EMCORE Corp. 8-K EX-10.1 Outside Directors Cash Compensation Plan


    
      
        

      

    

    EX-10.1

     

    EMCORE
      CORPORATION

     

    OUTSIDE
      DIRECTORS CASH COMPENSATION
      PLAN

     

    ARTICLE
      1.  ESTABLISHMENT,
      OBJECTIVES AND DURATION

     

    1.1  ESTABLISHMENT
      OF THE PLAN. EMCORE Corporation, a New Jersey corporation, has adopted this
      “EMCORE Corporation Outside Directors Cash Compensation Plan” (the “Plan”) to
      provide for the payment of cash compensation to non-employee directors to
      supplement EMCORE’s existing Directors’ Stock Award Plan. This Plan will become
      effective as of October 20, 2005 (the “Effective Date”) and will remain in
      effect as provided in Section 1.3 hereof. 

     

    1.2  PLAN
      OBJECTIVES. The objectives of the Plan are to give the Company an advantage
      in
      attracting and retaining Outside Directors. 

     

    1.3  DURATION
      OF THE PLAN. The Plan will remain in effect until the Board of Directors
      terminates it pursuant to Section 7.1.

     

    ARTICLE
      2.  DEFINITIONS

     

    Whenever
      used in the Plan, the following terms will have the meanings set forth below,
      and when the meaning is intended, the initial letter of the word will be
      capitalized:

     

    “ACCOUNT”
      means an Outside Director’s Interest Account.

     

    “AFFILIATES”
      means, with respect to any person, any other person that, directly or
      indirectly, is in control of, is controlled by, or is under common control
      with,
      the first person.

     

    “BENEFICIARY”
      means the person entitled under Section 6.5 to receive payment of the balance
      remaining in an Outside Director’s Account in case the Outside Director dies
      before the entire balance in the Account has been paid.

     

    “BOARD”
      or “BOARD OF DIRECTORS” means the Board of Directors of the
      Company.

     

    "CHANGE
      OF CONTROL " means the occurrence of any of the following events:

     

    (a)
       any
      person or Group acquires ownership of the Company’s stock that, together with
      stock held by such person or Group, constitutes more than 50% of the total
      fair
      market value or total voting power of the Company’s stock (including an increase
      in the percentage of stock owned by any person or Group as a result of a
      transaction in which the Company acquires its stock in exchange for property,
      provided that the acquisition of additional stock by any person or Group deemed
      to own more than 50% of the total fair market value or total voting power of
      the
      Company’s stock on May 1, 2005, shall not constitute a Change of Control);
      or

     

    (b) 
      any
      person or Group acquires (or has acquired during the 12-month period ending
      on
      the date of the most recent acquisition by such person or Group) ownership
      of
      Company stock possessing 35% or more of the total voting power of the Company’s
      stock; or

     

    (c)
       a
      majority of the members of the Company’s Board is replaced during any 12-month
      period by directors whose appointment or election is not endorsed by a majority
      of the members of the Board prior to the date of the appointment or election;
      or

     

    (d)
       any
      person or Group acquires (or has acquired during the 12-month period ending
      on
      the date of the most recent acquisition by such person or Group) assets from
      the
      Company that have a total Gross Fair Market Value equal to 40% or more of the
      total Gross Fair Market Value of all Company assets immediately prior to such
      acquisition or acquisitions, provided that there is no Change of Control when
      the Company’s assets are transferred to:

     

    (i)
      a
      shareholder of the Company (immediately before the asset transfer) in exchange
      for or with respect to Company stock;

     

    (ii)
      an
      entity, 50% or more of the total value or voting power of which is owned,
      directly or indirectly, by the Company;

     

    (iii)
      a
      person or Group that owns, directly or indirectly, 50% or more of the total
      value or voting power of all outstanding Company stock; or

     

    (iv)
      an
      entity, at least 50% of the total value or voting power of which is owned,
      directly or indirectly, by a person described in paragraph (iii).

