENDED JANUARY 27, 1988
AMENDED NOVEMBER 29, 1995
AMENDED MARCH 12, 1997
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ARTICLE I
BOARD OF DIRECTORS
SECTION 1 - ELECTION. The business and affairs of the Company
shall be conducted under the direction of its Board of Directors, which shall
have all the powers of the Company except such as are by statute, by the
Certificate of Incorporation, or by these By-Laws conferred upon or reserved to
the stockholders. The number of directors constituting the entire Board of
Directors shall not be less than three, the exact number to be determined from
time to time by resolution adopted by the affirmative vote of a majority of the
entire Board of Directors, each director to hold office until his successor
shall have been elected and qualified. The members of the Board of Directors
shall be divided into classes in the manner provided by Paragraph 7 of the
Corporation's Certificate of Incorporation and shall be elected and serve for
such terms of office as are provided therein.
Nominations of persons for election as directors may be made
by the Board of Directors or by any stockholder entitled to vote for the
election of directors. Any stockholder entitled to vote for the election of
directors may nominate a person or persons for election as director only if
written notice of such stockholder's intent is delivered to the Secretary of the
Company at the principal executive offices of the Company (i) with respect to an
election to be held at an annual meeting of stockholders, not later than 75 days
prior to the first anniversary of the preceding year's annual meeting, or as set
out below, and (ii) with respect to an election to be held at a special meeting
of stockholders for the election of directors, not later than 10 days following
the date on which public announcement (as defined in Article III, Section 1 of
these By-Laws) of the date of such meeting is first made. In the event that the
date of the annual meeting is advanced by more than 30 days or delayed by more
than 60 days from the anniversary date of the annual meeting, notice by the
stockholder must be delivered not later than 75 days prior to such annual
meeting, or, if the date of the annual meeting is less than 75 days from the
date on which public announcement of the date of such meeting is first made, not
later than or the 10th day following the day on which public announcement of the
date of such meeting is first made. Notwithstanding anything in
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the foregoing sentence to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Company is increased
and there is no public announcement naming all of the nominees for director or
specifying the size of the increased Board of Directors made by the Company at
least 85 days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Section shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary of the
Company not later than the close of business on the 10th day following the day
on which such public announcement is first made.
Such stockholder's notice shall set forth: (a) the name and
address of the stockholder who intends to make the nomination and the name,
address, age, and principal occupation or employment of the person or persons
to be nominated; (b) a representation that the stockholder is a holder of
record of stock of the Company entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (c) the number and class of shares of the Company which
are owned by such stockholder and the beneficial owner, if any, and the number
and class of shares, if any, beneficially owned by the nominee; (d) a
description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder; (e) such other information regarding each nominee that is required
to be disclosed in connection with the solicitation of proxies for the election
of directors, or as otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")
(including, without limitation, such person's written consent to being named in
a proxy statement as a nominee and to serving as a director if nominated). The
Chairman of the Board or other person presiding at a meeting of stockholders,
may refuse to acknowledge the nomination of any person not made in accordance
with the procedures prescribed by these By-Laws, and in that event the defective
nomination shall be disregarded.
Subject to limits, if any, contained in the Certificate of
Incorporation, the Board of Directors shall
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be authorized at any time to increase the number of directors and to elect a new
director to fill any such newly created directorship, by resolution adopted by
the affirmative vote of the majority of the directors then in office. Any such
new director shall hold office until the next annual meeting of stockholders and
until his successor is elected.
If the office of any director becomes vacant for any reason,
any such vacancy shall be filled by the Board of Directors, by resolution
adopted by the affirmative vote of the majority of the remaining directors then
in office. Any such new director shall hold office for the unexpired term and
until his successor is elected. The stockholders may fill a directorship
resulting from a vacancy or from an increase in the number of directors only if
the Board of Directors shall not have done so.
