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): July 16, 2013 (July 10, 2013)
NEW JERSEY RESOURCES CORPORATION
(Exact name of registrant as specified in its charter)
| New Jersey | 001-8359 | 22-2376465 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
| 1415 Wyckoff Road Wall, New Jersey |
07719 | |
| (Address of principal executive offices) | (Zip Code) |
(732) 938-1480
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (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-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
(a) On July 10, 2013, the Board of Directors (the “Board”) of New Jersey Resources Corporation (the “Company”), upon the recommendation of the Nominating and Corporate Governance Committee (“NCGC”), approved a restated certificate of incorporation that integrates in a single certificate the provisions of the Company’s certificate of incorporation, as heretofore amended (the “Restated Certificate”). The Restated Certificate was approved by the Board without shareholder action pursuant to New Jersey Business Corporations Act Section 14A:9-5(2). On July 12, 2013, the Company filed the Restated Certificate with the Secretary of State of New Jersey.
Attached hereto as Exhibit 3.1 is the Restated Certificate, including the Certificate of Adoption of the Restated Articles of Incorporation of the Company.
(b) On July 10, 2013, the Board, upon the recommendation of the NCGC, approved amendments to the Company’s Bylaws. The amendments include (i) modification of the provisions relating to the time, date and place of annual stockholders’ meetings (Article III, Section 1) and (ii) revisions to the indemnification provisions contained in Article IX, Indemnification of Directors, Officers, Employees and Agents, designed primarily to improve the readability of the provisions, as well as to conform such provisions to the current New Jersey Business Corporations Act.
The preceding is qualified in its entirety by reference to the Company’s Bylaws, as amended, which are attached hereto as Exhibit 3.2 and are incorporated herein by reference.
Item 7.01 Regulation FD Disclosure
On July 10, 2013, the Board approved an increase of one million shares under the Company’s Share Repurchase Program. In place since September 1996, the Share Repurchase Program is an important financial tool to provide capital management flexibility. The number of authorized shares has been increased a total of seven times to a current level of 9.75 million shares. To date, eight million shares have been repurchased under the Share Repurchase Program. The Share Repurchase Plan allows the Company to purchase its shares on the open market or in negotiated transactions, based on market and other conditions. The Company is not required to purchase any specific number of shares, and may discontinue or suspend the program at any time.
The information in this Item 7.01 of this Current Report is being furnished and shall not be deemed “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that Section and shall not be deemed to be incorporated by reference into any registration statement or other document pursuant to the Securities Act of 1933, as amended.
Item 8.01 Other Events
On July 10, 2013, pursuant to the recommendation of the NCGC, the Board adopted a director resignation policy. The policy, which has been incorporated into the Company’s Corporate Governance Guidelines, requires a director who does not receive more “for” than “withheld” votes cast in an uncontested election to tender an offer of resignation to the Board. The NCGC would then consider the resignation and make a recommendation to the Board as to whether or not to accept it. Following the Board’s determination, the Company would disclose the Board’s decision of whether or not to accept the resignation and an explanation of how the decision was reached, including, if applicable, the reasons for rejecting the resignation. All of these procedures would be completed within 90 days of certification of the shareholder vote. The new policy was implemented through amendments to the Company’s Corporate Governance Guidelines, which are available on the Company’s website at http://investor.njresources.com under the caption “Corporate Governance.”
Item 9.01. Financial Statements and Exhibits
| (a) Financial statements of businesses acquired: |
Not applicable. | |
| (b) Pro forma financial information: |
Not applicable. | |
| (c) Exhibits: |
||
| Exhibit Number |
Description | |
| 3.1 | Restated Articles of Incorporation of New Jersey Resources Corporation, as amended through July 10, 2013. | |
| 3.2 | Bylaws of New Jersey Resources Corporation, as amended through July 10, 2013. | |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| NEW JERSEY RESOURCES CORPORATION | ||||||
| Date: July 16, 2013 | ||||||
| By: | /s/ Glenn C. Lockwood | |||||
| Glenn C. Lockwood | ||||||
| Executive Vice President and Chief Financial Officer |
EXHIBIT INDEX
| Exhibit Number |
Description | |
| 3.1 | Restated Articles of Incorporation of New Jersey Resources Corporation, as amended through July 10, 2013. | |
| 3.2 | Bylaws of New Jersey Resources Corporation, as amended through July 10, 2013. | |
Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
NEW JERSEY RESOURCES CORPORATION
New Jersey Resources Corporation, a corporation organized and existing under the laws of the State of New Jersey, pursuant to the provisions of Section 14A:9-5, Corporations, General, of the New Jersey Statutes, restates and integrates its Certificate of Incorporation, as heretofore restated and amended, to read in full as herein set forth:
1. The name of the corporation is New Jersey Resources Corporation.
2. The address of the corporation’s registered office is New Jersey Resources Corporation, 1415 Wyckoff Road, P.O. Box 1464, Wall, New Jersey 07719, and the name of the corporation’s registered agent at such address is Rhonda M. Figueroa.