     

    For
      purposes of this paragraph (d), a person's status is determined immediately
      after the transfer of the assets. For example, a transfer to a corporation
      in
      which the Company has no ownership interest before the transaction, but which
      is
      a majority-owned subsidiary of the Company after the transaction, is not a
      Change of Control.

     

    “CODE”
      means the Internal Revenue Code of 1986, as amended from time to time, or any
      successor to it.

     

    “COMMITTEE
      MEETING FEE” means the fee established by the Board in accordance with Article 5
      and paid to an Outside Director for each attendance at a meeting of a Board
      committee (including telephonic meetings but excluding execution of unanimous
      written consents).

     

    “COMPANY”
      means EMCORE Corporation, a New Jersey corporation, and any successor thereto
      as
      provided in Section 7.3.

     

    “DEFERRAL
      ELECTION” has the meaning ascribed to it in Section 6.1. 

     

    “DIRECTOR”
      means any individual who is a member of the Board of Directors.

     

    “DISABILITY”
      means the individual is unable to engage in any substantial gainful activity
      by
      reason of any medically determinable physical or mental impairment which can
      be
      expected to result in death or can be expected to last for a continuous period
      of not less than 12 months.

     

    “EFFECTIVE
      DATE” has the meaning ascribed to it in Section 1.1. 

     

    “EXCHANGE
      ACT” means the Securities Exchange Act of 1934, as amended from time to time, or
      any successor to it.

     

    "GROSS
      FAIR MARKET VALUE " means the value of Company assets determined without regard
      to any liabilities associated with such Company assets.

     

    "GROUP"
      means persons acting together for the purpose of acquiring Company stock and
      includes owners of a corporation that enters into a merger, consolidation,
      purchase or acquisition of stock, or similar business transaction with the
      Company. If a person owns stock in both the Company and another corporation
      that
      enter into a merger, consolidation purchase or acquisition of stock, or similar
      transaction, such person is considered to be part of a Group only with respect
      to ownership prior to the merger or other transaction giving rise to the change
      and not with respect to the ownership interest in the other corporation. Persons
      will not be considered to be acting as a Group solely because they purchase
      assets of the same corporation at the same time, or as a result of the same
      public offering.

     

    “INTEREST
      ACCOUNT” has the meaning ascribed to it in Section 6.3. 

     

    “MEETING
      FEE” means the fee established by the Board in accordance with Article 5 and
      paid to an Outside Director for each attendance at a meeting of the Board of
      Directors (including telephonic meetings but excluding execution of unanimous
      written consents).

     

    “OUTSIDE
      DIRECTOR” means a Director who, at the time in question, is not an employee of
      the Company or any of its Affiliates.

     

    “PLAN”
      has the meaning ascribed to it in Section 1.1. 

     

    “PLAN
      YEAR” means the 12-month period beginning on October 1 and ending on the next
      following September 30.

     

    “TERMINATION
      DATE” means the date on which an Outside Director ceases to be a
      Director.

     

    ARTICLE
      3.  ADMINISTRATION

     

    3.1  THE
      BOARD
      OF DIRECTORS. The Plan will be administered by the Board of Directors. The
      Board
      of Directors will act by a majority of its members at the time in office and
      eligible to vote on any particular matter, and may act either by a vote at
      a
      meeting or in writing without a meeting. 

     

    3.2  AUTHORITY
      OF THE BOARD OF DIRECTORS. Except as limited by law and subject to the
      provisions herein, the Board of Directors has full power to: construe and
      interpret the Plan and any agreement or instrument entered into under the Plan;
      establish, amend or waive rules and regulations for the Plan’s administration;
      and amend the terms and conditions of the Plan. Further, the Board of Directors
      will make all other determinations which may be necessary or advisable for
      the
      administration of the Plan. As permitted by law and consistent with Section
      3.1,
      the Board of Directors may delegate some or all of its authority under this
      Plan.