The Board of Directors shall be authorized at any time by
resolution to increase the number of directors and, by a majority vote, to elect
a new director to fill any such newly created directorship. Any such new
director shall hold office until the next Annual Stockholders' Meeting and until
his successor is elected.
A director, or the entire Board of Directors may be removed
only for cause and only by the affirmative vote of the holders of at least 80%
of the voting power of the voting stock.
SECTION 2 - BOARD OF DIRECTORS MEETINGS. As soon as
practicable, after the Annual Meeting of Stockholders, the Board of Directors
shall meet for organization and elect a Chairman, who shall not ex officio be
deemed an officer or employee of the Company unless expressly so designated by
the Board as the Chief Executive Officer of the Company. The Chairman shall
preside at all meetings of the Board of Directors. The Board of Directors may
also elect a Vice Chairman, who shall not ex officio be deemed an officer or
employee of the Company, but who shall preside at any meeting of the Board of
Directors in the absence of the Chairman.
Regular meetings of the Board of Directors shall be held in
alternate months on the last Wednesday of each month unless otherwise determined
by resolution of the
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Board. The time and place of each meeting shall be designated by resolution of
the Board, Chairman, the President, or the Secretary in the notice of meeting.
Special meetings of the Board of Directors may be called at
any time by the Chairman or the President. The Secretary shall also call such
meeting on the written request of a majority of the directors.
No notice shall be required for regular meetings of the Board
of Directors, provided the time and place shall have been previously fixed by
resolution of the Board. The meeting for organization may be held on the day of
and after the annual meeting of stockholders. Two days notice of a special
meeting of the Board of Directors shall be given, but this notice may be waived
at any time in writing or by telegraph. A meeting may be held at any time
without notice when all directors are present and consent thereto. The Board of
Directors may also act without a meeting by unanimous written consent which
shall be filed with the minutes of the Board.
At all meetings of the Board of Directors, the presence in
person or by telephonic conference call of a majority of directors shall
constitute a quorum for the transaction of business. A lesser number than a
quorum, however, may meet and adjourn to any day.
SECTION 3 - REMUNERATION. Directors, other than Company
Officers, shall receive remuneration in such amount as shall be fixed by the
Board of Directors from time to time.
ARTICLE II
OFFICERS
SECTION 1 - APPOINTMENT. The Board of Directors shall, as soon
as practicable after the Annual Meeting, meet for organization and shall elect
or appoint a president; such number of Vice Presidents as the Board may direct;
Treasurer; and a Secretary, any of whom may but need not be a director, except
that the officer designated as the Chief
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Executive Officer as provided herein must be one of the directors.
The Board of Directors shall further designate either the
Chairman of the Board, or the President, as the Chief Executive Officer of the
Company. In the event that the Chairman of the Board is designated by the Board
of Directors as the Chief Executive Officer, the president shall be the Chief
Operating Officer of the Company. In the event that the President is designated
as the Chief Executive Officer, the Board may, in its discretion, designate a
Vice President as the Chief Operating Officer. The Board of Directors shall
further designate an officer as the Chief Financial Officer of the Company.
The Board of Directors may also elect or appoint one or more
Assistant Vice Presidents, Assistant Treasurers, Assistant Secretaries, and such
other officers as the Board shall from time to time deem necessary, who shall
have such authority and shall perform such duties as may be prescribed in these
By-Laws or by the Board of Directors.
Any two or more offices may be held by the same person. All of
said officers shall hold their offices at the pleasure of the Board.
SECTION 2 - CHIEF EXECUTIVE OFFICER. The Chief Executive
Officer shall preside at all meetings of the stockholders and shall have, under
the direction of the Board of Directors, overall executive responsibility for
the supervision, management, and control of the business of the Company and of
all departments of the Company's operations; he shall sign all certificates of
stock and all contracts and other instruments in the name of the Company, unless
otherwise ordered by the Board; and shall have the authority and responsibility
to do and perform all other duties as provided by law, by these By-Laws, or
which are otherwise incidental to his office.
