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
Date of Report (Date of earliest event reported): January 14, 2016
THE CHUBB CORPORATION
(Exact name of registrant as specified in its charter)
| New Jersey | 1-8661 | 13-2595722 | ||
| (State or other jurisdiction of Incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
15 Mountain View Road
Warren, New Jersey 07059
(Address of principal executive offices)
Registrant’s telephone number, including area code: (908) 903-2000
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 (see General Instruction A.2. below):
| ¨ | 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-(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. Entry into a Material Definitive Agreement
The information set forth in Item 2.01 below is incorporated herein by reference.
In connection with the completion of the Secondary Merger described in Item 2.01, The Chubb Corporation, a New Jersey corporation (“Chubb Corp”), entered into the following supplemental indentures to effectuate the assumption of Chubb Corp’s rights, duties and obligations by ACE INA Holdings Inc. (“ACE INA”), a Delaware corporation and a wholly owned subsidiary of Chubb Limited (formerly ACE Limited) (“ACE”), and ACE’s guarantee of ACE INA’s payment obligations, with respect to the securities identified below:
a) Pursuant to a First Supplemental Indenture (“First Supplemental Indenture”), dated as of January 15, 2016, among ACE, ACE INA, Chubb Corp and The Bank of New York Mellon Trust Company, N.A. (as successor to JPMorgan Trust Company N.A., as successor to Bank One Trust Company, N.A. (formerly The First National Bank of Chicago)), as trustee, ACE INA assumed Chubb Corp’s rights, duties and obligations under the Chubb Corp Senior Indenture, dated as of October 25, 1989, between Chubb Corp and The First National Bank of Chicago, as trustee (the “Chubb Corp Senior Indenture”), under which $600,000,000 aggregate principal amount of 5.75% notes due May 15, 2018 (the “5.75% Notes due 2018”), $100,000,000 aggregate principal amount of 6.60% debentures due August 15, 2018 (the “6.60% Debentures due 2018”), $200,000,000 aggregate principal amount of 6.80% debentures due November 15, 2031 (the “6.80% Debentures due 2031”), $800,000,000 aggregate principal amount of 6% notes due May 11, 2037 (the “6% Notes due 2037”) and $600,000,000 aggregate principal amount of 6.50% notes due May 15, 2038 (the “6.50% Notes due 2038”) are outstanding. Also pursuant to the First Supplemental Indenture, ACE guaranteed ACE INA’s due and punctual payment of principal and premium of, interest on, and additional amounts with respect to, the foregoing securities issued by Chubb Corp under the Chubb Corp Senior Indenture.
b) Pursuant to a Second Supplemental Indenture (“Second Supplemental Indenture”), dated as of January 15, 2016, among ACE, ACE INA, Chubb Corp and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Subordinated Trustee”), ACE INA assumed Chubb Corp’s rights, duties and obligations under the Chubb Corp Junior Subordinated Indenture, dated as of March 29, 2007 (the “Chubb Corp Junior Subordinated Indenture”), between Chubb Corp and the Subordinated Trustee, as supplemented by the First Supplemental Indenture thereto, dated as of March 29, 2007, between Chubb Corp and the Subordinated Trustee, pursuant to which $1,000,000,000 aggregate principal amount of 6.375% directly issued subordinated capital securities due March 29, 2067 (the “6.375% DISCs”) are outstanding. Also pursuant to the Second Supplemental Indenture, ACE guaranteed, on a subordinated basis (as described in the Second Supplemental Indenture) ACE INA’s due and punctual payment of principal and premium of, interest on, and additional amounts with respect to the foregoing securities issued by Chubb Corp under the Chubb Corp Junior Subordinated Indenture. ACE’s guarantee with respect to the 6.375% DISCs is subordinate to ACE’s senior indebtedness (as defined in the Second Supplemental Indenture), including ACE’s guarantee with respect to, the securities described above as outstanding under the Chubb Corp Senior Indenture and the outstanding senior indebtedness of ACE INA, and is pari passu with ACE’s guarantee of ACE INA’s 9.7% Junior Subordinated Deferrable Interest Debentures due 2030.