     

    3.3  DECISIONS
      BINDING. All determinations and decisions made by the Board of Directors
      pursuant to the provisions of the Plan will be final, conclusive and binding
      on
      all persons, including the Company, its stockholders, all Affiliates, Outside
      Directors and their estates and beneficiaries. 

     

    ARTICLE
      4.  ELIGIBILITY

     

    Each
      Outside Director of the Board during a Plan Year will participate in the Plan
      for that year.

     

    ARTICLE
      5.  ANNUAL
      RETAINER AND RESTRICTED UNITS

     

    Each
      Outside Director will be entitled to receive a Meeting Fee, in the amount
      determined from time to time by the Board, for each meeting he or she attends
      (including telephonic meetings but excluding execution of unanimous written
      consents) of the Board of Directors. In addition, each Outside Director will
      be
      entitled to receive a Committee Meeting Fee, in the amount determined from
      time
      to time by the Board, for each meeting he or she attends (including telephonic
      meetings but excluding execution of unanimous written consents) of a Board
      committee. Until changed by resolution of the Board of Directors, the Meeting
      Fee will be $5,000 and the Committee Meeting Fee will be $3,000; provided,
      however, that the Meeting Fee for special telephonic meetings (i.e.,
      Board
      meetings that are not regularly scheduled and in which Directors typically
      participate telephonically) will be $1,000 and the Committee Meeting Fee for
      each such telephonic meeting shall be $600. Any Outside Director who is the
      Chairman of a committee shall receive an additional $1,000 for each meeting
      of
      the committee he or she chairs and an additional $200 for each special
      telephonic meeting of such committee. Unless the Outside Director has made
      a
      Deferral Election with respect to them, Meeting Fees and Committee Meeting
      Fees
      will be paid within 45 days after the relevant meeting. 

     

    ARTICLE
      6.  DEFERRAL

     

    6.1  DEFERRAL
      ELECTION. Any Outside Director may elect to defer all or a portion of the
      compensation payable to him or her under Article 5 for the Plan Year by filing
      with the Secretary of the Company a written notice to that effect on the
      Deferral Election Form attached hereto as Exhibit A (a “Deferral Election”). An
      Outside Director without a Deferral Election in effect may elect to defer all
      or
      a portion of the compensation payable under Article 5: (a) with respect
      to
      any compensation payable under Article 5 for any Plan Year by filing a Deferral
      Election on or before the September 30th preceding the Plan Year; and (b) with
      respect to any compensation payable under Article 5 for any portion of a Plan
      Year following the date on which the Director becomes an Outside Director by
      filing a Deferral Election within thirty days following that date. A Deferral
      Election may not be revoked or modified with respect to compensation payable
      for
      any Plan Year for which it is effective and the Deferral Election, unless
      terminated or modified as described below, will apply to compensation payable
      under Article 5 with respect to each subsequent Plan Year. An Outside Director
      may terminate or modify his or her current Deferral Election for any subsequent
      Plan Year by filing a new Deferral Election on or before September 30 of the
      then-current Plan Year. An effective Deferral Election will also terminate
      on
      the date a Director ceases to be an Outside Director. 

     

    6.2  ACCOUNT.
      At the time an Outside Director makes a Deferral Election under Section 6.1
      he
      or she must also designate the portion of the deferred compensation to be
      credited to an Interest Account. 

     

    6.3  INTEREST
      ACCOUNT. The amounts the Outside Director elects to defer to an Interest Account
      under Section 6.2 will be credited to that account as of the date the
      compensation would otherwise have been payable under Article 5. The amounts
      credited to the Interest Account will be credited as of the date the
      compensation would otherwise have been payable under Article 5 with interest,
      compounded monthly, until the amount credited to the Interest Account is paid
      to
      the Outside Director. The rate of interest credited under the previous sentence
      will be the prime rate of interest as reported by The
      Wall Street Journal
      for the
      second business day of each quarter on an annual basis.