SECTION 3 - CHIEF OPERATING OFFICER. The Chief Operating
Officer, if there be any such officer so designated, shall have general
responsibility for the operation and administration of the business of the
Company subject to the direction and control of the Chief Executive Officer and
of the Board of Directors. He shall perform such other duties as may be
delegated or assigned to him by
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the Chief Executive Officer, or by the Board of Directors, and in the absence of
the Chief Executive Officer, the Chief Operating Officer shall perform the
duties of the Chief Executive Officer, and the performance of any such duty by
the Chief Operating Officer shall be conclusive evidence of his right to act.
SECTION 4 - CHIEF FINANCIAL OFFICER. The Chief Financial
Officer shall have overall responsibility for the preparation and maintenance of
the Company's financial books and records, for the accuracy and integrity of all
reports of the Company's financial condition which are prepared or issued under
his authority, and for the financial affairs; and requirements of the Company.
Upon request, he shall make a report of the financial condition of the Company
to the Board of Directors or to the Chief Executive Officer, and shall perform
such other duties as may be delegated or assigned to him by the Board of
Directors or by the Chief Executive Officer.
SECTION 5 - VICE PRESIDENTS. Each Vice President shall have
such powers and shall perform such duties as may be delegated or assigned to him
by the Board of Directors, by the Chief Executive Officer (if other than the
President), by the President, or by the Chief Operating Officer ( if other than
the President), and in the absence of the President: the Vice Presidents
severally, in the order to be designated by the chief Executive Officer, shall
perform the duties of the President, and the performance of any such duty by a
Vice President shall be conclusive evidence of his right to act.
SECTION 6 - ASSISTANT VICE PRESIDENT. Each Assistant Vice
President shall have such powers and perform such duties as may be assigned to
him by the Board of Directors, by the Chief Executive Officer (if other than the
President), by the President, or by any Vice President and the performance of
any such duty shall be conclusive evidence of his right to act.
SECTION 7 - SECRETARY. The Secretary shall keep minutes of all
meetings of the Board of Directors and Committees thereof, and of the
stockholders, and shall give all notices of meetings of the stockholders, and of
the Board of Directors and Committees thereof. He shall have custody of all
deeds, contracts, agreements, and other
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records, except as otherwise provided in these By-Laws, or by the Board of
Directors, and shall attend to such correspondence of the Company as the Board
of Directors or the Chief Executive Officer shall direct. He shall be the
custodian of the seal of the Company and shall affix it to any instrument
requiring the same, except as otherwise provided herein or by the Board of
Directors. He shall further perform such other duties as may be delegated or
assigned to him by the Board of Directors, or by the Chief Executive Officer,
and the performance of any such duty shall be conclusive evidence of his right
to act.
SECTION 8 - ASSISTANT SECRETARY. Each Assistant Secretary, if
there be any such officer, shall perform such duties as may be assigned to him
by the Board of Directors, by the Chief Executive Officer, or by the Secretary
and the performance of any such duties shall be conclusive evidence of his right
to act.
SECTION 9 - TREASURER. The Treasurer shall have charge of all
receipts and disbursements of the Company and shall be the custodian of the
Company's funds. He shall have full authority to receive and give receipts for
all monies due and payable to the Company from any source whatever, and to
endorse checks, drafts and warrants in its name and on its behalf, and full
discharge for the same to give. The Treasurer shall also have full authority to
sign all checks, notes, drafts and certificates of stock. A report of the
financial condition of the Company shall be made by the Treasurer or to the
Chief Executive Officer whenever so requested by either of them. He shall
further perform such other duties as may be delegated or assigned to him by the
Board of Directors, by the Chief Executive Officer, or by the Chief Financial
Officer, and the performance of any such duty shall be conclusive evidence of
his right to act.
SECTION 10 - ASSISTANT TREASURER. Each Assistant Treasurer, if
there be any such officer, shall have such powers and shall perform such duties
as may be assigned to him by the Board of Directors, or by the Chief Executive
Officer, by the Chief Financial Officer, or by the Treasurer, and the
performance of any such duty shall be conclusive evidence of his right to act.