The foregoing descriptions are qualified in their entirety by the complete terms and conditions of: the First Supplemental Indenture, the Second Supplemental Indenture, the Chubb Corp Senior Indenture, the Chubb Corp Junior Subordinated Indenture, the First Supplemental Indenture, dated as of March 29, 2007, to the Chubb Corp Junior Subordinated Indenture, the form of note for the 5.75% Notes due 2018, the form of debenture for the 6.60% Debentures due 2018, the form of debenture for the 6.80% Debentures due 2031, the form of note for the 6% Notes due 2037, the form of note for the 6.50% Notes due 2038 and the form of debenture for the 6.375% DISCs, which are incorporated by reference as Exhibits 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10 and 4.11, respectively, hereto and incorporated by reference into this Item 2.03.
Item 1.02. Termination of a Material Definitive Agreement
The information set forth in Item 2.01 below is incorporated herein by reference.
Effective as of January 14, 2016, in connection with the completion of the Merger described in Item 2.01, Chubb Corp terminated its Five Year Revolving Credit Agreement, dated as of September 24, 2012, by and among Chubb Corp, the banks listed therein, Deutsche Bank Securities Inc. and Citigroup Global Markets Inc. as Joint Lead Arrangers and Joint Book Runners, Citibank, N.A. as Syndication Agent, The Bank of New York Mellon, JPMorgan Chase Bank, N.A. and Wells Fargo Bank, N.A. as Documentation Agents and Deutsche Bank AG New York Branch as Administrative Agent.
Item 2.01. Completion of Acquisition or Disposition of Assets
Effective as of 5:30 p.m. EST on January 14, 2016 (the “Effective Time”), pursuant to the terms of the Agreement and Plan of Merger, dated as of June 30, 2015, among ACE, Chubb Corp and Merger Sub (the “Merger Agreement”), Merger Sub merged with and into Chubb Corp, with Chubb Corp continuing as the surviving corporation and a wholly owned subsidiary of ACE (the “Merger”). After the completion of the Merger, and effective as of January 15, 2016, Chubb Corp merged with and into ACE INA, with ACE INA surviving as a wholly owned subsidiary of ACE (the “Secondary Merger”).
Pursuant to the terms and conditions of the Merger Agreement, at the Effective Time, each outstanding share of Chubb Corp common stock, par value $1.00 per share (“Chubb Corp Common Stock”) (other than certain excepted shares as described in the Merger Agreement) was converted into the right to receive (i) 0.6019 of a common share of ACE, par value CHF 24.15 per share (“ACE Common Share”) and (ii) $62.93 in cash, with cash payable in lieu of fractional shares.
Based on the closing price of $111.02 per ACE Common Share on the New York Stock Exchange (“NYSE”) on January 14, 2016, the aggregate consideration paid to the former holders of Chubb Corp Common Stock in connection with the Merger was approximately $29.5 billion, including approximately $15.2 billion in ACE Common Shares and approximately $14.3 billion in cash.
Pursuant to the terms and conditions of the Merger Agreement, at the Effective Time, each Chubb Corp stock option, restricted stock unit award (including each performance-based restricted stock unit award) and deferred stock unit award outstanding immediately prior to the Effective Time was automatically converted into a stock option, restricted stock unit award or deferred stock unit award, as applicable, relating to ACE Common Shares, the number of which was determined in accordance with the adjustment mechanism set forth in the Merger Agreement, on the same terms and conditions as were applicable immediately prior to the Effective Time under such Chubb Corp equity award.
The representations, warranties and covenants of each of ACE, Merger Sub and Chubb Corp contained in the Merger Agreement have been made solely for the benefit of the parties to the Merger Agreement. In addition, such representations, warranties and covenants (i) have been made only for purposes of the Merger Agreement, (ii) have been qualified by confidential disclosures made by the parties in connection with the Merger Agreement, (iii) are subject to materiality qualifications contained in the Merger Agreement that may differ from what may be viewed as material by investors, (iv) were made only as of the date of the Merger Agreement or such other date as is specified in the Merger Agreement and (v) have been included in the Merger Agreement for the purpose of allocating risk between the contracting parties rather than establishing matters as facts.
Accordingly, the Merger Agreement is incorporated into this filing only to provide investors with information regarding the terms of the Merger Agreement, and not to provide investors with any other factual information regarding the parties or their respective businesses. Investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the parties or any of their subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations and warranties may have changed after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the public disclosures by the parties. The Merger Agreement should not be read alone, but should instead be read in conjunction with the other information regarding the parties that is or will be contained in, or incorporated by reference into, the Forms 10-K, Forms 10-Q and other documents that ACE and Chubb Corp file with the SEC.