     

    6.4  DISTRIBUTIONS.
      The value of an Outside Director’s Account will be distributed, or will begin to
      be distributed, to him or her or, in the event of his or her death, to his
      or
      her Beneficiary, following the earliest of: 

     

    (a)  the
      date
      specified by the Outside Director in his or her Deferral Election;

     

    (b)  the
      date
      the Outside Director ceases to be a Director, whether or not through termination
      due to retirement, death or Disability; and

     

    (c)  the
      date
      on which a Change of Control occurs. The amount payable to an Outside Director
      will equal the dollar amount credited to the Outside Director’s Interest
      Account. 

     

    An
      Outside Director’s Account will be paid to him or her in accordance with his or
      her Deferral Election. An Outside Director may change the payout form by filing
      an irrevocable election of a new payout form with the Secretary of the Company
      at least one year and one day before the due date of the first payment under
      this Article 6. An Outside Director may change such election upon written notice
      in a form acceptable to the Secretary of the Company or a separate plan
      administrator that may be appointed by the Board or its Compensation Committee,
      provided such change complies with the following: (i) the subsequent election
      does not take effect until at least 12 months after the date on which the
      election is made, and (ii) the first payment with respect to which such election
      is made be deferred for a period of not less than five years from the date
      such
      payment would otherwise have been made. 

    


    If
      an
      Outside Director fails to elect a payout form, his or her Account shall be
      paid
      in a single lump sum payment. 

     

    If
      an
      Outside Director elects to receive payment of his or her Account in
      installments, the payment period for the installments will not exceed ten years.
      The amount of each installment payment will equal the product of (a) the balance
      in the Outside Director’s Account on the date the payment is made multiplied by
      (b) a fraction, the numerator of which is one and the denominator of which
      is
      the number of unpaid remaining installments. The balance of the Account will
      be
      appropriately reduced to reflect any installment payments already made
      hereunder. Notwithstanding the foregoing, in the event of a Change of Control,
      the balance remaining in an Outside Director’s Account will be paid in a single
      lump sum payment within 30 days following the Change of Control. 

     

    If
      an
      Outside Director dies before he or she has received payment of all amounts
      due
      hereunder, the balance remaining in the Outside Director’s Account shall be
      distributed to his or her Beneficiary in a single lump sum payment following
      the
      Outside Director’s death.

     

    All
      single sum payments shall be made, and all installment payments shall commence,
      as soon as administratively feasible following the date that triggers
      distribution under this section; provided that the Board or its Compensation
      Committee may specify such additional rules regarding distributions and
      elections as it deems appropriate.

     

    6.5  BENEFICIARY.
      An Outside Director may designate, on the Beneficiary Designation form attached
      hereto as Exhibit B, any person to whom payments are to be made if the Outside
      Director dies before receiving payment of all amounts due hereunder. A
      Beneficiary Designation form becomes effective only after the signed form is
      filed with the Secretary of the Company while the Outside Director is alive,
      and
      will cancel any prior Beneficiary Designation form. If the Outside Director
      fails to designate a beneficiary or if all designated beneficiaries predecease
      the Outside Director, the Outside Director’s Beneficiary will be his or her
      estate.

     

    ARTICLE
      7.  MISCELLANEOUS

     

    7.1  MODIFICATION
      AND TERMINATION. The Board may at any time and from time to time, alter, amend,
      modify or terminate the Plan in whole or in part. 

     

    7.2  INDEMNIFICATION.
      Each person who is or has been a member of the Board will be indemnified and
      held harmless by the Company against and from any loss, cost, liability, or
      expense that may be imposed upon or reasonably incurred by that person in
      connection with or resulting from any claim, action, suit, or proceeding to
      which that person may be a party or in which that person may be involved by
      reason of any action taken or failure to act under the Plan and against and
      from
      any and all amounts paid by that person in a settlement approved by the Company,
      or paid by that person in satisfaction of any judgment in any such action,
      suit,
      or proceeding against that person, provided he or she gives the Company an
      opportunity, at its own expense, to handle and defend the action, suit or
      proceeding before that person undertakes to handle and defend it. The foregoing
      right of indemnification will not be exclusive of any other rights of
      indemnification to which an individual may be entitled under the Company’s
      Restated Certificate of Incorporation or By-Laws, as a matter of law, or
      otherwise, or any power that the Company may have to indemnify him or her or
      hold him or her harmless.