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ARTICLE III
STOCKHOLDERS' MEETINGS
SECTION 1 - ANNUAL MEETING OF STOCKHOLDERS. The annual meeting
of the stockholders shall be held on the last Wednesday in the month of January
in each year, at the hour of 10:30 a.m., at the principal office of the Company
in New Jersey, or at such other date, time and place as may be fixed from time
to time by resolution of the Board of Directors and set forth in the notice of
the meeting, for the purpose of electing directors and transacting such other
business as may properly come before the meeting.
At an annual meeting of the stockholders, only such business
shall be conducted as shall have been properly brought before an annual meeting.
To be properly brought before an annual meeting, business must be (i) specified
in the notice of the meeting (or any supplement thereto) given by or at the
direction of the Board of Directors, (ii) otherwise properly brought before the
meeting by or at the direction of the Board of Directors or (iii) otherwise
properly brought before the meeting by a stockholder of the Company who was a
stockholder of record at the time of giving of notice provided for in this
Section, who is entitled to vote at the meeting and who complied with the notice
procedures set forth in this Section. For business to be properly brought before
an annual meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the Company, at the principal
executive offices of the Company. To be timely, a stockholder's notice shall be
delivered not less than 75 days prior to the first anniversary of the preceding
year's meeting; provided however, that in the event that the date of the annual
meeting is advanced by more than 30 days or delayed by more than 60 days from
such anniversary date, notice by the stockholder, to be timely, must be so
delivered not later than the 75th day prior to such annual meeting or the 10th
day following the day on which public announcement (as defined herein) of the
date of such meeting is first made.
Such stockholder's notice shall set forth as to each matter
the stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the meeting and the
reasons for
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conducting such business at the meeting and any material interest in such
business of such stockholder and the beneficial owner, if any, on whose behalf
the proposal is made; and (ii) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the proposal is made (A) the name and
address of such stockholder, as they appear on the Company's books, and of such
beneficial owner and (B) the class and number of shares of the Company which are
owned beneficially and of record by such stockholder and such beneficial owner;
and (iii) in the event that such business includes a proposal to amend either
the Certificate of Incorporation or the Bylaws of the Company, the language of
the proposed amendment. Notwithstanding anything in these By-Laws to the
contrary, no business shall be conducted at any annual meeting except in
accordance with this paragraph, and the Chairman of the Board or other person
presiding at an annual meeting of stockholders, may refuse to permit any
business to be brought before an annual meeting without compliance with the
foregoing procedures. For the purposes of this paragraph "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Company with the Securities and Exchange Commission pursuant to
Sections 13, 14 or 15(d) of the Exchange Act. In addition to the provisions of
this paragraph, a stockholder shall also comply with all applicable requirements
of the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth herein. Nothing in these By-Laws shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the Company's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
Each share of stock entitled to vote at any meeting shall be
entitled to one vote, which vote may be given either in person or by proxy, but
no proxy shall be valid for more than eleven months unless a longer time is
expressly provided therein, but in no event shall a proxy be valid after three
years from the date of execution.
All elections for directors shall be by ballot.
SECTION 2 - SPECIAL MEETINGS OF STOCKHOLDERS. Special meetings
of the stockholders may be called at any time by the Chief Executive Officer, or
upon the order of
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the Board of Directors, or upon the written request of the holders of a majority
of the capital stock outstanding at the time and entitled to vote there at.
SECTION 3 - NOTICE OF MEETINGS OF STOCKHOLDERS; POSTPONEMENT
OF MEETINGS; OPENING AND CLOSING OF POLLS. Unless waived, written notice of the
time, place, and purpose or purposes of all stockholders' meetings, either
annual or special, shall be given by the Secretary not less than ten nor more
than sixty days before the date of the meeting, either personally or by mail, to
each stockholder entitled to vote at the meeting at his last post office address
as shown on the books of the Company.