The foregoing description of the Merger Agreement and the Merger does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, incorporated by reference as Exhibit 2.1 hereto and incorporated herein by reference.
In connection with the completion of the Secondary Merger, pursuant to the terms of the Replacement Capital Covenant, dated as of March 29, 2007, by Chubb Corp in favor of the Covered Debtholders, as defined therein (the “Replacement Capital Covenant”), the Replacement Capital Covenant is incorporated by reference as Exhibit 99.1 hereto and incorporated herein by reference.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing
In connection with the completion of the Merger, on January 14, 2016, Chubb Corp notified the NYSE of the completion of the Merger and, at Chubb Corp’s request, the NYSE (i) suspended trading of Chubb Corp Common Stock on the NYSE and removed Chubb Corp Common Stock from listing on the NYSE as of the close of business on January 14, 2016 and (ii) filed with the SEC a notification of removal from listing and registration on Form 25 to report the delisting of the Chubb Corp Common Stock and to effect the deregistration of Chubb Corp Common Stock under Section 12(b) of the Securities Exchange Act of 1934 (“Exchange Act”).
Chubb Corp intends to file with the SEC, as promptly as practicable after the Effective Time, a certification on Form 15 with respect to the deregistration of Chubb Corp Common Stock under Section 12(g) of the Exchange Act and the suspension of Chubb Corp’s reporting obligations under Sections 13 and 15(d) of the Exchange Act.
Item 3.03. Material Modification to Rights of Security Holders
The information set forth in Item 2.01 above and Item 5.03 below is incorporated herein by reference.
As of the Effective Time, each holder of a certificate formerly representing any shares of Chubb Corp Common Stock or of book-entry shares of Chubb Corp Common Stock will no longer have any rights with respect to the shares, except for the right to receive the Merger Consideration as set forth in the Merger Agreement.
Item 5.01. Changes in Control of Registrant
The information set forth in Item 2.01 above is incorporated herein by reference.
As a result of the Merger, Chubb Corp became a wholly owned subsidiary of ACE. As a result of the Secondary Merger, Chubb Corp merged with and into ACE INA, which continued as a wholly owned subsidiary of ACE.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangement of Certain Officers
As of the Effective Time, pursuant to the Merger Agreement and in connection with the completion of the Merger (and not because of any disagreement with Chubb Corp), all members of the Chubb Corp Board of Directors as of immediately prior to the Effective Time (consisting of Zoë Baird Budinger, Sheila P. Burke, James I. Cash, Jr., John D. Finnegan, Timothy P. Flynn, Karen M. Hoguet, Lawrence W. Kellner, Martin G. McGuinn, Lawrence M. Small, Jess Søderberg, Daniel E. Somers, William C. Weldon, James M. Zimmerman and Alfred W. Zollar) ceased to be directors of Chubb Corp, and all executive officers of Chubb Corp as of immediately prior to the Effective Time (including the principal executive officer and president, John D. Finnegan, the principal financial officer, Richard G. Spiro, the principal accounting officer, John J. Kennedy, the principal operating officer, Paul J. Krump, and a named executive officer, Harold L. Morrison, Jr.) resigned as officers of Chubb Corp.
In connection with the Merger and pursuant to the Merger Agreement, from the Effective Time until the completion of the Secondary Merger, the directors and officers of Merger Sub served as the directors and officers of Chubb Corp.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
Pursuant to the Merger Agreement, as of the Effective Time, Chubb Corp’s Certificate of Incorporation and By-Laws were amended and restated in their entirety as set forth in Exhibit 3.1 and Exhibit 3.2, respectively, attached hereto and hereby incorporated by reference.
Upon the completion of the Secondary Merger, the Certificate of Incorporation and Bylaws of Chubb Corp ceased to be in effect by operation of law and the organizational documents of ACE INA (as successor to Chubb Corp by operation of law) remained the certificate of incorporation and bylaws of ACE INA.
The information regarding the Merger and the Merger Agreement set forth under Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03.