     

    7.3  SUCCESSORS.
      All obligations of the Company under the Plan with respect to a given Plan
      Year
      will be binding on any successor to the Company, whether the existence of the
      successor is the result of a direct or indirect purchase of all or substantially
      all of the business and/or assets of the Company, or a merger, consolidation,
      or
      otherwise.

     

    7.4  RESERVATION
      OF RIGHTS. Nothing in this Plan or in any award agreement granted hereunder
      will
      be construed to limit in any way the Board’s right to remove an Outside Director
      from the Board of Directors. 

     

    ARTICLE
      8.  LEGAL
      CONSTRUCTION

     

    8.1  GENDER
      AND NUMBER. Except where otherwise indicated by the context, any masculine
      term
      used herein will also include the feminine; the plural will include the singular
      and the singular will include the plural. 

     

    8.2  SEVERABILITY.
      If any provision of the Plan is held illegal or invalid for any reason, the
      illegality or invalidity will not affect the remaining parts of the Plan, and
      the Plan will be construed and enforced as if the illegal or invalid provision
      had not been included.

     

    8.3  REQUIREMENTS
      OF LAW. The issuance of payments under the Plan will be subject to all
      applicable laws, rules, and regulations, and to any approvals required by any
      governmental agencies or national securities exchanges. 

     

    8.4  UNFUNDED
      STATUS OF THE PLAN. The Plan is intended to constitute an “unfunded” plan. With
      respect to any payments not yet made to an Outside Director by the Company,
      nothing contained herein will give any rights to an Outside Director that are
      greater than those of a general creditor of the Company.

     

    8.5  GOVERNING
      LAW. The Plan will be construed in accordance with and governed by the laws
      of
      the State of New Jersey, determined without regard to the application of the
      principles of conflicts of law of New Jersey or of any other
      jurisdiction.

     

    8.6 NONTRANSFERABILITY.
      An Outside Director’s Account may not be sold, transferred, pledged, assigned,
      or otherwise alienated or hypothecated, other than by will or by the laws of
      descent and distribution, or pursuant to a domestic relations order (as defined
      in Code section 414(p)). All rights with respect to Accounts will be available
      during the Outside Director’s lifetime only to the Outside Director or the
      Outside Director’s guardian or legal representative. The Board of Directors may,
      in its discretion, require an Outside Director’s guardian or legal
      representative to supply it with evidence the Board of Directors deems necessary
      to establish the authority of the guardian or legal representative to act on
      behalf of the Outside Director.

    


    8.7 CODE
      SECTION 409A. It is also the intention of the Company that all income tax
      liability on payments made under the Plan be deferred until the Outside Director
      actually receives such payment in accordance with the requirements of Code
      Section 409A for nonqualified deferred compensation plans, to the extent Code
      Section 409A applies to the Plan. Therefore, if any Plan provision is found
      not
      to be in compliance with any applicable requirements of Code Section 409A,
      that
      provision shall be deemed amended so that the Plan does so comply to the extent
      permitted by law and deemed advisable by the Company’s Board of Directors or the
      Compensation Committee of the Board, and in all events the Plan shall be
      construed in favor of its meeting the requirements for deferral of compensation
      under Code Section 409A. 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      EXHIBIT
        A 

       

      EMCORE
        CORPORATION

       

      OUTSIDE
        DIRECTORS CASH COMPENSATION PLAN

       

      DEFERRAL
        ELECTION

       

      As
        of
        __________________, 20__, the individual whose name appears below, who is
        an
        Outside Director of the Company, hereby elects to defer all or a portion
        of the
        compensation payable to him or her under the terms of the EMCORE Corporation
        Outside Directors Cash Compensation Plan (the “Plan”). This Deferral Election
        will remain in full force and effect until the earlier of the date the Outside
        Director modifies or terminates it and the date the Director ceases to be
        an
        Outside Director. Any term capitalized herein but not defined will have the
        meaning set forth in the Plan. This Deferral Election supersedes any prior
        Deferral Election and all such prior Deferred Elections shall be null and
        void.