Any previously scheduled annual or special meeting of the
stockholders may be postponed by resolution of the Board of Directors upon
public announcement made on or prior to the date previously scheduled for such
annual or special meeting.
The date and time for the opening and the closing of the polls
for each matter to be voted upon at any meeting of stockholders shall be
announced at the meeting by or pursuant to the direction of the officer
presiding at the meeting.
SECTION 4 - RECORD DATES. The Board of Directors by resolution
shall have power to fix in advance a date, not exceeding sixty days or less than
ten days preceding the date of any meeting of stockholders, and not exceeding
sixty days preceding the date for the payment of any dividend, or the date for
the allotment of rights, or the date when any change or conversion or exchange
of capital stock shall go into effect, as a record date for the determination of
the stockholders' vote at any such meeting or entitled to receive payment of any
such dividend, or any such allotment of rights or to exercise the rights in
respect to any such change, conversion or exchange of capital stock, and in such
case stockholders of record on the date so fixed shall be exclusively entitled
to such notice of and to vote at such meeting, or to receive payment of such
dividend, or allotment of rights, or to exercise such rights, as the case may
be, not withstanding any transfer of any stock on the books of the Company after
any such record date so fixed as aforesaid.
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SECTION 5 - QUORUM OF STOCKHOLDERS. At any meeting of the
stockholders, the holders of a majority of all the shares of the capital stock
of the Company entitled to vote at such meeting, present in person or
represented by proxy, shall constitute a quorum of the stockholders for all
purposes, unless the representation of a larger number shall be required by law,
and in that case, the representation of the number so required shall constitute
a quorum.
If the holders of the amount of stock necessary to constitute
a quorum shall fail to attend in person or by proxy at the time and place fixed
by these By-Laws for an annual meeting or fixed by notice as above provided for
a special meeting, a majority in interest of the stockholders present in person
or by proxy may adjourn from time to time, without notice other than by
announcement at the meeting, until holders of the amount of stock requisite to
constitute a quorum shall attend. At any such adjourned meeting at which a
quorum shall be present any business may be transacted which might have been
transacted at the meeting as originally called.
ARTICLE IV
COMMITTEES
SECTION 1 - EXECUTIVE COMMITTEE. The Board of Directors may
appoint an Executive Committee of not less than three of its members, including
ex officio the Chairman of the Board and the Chief Executive Officer (if other
than the Chairman). The Chairman shall, ex officio be the Chairman of the
Executive Committee and shall preside at its meetings.
The Executive Committee shall hold regular meetings at such
times and places as shall be designated by resolution of the Board or of the
Committee, or in the notice of meeting. Special meetings of the Executive
Committee may be called at any time by the Chairman or by the Chief Executive
Officer (if other than the Chairman) and shall be called upon the written
request of a majority of the members thereof.
No notice shall be required for regular meetings of the
Executive Committee, provided the time and place
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thereof shall have been previously fixed by resolution of the Board or the
Committee. Two days notice of a special meeting of the Executive Committee shall
be given to each member, but this notice may be waived by such member at any
time in writing or by telegraph. A meeting of the Executive Committee may be
held at any time without notice when all the members are present and consent
thereto. The Executive Committee may also act without a meeting, by unanimous
written consent of the members thereof which shall be filed with the minutes of
the Board. At every meeting of the Executive Committee, the presence in person
or by telephonic conference call, of a majority of the members thereof shall
constitute a quorum for the transaction of business.
During the intervals between the meetings of the Board of
Directors, the Executive Committee shall possess and may exercise all the powers
of the Board of Directors as may be permitted by law in the management and
direction of the business and the conduct of the affairs of the Company, in such
manner as the Executive Committee shall deem best for the interests of the
Company, in all cases in which specific directions shall not have been given by
the Board of Directors.
All action taken by the Executive Committee shall be reported
to the Board of Directors at its meeting next succeeding such action.