Item 9.01 Financial Statements and Exhibits
d) Exhibits
| Number |
Description | |
| 2.1 | Merger Agreement (incorporated by reference to Exhibit 2.1 to Chubb’s Current Report on Form 8-K filed on July 7, 2015) (File No. 001-08661) | |
| 3.1 | Amended and Restated Certificate of Incorporation of Chubb | |
| 3.2 | Amended and Restated By-Laws of Chubb | |
| 4.1 | First Supplemental Indenture (incorporated by reference to Exhibit 4.1 to ACE’s Current Report on Form 8-K filed on January 15, 2016) (File No. 001-11778) | |
| 4.2 | Second Supplemental Indenture (incorporated by reference to Exhibit 4.2 to ACE’s Current Report on Form 8-K filed on January 15, 2016) (File No. 001-11778) | |
| 4.3 | Chubb Corp Senior Indenture (incorporated by reference to Exhibit 4(a) to Chubb Corp’s Registration Statement on Form S-3 filed on October 27, 1989) (File No. 33-31796) | |
| 4.4 | Chubb Corp Junior Subordinated Indenture (incorporated by reference to Exhibit 4.1 to Chubb Corp’s Current Report on Form 8-K filed on March 30, 2007) (File No. 001-08661) | |
| 4.5 | First Supplemental Indenture to the Chubb Corp Junior Subordinated Indenture (incorporated by reference to Exhibit 4.2 to Chubb Corp’s Current Report on Form 8-K filed on March 30, 2007) (File No. 001-08661) | |
| 4.6 | Form of note for the 5.75% Notes due 2018 (incorporated by reference to Exhibit 4.1 to Chubb Corp’s Current Report on Form 8-K filed on May 6, 2008) (File No. 001-08661) | |
| 4.7 | Form of debenture for the 6.60% Debentures due 2018 (included in Exhibit 4.3) | |
| 4.8 | Form of debenture for the 6.80% Debentures due 2031 (included in Exhibit 4.3) | |
| 4.9 | Form of note for the 6% Notes due 2031 (incorporated by reference to Exhibit 4.1 to Chubb Corp’s Current Report on Form 8-K filed on May 11, 2007) (File No. 001-08661) | |
| 4.10 | Form of note for the 6.50% Notes due 2038 (incorporated by reference to Exhibit 4.2 to Chubb Corp’s Current Report on Form 8-K filed on May 6, 2008) (File No. 001-08661) | |
| 4.11 | Form of debenture for the 6.375% DISCs (incorporated by reference to Exhibit 4.3 to Chubb Corp’s Current Report on Form 8-K filed on March 30, 2007) (File No. 001-08661) | |
| 99.1 | Replacement Capital Covenant (incorporated by reference to Exhibit 99.1 to Chubb Corp’s Current Report on Form 8-K filed on March 30, 2007) (File No. 001-08661) | |
SIGNATURES
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.
| The Chubb Corporation By ACE INA Holdings Inc., as successor to The Chubb Corporation (Registrant) | ||
| By: | /s/ Kenneth Koreyva | |
| Name: Kenneth Koreyva | ||
| Title: Chief Financial Officer | ||
Date: January 15, 2016
EXHIBIT INDEX
| Number |
Description | |
| 2.1 | Merger Agreement (incorporated by reference to Exhibit 2.1 to Chubb’s Current Report on Form 8-K filed on July 7, 2015) (File No. 001-08661) | |
| 3.1 | Amended and Restated Certificate of Incorporation of Chubb | |
| 3.2 | Amended and Restated By-Laws of Chubb | |
| 4.1 | First Supplemental Indenture (incorporated by reference to Exhibit 4.1 to ACE’s Current Report on Form 8-K filed on January 15, 2016) (File No. 001-11778) | |
| 4.2 | Second Supplemental Indenture (incorporated by reference to Exhibit 4.2 to ACE’s Current Report on Form 8-K filed on January 15, 2016) (File No. 001-11778) | |
| 4.3 | Chubb Corp Senior Indenture (incorporated by reference to Exhibit 4(a) to Chubb Corp’s Registration Statement on Form S-3 filed on October 27, 1989) (File No. 33-31796)) | |
| 4.4 | Chubb Corp Junior Subordinated Indenture (incorporated by reference to Exhibit 4.1 to Chubb Corp’s Current Report on Form 8-K filed on March 30, 2007) (File No. 001-08661) | |
| 4.5 | First Supplemental Indenture to the Chubb Corp Junior Subordinated Indenture (incorporated by reference to Exhibit 4.2 to Chubb Corp’s Current Report on Form 8-K filed on March 30, 2007) (File No. 001-08661) | |
| 4.6 | Form of note for the 5.75% Notes due 2018 (incorporated by reference to Exhibit 4.1 to Chubb Corp’s Current Report on Form 8-K filed on May 6, 2008) (File No. 001-08661) | |
| 4.7 | Form of debenture for the 6.60% Debentures due 2018 (included in Exhibit 4.3) | |
| 4.8 | Form of debenture for the 6.80% Debentures due 2031 (included in Exhibit 4.3) | |