       

      1.  Deferral
        Election. In accordance with the terms of the Plan, the Outside Director
        hereby
        elects to defer:

       

      ____%
        of
        the Meeting Fee(s)

       

      ____%
        of
        the Committee Meeting Fee(s)

       

      payable
        to the Outside Director for Plan years beginning after the date this election
        is
        filed with the Secretary of EMCORE Corporation. (Enter in each blank any
        whole
        percentage less than or equal to 100%.).

       

      2.  Accounts.
        The Outside Director hereby elects to have all of the amounts deferred under
        item number 1 above credited to the Interest Account.

       

      3.  Timing
        of
        Payout. Subject to the terms of the Plan, the Outside Director hereby elects
        to
        have his or her Account distributed as soon as administratively feasible
        following _______________________ (insert N/A if Outside Director wishes
        to
        receive Account only after the earlier of (a) the date he or she ceases to
        be a
        Director and (b) the date on which a Change of Control occurs).

       

      4.  Form
        of
        Payout. In accordance with the terms of the Plan, the Outside Director hereby
        elects the following payout form for his or her Account (elect
        one):

       

      _____ single
        lump sum payment, or

       

      
        	 	
                _____

              	
                installments
                  over ___ years (not to exceed 10 years) payable (elect
                  one):

              


      

       

      
        	 	
                _____

              	
                quarterly,

              


      

       

      _____ semi-annually,
        or 

       

      _____ annually

       

      IN
        WITNESS WHEREOF, the Outside Director has duly executed this Deferral Election
        as of the date first written above.

       

      Outside
        Director’s Signature

       

      Outside
        Director’s Name (please print)

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    


    
      EXHIBIT
        B 

       

      EMCORE
        CORPORATION

       

      OUTSIDE
        DIRECTORS CASH COMPENSATION PLAN

       

      BENEFICIARY
        DESIGNATION

       

      In
        accordance with the terms of the EMCORE Corporation Outside Directors Cash
        Compensation Plan (the “Plan”), the individual whose name appears below, who is
        an Outside Director of EMCORE Corporation (the “Company”), hereby designates a
        beneficiary or beneficiaries, with respect to his or her Account (and any
        other
        amounts due to him or her) under the Plan.

       

      1.  Primary
        Beneficiary. The following person, or persons, are hereby designated as primary
        Beneficiary with respect to the percentage of the Outside Director’s unpaid
        Account (and any other amounts due to him or her) indicated for each
        person:

       

      Name:        

       

      Relationship:      

       

      Address:       

       

      Percent:       

       

       

      Name:        

       

      Relationship:      

       

      Address:       

       

      Percent:       

       

       

      Name:        

       

      Relationship:      

       

      Address:       

       

      Percent:       

       

      2.  Secondary
        Beneficiary. The following person, or persons, are hereby designated as
        secondary Beneficiary with respect to the percentage of the Outside Director’s
        unpaid Account (and any other amounts due to him or her) indicated for each
        person:

       

      Name:        

       

      Relationship:      

       

      Address:       

       

      Percent:       

       

       

      Name:        

       

      Relationship:      

       

      Address:       

       

      
      

      Percent:       

       

       

      Name:        

       

      Relationship:      

       

      Address:       

       

      Percent:       

       

      IN
        WITNESS WHEREOF, the Outside Director has duly executed this Beneficiary
        Designation as of ________________, 20__ .

       

      Outside
        Director’s Signature 

       

      Outside
        Director’s Name (please print)