SECTION 2 - AUDIT COMMITTEE. The Board of Directors shall
appoint an Audit Committee of not less than three of its members who are
otherwise independent of the management of the Company. The Audit Committee
shall make recommendations to the Board with respect to the retention of the
Company's independent auditors, and shall review the plan and scope of the
annual and other independent audits; consult with the Company's independent
auditors regarding audit results and financial statements, including compliance
with disclosure requirements; oversee the adequacy of the Company's system of
internal accounting control; and oversee the effectiveness of the Company's
internal audit function, including review and consultation with the Company's
internal auditors with respect to internal audit results and recommendations.
SECTION 3 - OTHER COMMITTEES. The Board of Directors may,
from time to time, appoint such other
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committees for any purpose or purposes as the Board may deem appropriate, which
shall have such powers as shall be specified in the resolution of appointment.
SECTION 4 - RECORDS AND REPORTS. All committees shall keep
full records of their proceedings, and shall report from time to time to the
Board, as called upon by the Board, or as provided by these By-Laws.
SECTION 5 - REMUNERATION. Directors, other than Company
Officers, shall receive such compensation for their services as a member of any
Committee of the Board in such amount as shall be fixed by the Board of
Directors from time to time.
ARTICLE V
COMPANY STOCK
SECTION 1 - TRANSFER OF SHARES. Shares of Company stock shall
be transferable only on the books of the Company by the holder or owner in
person or by power of attorney, on surrender of the certificate. The canceled
certificate shall be permanently attached to its original stub in the book of
certificates.
SECTION 2 - STOCKHOLDER LIST. It shall be the duty of the
Secretary or Assistant Secretary to prepare, at least ten days before every
stockholders' meeting, a true, full, and complete list of all the stockholders
of the Company entitled to vote at the ensuing meeting, with the residence or
other address of record of each and with the number of shares held by each,
which list shall be made and arranged in alphabetical order, and shall, at all
times during the usual hours for business, be open to the examination of any
stockholder.
SECTION 3 - LOST CERTIFICATES OF STOCK. Any person or persons
applying for a certificate of stock to be issued in lieu of one alleged to be
lost or destroyed, shall, pursuant to the laws of the State of New Jersey
relating to lost or destroyed certificates of stock, furnish to the Company such
information as the Board of Directors may require to ascertain whether a
certificate of stock has been lost or destroyed, and shall if required by the
Board,
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furnish a surety bond in form and amount satisfactory to the Board to indemnify
the Company and its transfer agent against any claim or loss arising therefrom.
ARTICLE VI
STOCK OF OTHER CORPORATIONS
SECTION 1 - VOTING OF STOCK. Unless otherwise ordered by the
Board of Directors, the Chief Executive Officer or the President of the Company
or, in his or their absence, any Vice President, shall have full power and
authority on behalf of the Company to attend and to act and to vote at any
meetings of stockholders of any corporation in which the Company may hold stock,
and at any such meeting shall possess and may exercise any and all the rights
and powers incident to the ownership of such stock, and which as the owner
thereof, the Company might have possessed and exercised. The Board of Directors
or the Executive Committee, by resolution, from time to time may confer like
powers upon any other person or persons.
SECTION 2 - WAIVERS AND CONSENTS. Unless otherwise ordered by
the Board of Directors, the Chief Executive Officer or the President of the
Company or in his or their absence, any Vice President, shall have full power
and authority on behalf of the Company to waive notice of any meeting of
stockholders of any corporation in which the Company may hold stock, and to
authorize or approve and consent in writing to any action by any such
corporation to the same extent and with the same force and effect as an
individual stockholder of such corporation.
ARTICLE VII
FISCAL YEAR
SECTION 1. The fiscal year of the Company shall begin on
October first of each year.
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ARTICLE VIII
SEAL
SECTION 1. The seal of the Company shall be similar to the
impression contained in the margin opposite hereto. It may at any time be
changed by resolution of the Board of Directors.