| 4.9 | Form of note for the 6% Notes due 2031 (incorporated by reference to Exhibit 4.1 to Chubb Corp’s Current Report on Form 8-K filed on May 11, 2007) (File No. 001-08661) | |
| 4.10 | Form of note for the 6.50% Notes due 2038 (incorporated by reference to Exhibit 4.2 to Chubb Corp’s Current Report on Form 8-K filed on May 6, 2008) (File No. 001-08661) | |
| 4.11 | Form of debenture for the 6.375% DISCs (incorporated by reference to Exhibit 4.3 to Chubb Corp’s Current Report on Form 8-K filed on March 30, 2007) (File No. 001-08661) | |
| 99.1 | Replacement Capital Covenant (incorporated by reference to Exhibit 99.1 to Chubb Corp’s Current Report on Form 8-K filed on March 30, 2007) (File No. 001-08661) | |
Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
THE CHUBB CORPORATION
THIS IS TO CERTIFY that The Chubb Corporation, a New Jersey Corporation under and by virtue of the provisions of Title 14A of the Revised Statutes of New Jersey and the several amendments thereof and supplements thereto, does hereby restate and integrate its Certificate of Incorporation, pursuant to Section 14A:9-5 of The New Jersey Business Corporation Act, as follows:
1. Name. The name of the corporation is The Chubb Corporation (the “Corporation”).
2. Purposes. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the New Jersey Business Corporation Act.
3. Number of Shares. The total number of shares of stock that the Corporation shall have authority to issue is 100, all of which shall be shares of Common Stock.
4. Address; Registered Office and Agent. The address of the Corporation’s registered office in the State of New Jersey is 820 Bear Tavern Road, West Trenton, New Jersey 08628. The name of its registered agent at such address is The Corporation Trust Company.
5. Number, Names, and Mailing Addresses of Directors. The number of directors constituting the current Board of Directors is two. The names and addresses of such directors are as follows:
| Name | Address | |
| Kenneth Koreyva | 1133 Avenue of the Americas, 44th Floor New York, New York 10036 | |
| Christopher J. Kearns | 1133 Avenue of the Americas, 44th Floor New York, New York 10036 | |
6. Limitation of Liability.
(a) To the fullest extent permitted under the New Jersey Business Corporation Act, as amended from time to time, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.
(b) Any amendment or repeal of Section 6(a) shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment or repeal.
7. Adoption, Amendment or Repeal of By-Laws. The Board of Directors of the Corporation is expressly authorized to adopt, amend or repeal by-laws of the Corporation.
Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
THE CHUBB CORPORATION
(a New Jersey corporation)
January 14, 2016
AMENDED AND RESTATED BY-LAWS
OF
THE CHUBB CORPORATION
ARTICLE I.
OFFICES
Section 1. The registered office of the Corporation shall be in West Trenton, New Jersey. The Corporation may also have offices at such other places both within and without the State of New Jersey.
ARTICLE II.
STOCKHOLDERS
Section 1. Time and Place of Meetings. All meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and places, either within or without the State of New Jersey, as shall be designated by the Board of Directors. In the absence of any such designation by the Board of Directors, each such meeting shall be held at the principal office of the Corporation.
Section 2. Annual Meetings. An annual meeting of stockholders shall be held for the purpose of electing Directors and transacting such other business as may properly be brought before the meeting. The date of the annual meeting shall be determined by the Board of Directors.
Section 3. Special Meetings. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by law, may be called by the President and shall be called by the Secretary at the direction of a majority of the Board of Directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the Corporation issued and outstanding and entitled to vote.
Section 4. Notice of Meetings. Written notice of each meeting of the stockholders stating the place, date and time of the meeting shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. The notice of any special meeting of stockholders shall state the purpose or purposes for which the meeting is called.
