Jerry F. Perkins Jr. is the General Counsel and
Secretary of the Registrant and, as a result of such relationship, could be deemed to have a substantial interest in the Registrant. In addition, Mr. Perkins holds common stock of the Registrant and performance share units and stock
appreciation rights with respect to common stock of the Registrant.
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Item 6
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Indemnification of Directors and Officers
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Section 14A:3-5 of the New Jersey Business
Corporation Act (the “NJBCA”) empowers a New Jersey corporation to indemnify present and former directors, officers, employees or agents of the corporation and certain other specified persons (each an “Indemnitee”). For
proceedings involving the Indemnitee in his capacity as a director, officer, employee or agent of the corporation, indemnification against expenses and liabilities may be made so long as the Indemnitee acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the corporation. In criminal proceedings, the Indemnitee must further have had no reasonable cause to believe his conduct was unlawful. In proceedings by or in the right of the
corporation, the corporation may indemnify the Indemnitee for expenses so long as the Indemnitee is not found liable to the corporation (in which case, indemnification may only be made to the extent that the court in which the action was brought
determines that indemnification is proper). Corporations shall indemnify Indemnitees to the extent the Indemnitee is successful on the merits or otherwise of the proceeding or in defense of any claim or matter therein. Unless indemnification is
ordered by a court, it shall generally be made only when the corporation’s Board of Directors (or shareholders if the corporation’s charter, bylaws or Board resolution so directs) determines that the applicable standards of conduct have
been met by the Indemnitee. The NJBCA further provides that additional indemnification may be provided to an Indemnitee pursuant to a corporation’s charter, bylaws, agreement, shareholder vote or otherwise, unless a final adjudication of the
matter establishes that the Indemnitee’s acts or omissions were in breach of his duty of loyalty to the corporation or its shareholders, were not in good faith or involved a knowing violation of law or resulted in receipt by the Indemnitee of
an improper personal benefit. Corporations may also limit the indemnification provided to Indemnitees pursuant to the NJBCA in their charter, bylaws, Board or shareholder resolutions, an agreement or other proper corporate action. Corporations may
also purchase indemnification insurance for their Indemnitees. The Company has purchased such insurance on behalf of its directors and officers.
Article
IX of the Company’s Restated Certificate of Incorporation provides that no director or officer shall be liable to the Company or any of its shareholders for monetary damages for breach of any duty owed as a director or officer to the Company or
any of its shareholders, except to the extent that such exemption from liability or limitation thereof is not permitted under the NJBCA.
Article IV of
the By-Laws of the Company further provides that the Company shall indemnify the follows persons to the fullest extent permitted by the NJBCA:
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(i)
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any person who is or was a director, officer, employee or agent of the Company;
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(ii)
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any person who is or was a director, officer, employee or agent of any constituent corporation absorbed by the Company in a consolidation or merger to the extent that the (A) the constituent corporation was
obligated to indemnify such person at the effective date of the merger or (B) the claim or potential claim of such person for indemnification was expressly disclosed to the Company and the Company agreed to such payments in the operative merger
documents;
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(iii)
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any person who is or was serving at the request of the Company in any partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprises; and
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(iv)
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the legal representative of any of the foregoing persons (a “Corporate Agent”).
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The Company shall
not provide indemnification (i) to any bank, trust company, insurance company, partnership or other entity, or any director, officer, employee or agent thereof or (ii) to any other person who is not a director, officer or employee of the
Company, in respect of any service by such person or entity, whether at the request of the Company or by agreement therewith, as investment advisor, actuary, custodian, trustee, fiduciary or consultant to any employee benefit plan.
To the extent that any right of indemnification granted under the By-Laws requires a determination that a Corporate Agent shall have been successful on the
merits or otherwise in any Proceeding (as hereinafter defined) or in defense of any claim, issue or matter therein, the Corporate Agent shall be deemed to have been “successful” if, without any settlement having been made by the Corporate
Agent, (i) such Proceeding shall have been dismissed or otherwise terminated or abandoned without any judgment or order having been entered against the Corporate Agent, (ii) such claim, issue or other matter therein shall have been
dismissed or otherwise eliminated or abandoned as against the Corporate Agent, or (iii) with respect to any threatened Proceeding, the Proceeding shall have been abandoned or there shall have been a failure for any reason to institute the
Proceeding within a reasonable time after the same shall have been threatened or after any inquiry or investigation that could have led to any such Proceeding shall have been commenced. The Board of Directors or any authorized committee thereof
shall have the right to determine what constitutes a “reasonable time” or an “abandonment” for purposes of this paragraph, and any such determination shall be conclusive and final.
To the extent that any right of indemnification granted under the By-Laws requires a determination that the Corporate Agent has been involved in a Proceeding
by reason of his or her being or having been a Corporate Agent, the Corporate Agent shall be deemed to have been so involved if the Proceeding involves action allegedly taken by the Corporate Agent for the benefit of the Company or in the
performance of his or her duties or the course of his or her employment with the Company.
For purposes of the By-Laws, “Proceeding” is defined
as any pending, threatened or completed civil, criminal, administrative or arbitrative action, suit or proceeding, and any appeal therein and any inquiry or investigation which could lead to such action, suit or proceeding.
The indemnification rights described above are not exclusive of any other rights to which a Corporate Agent may be entitled. Any amendment, modification,
alteration or repeal of Article IV that in any way adversely affects or eliminates any indemnification right may only be prospective and shall not in any way adversely affect or eliminate an indemnification right with respect to any actual or
alleged state of facts, occurrence, action or omission then or previously existing, or any action, suit or proceeding previously or thereafter brought or threatened based in whole or in part upon any such actual or alleged state of facts,
occurrence, action or omission.