ARTICLE IX
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND
AGENTS
SECTION 1. Each person who is a party or is threatened to be
made a party, either as plaintiff, defendant, respondent, or otherwise, to any
action, suit, or proceeding, whether civil, criminal, administrative, regulatory
or investigative (a "Proceeding"), based upon, arising from, relating to, or by
reason of the fact that such person, or a person of whom such person is the
legal representative, is or was a director or officer of the Company, or is or
was serving at the request of the Company as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation or
non-profit corporation, cooperative, partnership, joint venture, trust, or other
incorporated or unincorporated enterprise, or any employee benefit plan or trust
(each, a "Company Affiliate"), shall be indemnified and held harmless by the
Company to the fullest extent authorized by the NJBCA, as the same exists on the
date of the adoption of this Bylaw [March 12, 1997] or as may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification rights than the
NJBCA permitted the Company to provide prior to such amendment), against any and
all expenses, liability, and loss (including, without limitation, investigation
expenses and expert witnesses' and attorneys' retainer, fees and expenses,
judgments, penalties, fines, and amounts paid or to be paid in settlement)
actually incurred by such person in connection therewith; provided, however,
that, except for Proceedings seeking to enforce rights under this Bylaw, the
Company shall indemnify any such person seeking to enforce such
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rights in connection with a Proceeding (or part thereof) initiated by such
person only if such Proceeding (or part thereof) was authorized by a majority
vote of the Board of Directors. The right to indemnification conferred in this
Article IX shall be a contract right and shall include the right to be paid by
the Company for expenses to be incurred in defending or prosecuting any such
Proceeding in advance of its final disposition.
SECTION 2. The right to indemnification and the payment of
expenses incurred in defending a Proceeding in advance of its final disposition
conferred in this Article IX shall not be exclusive of any other right which any
person may be entitled under any statute, provision of the Restated Certificate
of Incorporation, or Bylaw, an agreement, a resolution of shareholders or
directors, or otherwise both as to action in such person's official capacity and
as to action in another capacity while holding such office.
SECTION 3. The Company may purchase and maintain insurance or
furnish similar protection on behalf of any person who is a director, officer,
employee, or agent of the Company or who, while a director, officer, employee,
or agent of the Company, is serving at the request of the Company as a director,
officer, partner, trustee, employee, or agent of a Company Affiliate, against
any liability asserted against and incurred by such director, officer, employee,
or agent in such capacity or arising out of such director's, officer's,
employee's, or agent's status as such, whether or not the Company would have the
power to indemnify such director, officer, employee, or agent against such
liability under the NJBCA.
SECTION 4. The Board of Directors, or, if so authorized by the
Board of Directors and as it relates to the employees or agents of the Company,
one or more officers of the Company, may indemnify and advance expenses to
directors, officers, employees or agents of the Company on such terms and
conditions as the Board of Directors or any such officer or officers, as
applicable, deem appropriate under the circumstances.
SECTION 5. Anything in this Article IX to the contrary
notwithstanding, no elimination of this Bylaw and no amendment of this Bylaw
adversely affecting the right of
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any person to indemnification or advancement of expenses hereunder shall be
effective until the sixtieth day following notice to such indemnified person of
such action, and no elimination of or amendment to this Bylaw shall deprive any
such person of such person's rights hereunder arising out of alleged or actual
occurrences, acts, or failures to act which had their origin prior to such
sixtieth day.
SECTION 6. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article IX shall, unless otherwise
provided when authorized, continue as to a person who has ceased to be a
director, officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of such a person.
ARTICLE X
AMENDMENTS
SECTION 1. These By-Laws may be amended or repealed (i) by
action of a majority of the Board of Directors at any regular or special meeting
of the Board of Directors, provided notice of such alteration, amendment, or
repeal shall be given in the notice of any such meeting, or (ii) except as
otherwise provided in Paragraphs 6, 7, 8, and 9 of the Certificate of
Incorporation of the Corporation, by action of the holders of a majority of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for this purpose as one
class.
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