Section 5. Quorum. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business, except as otherwise provided by law. If a quorum is not present or represented, the holders of the stock present in person or represented by proxy at the meeting and entitled to vote thereat shall have power, by the affirmative vote of the holders of a majority of such stock, to adjourn the meeting to another time and/or place, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting, at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 6. Voting. At all meetings of the stockholders, each stockholder shall be entitled to vote, in person or by proxy, the shares of voting stock owned by such stockholder of record on the record date for the meeting. When a quorum is present or represented at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which, by express provision of law or of the certificate of incorporation, a different vote is required, in which case such express provision shall govern and control the decision of such question.
Section 7. Action By Stockholders By Written Consent. Any action required to be taken at a meeting of the stockholders, or any other action which may be taken at a meeting of the stockholders, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the stockholders entitled to vote with respect to the subject matter thereof.
ARTICLE III.
DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation shall be managed and controlled by or under the direction of a Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or by the Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by the stockholders.
Section 2. Number, Qualification and Tenure. The Board of Directors shall consist of not less than one (1) and not more than nine (9) members. Within the limits above specified, the number of Directors shall be determined from time to time by resolution of the Board of Directors. The Directors shall be elected at the annual meeting of the stockholders, except as provided in Section 3 of this Article, and each Director elected shall hold office until his successor is elected and qualified or until his earlier death, resignation or removal. Directors need not be stockholders.
Section 3. Vacancies. Vacancies and newly created directorships resulting from any increase in the number of directors may be filled by a majority of the Directors then in office though less than a quorum, and each Director so chosen shall hold office until his successor is elected and qualified or until his earlier death, resignation or removal. If there are no Directors in office, then an election of Directors may be held in the manner provided by law.
Section 4. Place of Meetings. The Board of Directors may hold meetings, both regular and special, either within or without the State of New Jersey.
Section 5. Regular Meetings. The Board of Directors shall hold a regular meeting, to be known as the annual meeting, immediately following each annual meeting of the stockholders. Other regular meetings of the Board of Directors shall be held at such time and at such place as shall from time to time be determined by the Board. No notice of regular meetings need be given.
Section 6. Special Meetings. Special meetings of the Board may be called by the President. Special meetings shall be called by the Secretary on the written request of any Director. No notice of special meetings need be given.
Section 7. Quorum. At all meetings of the Board a majority of the total number of Directors 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 of Directors, except as may be otherwise specifically provided by law. If a quorum shall not be present at any meeting of the Board of Directors, the Directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
2
Section 8. Organization. The Chairman of the Board, if elected, shall act as chairman at all meetings of the Board of Directors. If a Chairman of the Board is not elected or, if elected, is not present, the President (if a member of the Board) or, in the absence of the President or, if the President is not a member of the Board, a Vice Chairman (who is also a member of the Board and, if more than one, in the order designated by the Board of Directors or, in the absence of such designation, in the order of their election), if any, or if no such Vice Chairman is present, a Director chosen by a majority of the Directors present, shall act as chairman at meetings of the Board of Directors.
Section 9. Executive Committee. The Board of Directors, by resolution adopted by a majority of the whole Board, may designate one or more Directors to constitute an Executive Committee, to serve as such, unless the resolution designating the Executive Committee is sooner amended or rescinded by the Board of Directors, until the next annual meeting of the Board or until their respective successors are designated. The Board of Directors, by resolution adopted by a majority of the whole Board, may also designate additional Directors as alternate members of the Executive Committee to serve as members of the Executive Committee in the place and stead of any regular member or members thereof who may be unable to attend a meeting or otherwise unavailable to act as a member of the Executive Committee. In the absence or disqualification of a member and all alternate members who may serve in the place and stead of such member, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another Director to act at the meeting in the place of any such absent or disqualified member.
Except as expressly limited by the New Jersey Business Corporation Act or the Certificate of Incorporation, the Executive Committee shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation between the meetings of the Board of Directors. The Executive Committee shall keep a record of its acts and proceedings, which shall form a part of the records of the Corporation in the custody of the Secretary, and all actions of the Executive Committee shall be reported to the Board of Directors at the next meeting of the Board.
Meetings of the Executive Committee may be called at any time by the Chairman of the Board, the President or any two of its members. No notice of meetings need be given. A majority of the members of the Executive Committee shall constitute a quorum for the transaction of business and, except as expressly limited by this section, the act of a majority of the members present at any meeting at which there is a quorum shall be the act of the Executive Committee. Except as expressly provided in this Section, the Executive Committee shall fix its own rules of procedure.
Section 10. Other Committees. The Board of Directors, by resolution adopted by a majority of the whole Board, may designate one or more other committees, each such committee to consist of one or more Directors. Except as expressly limited by the New Jersey Business Corporation Act or the Certificate of Incorporation, any such committee shall have and may exercise such powers as the Board of Directors may determine and specify in the resolution designating such committee. The Board of Directors, by resolution adopted by a majority of the whole Board, also may designate one or more additional Directors as alternate members of any such committee to replace any absent or disqualified member at any meeting of the committee, and at any time may change the membership of any committee or amend or rescind the resolution designating the committee. In the absence or disqualification of a member or alternate member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another Director to act at the meeting in the place of any such absent or disqualified member, provided that the Director so appointed meets any qualifications stated in the resolution designating the committee. Each committee shall keep a record of proceedings and report the same to the Board of Directors to such extent and in such form as the Board of Directors may require. Actions taken at a committee meeting shall be reported to the Board of Directors at its next meeting following such committee meeting; except that, when the meeting of the Board of Directors is held within two (2) days after the committee meeting, such report shall, if not made at the first meeting, be made to the Board of Directors at its second meeting following such committee meeting. Unless otherwise provided in the resolution designating a committee, a majority of all of the members of any such committee may select its Chairman, fix its rules or procedure, fix the time and place of its meetings and specify what notice of meetings, if any, shall be given.
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Section 11. Action without Meeting. Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee.
Section 12. Attendance by Telephone. Members of the Board of Directors, or of any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 13. Compensation. The Board of Directors shall have the authority to fix the compensation of Directors, which may include their expenses, if any, of attendance at each meeting of the Board of Directors. No member of a committee of the Board of Directors shall receive any separate compensation for serving on, or attendance at, such committee or meetings thereof.
ARTICLE IV.
OFFICERS
Section 1. Enumeration. The officers of the Corporation shall be chosen by the Board of Directors and may be a President, a Vice President, a Treasurer, a Secretary and an Assistant Secretary. The Board of Directors may also elect one or more Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers and such other officers and agents as it shall deem appropriate. Any number of offices may be held by the same person.
Section 2. Term of Office. The officers of the Corporation shall be elected at the annual meeting of the Board of Directors and shall hold office until their successors are elected and qualified. Any officer elected or appointed by the Board of Directors may be removed at any time by the Board of Directors. Any vacancy occurring in any office of the Corporation may be filled by the Board of Directors.
Section 3. President. The President shall be the Chief Executive Officer and shall have such functions, authority and duties as may be prescribed by the Board of Directors.
Section 4. Vice President. The Vice President shall act under the direction of the President and in the absence or disability of the President shall perform the duties and exercise the powers of the President. The Vice President shall perform such other duties and have such other powers as the President or the Board of Directors may from time to time prescribe. The Board of Directors may designate one or more Vice Presidents or may otherwise specify the order of seniority of the Vice Presidents, and, in that event, the duties and power of the President shall descend to the Vice Presidents in the specified order of seniority.
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Section 5. Secretary. The Secretary shall keep a record of all proceedings of the stockholders of the Corporation and of the Board of Directors, and shall perform like duties for the standing committees when required. The Secretary shall give, or cause to be given, notice, if any, of all meetings of the stockholders and shall perform such other duties as may be prescribed by the Board of Directors or the President. The Secretary shall have custody of the corporate seal of the Corporation and the Secretary, or in the absence of the Secretary any Assistant Secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed it may be attested by the signature of the Secretary or an Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest such affixing of the seal.
Section 6. Assistant Secretary. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties as may from time to time be prescribed by the Board of Directors, the President or the Secretary.
Section 7. Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, at its regular meetings or when the Board of Directors so requires, an account of all transactions as Treasurer and of the financial condition of the Corporation. The Treasurer shall perform such other duties as may from time to time be prescribed by the Board of Directors, the President or the Vice President.
Section 8. Assistant Treasurer. The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability or refusal to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as may from time to time be prescribed by the Board of Directors, the President or the Treasurer.
Section 9. Other Officers. Any officer who is elected or appointed from time to time by the Board of Directors and whose duties are not specified in these By-Laws shall perform such duties and have such powers as may be prescribed from time to time by the Board of Directors or the President.
ARTICLE V.
CERTIFICATES OF STOCK
Section 1. Form. The shares of the Corporation shall be represented by certificates; provided, however, that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of the Corporation’s stock shall be uncertificated shares. Certificates of stock in the Corporation, if any, shall be signed by or in the name of the Corporation by the President or a Vice President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Corporation. Where a certificate is countersigned by a transfer agent, other than the Corporation or an employee of the Corporation, or by a registrar, the signatures of the President or a Vice President and the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary may be facsimiles. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, the certificate may be issued by the Corporation with the same effect as if such officer, transfer agent or registrar were such officer, transfer agent or registrar at the date of its issue.
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Section 2. Transfer. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate of stock or uncertificated shares in place of any certificate therefor issued by the Corporation to the person entitled thereto, cancel the old certificate and record the transaction on its books.
Section 3. Replacement. In case of the loss, destruction or theft of a certificate for any stock of the Corporation, a new certificate of stock or uncertificated shares in place of any certificate therefor issued by the Corporation may be issued upon satisfactory proof of such loss, destruction or theft and upon such terms as the Board of Directors may prescribe. The Board of Directors may in its discretion require the owner of the lost, destroyed or stolen certificate, or his legal representative, to give the Corporation a bond, in such sum and in such form and with such surety or sureties as it may direct, to indemnify the Corporation against any claim that may be made against it with respect to a certificate alleged to have been lost, destroyed or stolen.
ARTICLE VI.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Subject to the conditions set forth below, the Corporation shall indemnify, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who is or was a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director, officer or employee of the Corporation against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Such indemnification shall be made only as properly authorized in the specific case upon a determination that such indemnification is permissible and proper in the circumstances, as provided by applicable law. Such indemnification shall include payment for reasonable expenses incurred in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such person to repay such amount if it shall be ultimately determined that such person is not entitled to be indemnified by the Corporation pursuant to this paragraph and upon such other terms and conditions as may be deemed to be appropriate by or on behalf of the Corporation. Also, the rights granted by this paragraph shall not apply in connection with any action, suit or proceeding initiated or instigated directly or indirectly, in whole or in part, by or on behalf of such person, unless the action, suit or proceeding was authorized by the Board of Directors of the Corporation. The right conferred on any person under this section shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Corporation’s Certificate of Incorporation, these By-laws, agreement, vote of stockholders or disinterested directors or otherwise; shall inure to the benefit of the heirs, executors, administrators and other legal representatives of such person; and shall continue as to such person even if he or she has ceased to be a director, officer or employee of the Corporation. Any repeal or modification of the provisions of this section shall not adversely affect any right or protection hereunder of any person to whom rights have been conferred under this section in respect of any act or omission occurring prior to the time of such repeal or modification.
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In particular, the foregoing indemnification obligations shall also extend to any losses or expenses incurred by a director, officer or employee and caused by that director, officer or employee’s having furnished, at the Corporation’s or any affiliate’s request, any personal identification documentation and/or other information (Furnished Information), which consequently at any time thereafter is misused by any third party for purposes of Identity Theft. As used herein, Identity Theft shall mean:
| 1. | Fraudulently obtaining credit, goods or services through use of the Furnished Information; |
| 2. | Fraudulently obtaining identification documents in such director, officer or employee’s name through use of the Furnished Information; or |
| 3. | Engaging in any other activities while fraudulently posing as such director, officer or employee through use of the Furnished Information in such manner as to damage such director, officer or employee’s reputation, legal status, community or business standing or quality of life. |
In addition and for the avoidance of doubt, it is the Corporation’s intent hereby to undertake whatever actions and incur whatever expenses are reasonably necessary to restore such director, officer or employee, to the extent practicable, to the condition such director, officer or employee would have been in had the Identity Theft not occurred.
ARTICLE VII.
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
Section 2. Corporate Seal. The corporate seal shall be in such form as may be approved from time to time by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.
Section 3. Waiver of Notice. Whenever any notice is required to be given under law or the provisions of the Certificate of Incorporation or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to notice.
ARTICLE VIII.
AMENDMENTS
These By-Laws may be altered, amended or repealed or new By-Laws may be adopted by the Board of Directors. The fact that the power to amend, alter, repeal or adopt the By-Laws has been conferred upon the Board of Directors shall not divest the stockholders of the same powers.
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