3. The purposes for which the corporation is organized are to engage in any activity within the purposes for which corporations may be organized under the “New Jersey Business Corporation Act,” N.J.S.A. 14A:1-1 et seq.
4. The aggregate number of shares which the corporation shall have authority to issue is 75,400,000, of which 75,000,000 shares shall be designated as Common Stock of the par value of $2.50 per share and 400,000 shares shall be designated as Preferred Stock of the par value of $100 per share.
The Board of Directors may authorize the issuance from time to time of Preferred Stock in one or more series and with such designations, preferences, relative, participating, optional and other special rights, and qualifications, limitations or restrictions (which may differ with respect to each series) as the Board may fix by resolution, except that no shares of any such series shall have more than one vote each. Without limiting the foregoing, the Board of Directors is expressly authorized to fix with respect to each series:
(a) The number of shares which shall constitute such series and the name of such series;
(b) The rate and the time at which dividends on such series shall be paid and whether or not such dividends shall be cumulative;
(c) The voting powers, if any, of the holders of such series;
(d) The terms and conditions for the redemption of shares of such series, and the premium, if any, payable upon such redemption;
(e) The rights of such series upon voluntary or involuntary liquidation, including the premium, if any, payable upon the happening of such event;
(f) The terms or amount of any sinking funds or purchase fund for the purchase or redemption of shares of such series; and
(g) Conversion right or rights, if any.
5. The Board of Directors of the corporation consists of 11 Directors, and the name and address of each person who serves as such Director is:
Lawrence R. Codey
c/o New Jersey Resources Corporation
1415 Wyckoff Road
P.O. Box 1464
Wall, New Jersey 07719
Donald L. Correll
c/o New Jersey Resources Corporation
1415 Wyckoff Road
P.O. Box 1464
Wall, New Jersey 07719
Laurence M. Downes
c/o New Jersey Resources Corporation
1415 Wyckoff Road
P.O. Box 1464
Wall, New Jersey 07719
Robert B. Evans
c/o New Jersey Resources Corporation
1415 Wyckoff Road
P.O. Box 1464
Wall, New Jersey 07719
M. William Howard
c/o New Jersey Resources Corporation
1415 Wyckoff Road
P.O. Box 1464
Wall, New Jersey 07719
Jane M. Kenny
c/o New Jersey Resources Corporation
1415 Wyckoff Road
P.O. Box 1464
Wall, New Jersey 07719
Alfred C. Koeppe
c/o New Jersey Resources Corporation
1415 Wyckoff Road
P.O. Box 1464
Wall, New Jersey 07719
J. Terry Strange
c/o New Jersey Resources Corporation
1415 Wyckoff Road
P.O. Box 1464
Wall, New Jersey 07719
Sharon Taylor
c/o New Jersey Resources Corporation
1415 Wyckoff Road
P.O. Box 1464
Wall, New Jersey 07719
David Trice
c/o New Jersey Resources Corporation
1415 Wyckoff Road
P.O. Box 1464
Wall, New Jersey 07719
George R. Zoffinger
c/o New Jersey Resources Corporation
1415 Wyckoff Road
P.O. Box 1464
Wall, New Jersey 07719
6. Except as otherwise fixed by or pursuant to the provisions of Paragraph 4 hereof, relating to the rights of the holders of any class or series of stock having a preference over the Common Stock, or upon liquidation to elect additional directors, the number of the directors of the Corporation shall be fixed from time to time by or pursuant to the By-laws of the Corporation.
Notwithstanding anything contained in the Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least 80% of the voting power of all the shares of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to alter, amend or repeal this Paragraph 6 or to adopt any provision inconsistent therewith.
7. (a) The Directors, other than those who may be elected by the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation, shall be classified, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible, one class to be originally elected for a term expiring at the annual meeting of stockholders to be held in 1987, another class to be
originally elected for a term expiring at the annual meeting of stockholders to be held in 1988, and another class to be originally elected for a term expiring at the annual meeting of stockholders to be held in 1989, with each class to hold office until its successor is elected and qualified. At each annual meeting of the stockholders of the Corporation, the successors of the class of Directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of stock holders held in the third year following the year of their election.
(b) Except as otherwise provided for or fixed by or pursuant to the provisions of Paragraph 4 hereof relating to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect directors under specified circumstances, newly created directorships resulting from any increase in the number of Directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled by the affirmative vote of a majority of the remaining Directors then in office, even though less than a quorum of the Board of Directors. Any Director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the class of Directors in which the new directorship was created or the vacancy occurred and until such Director’s successor shall have been elected and qualified. No decrease in the number of Directors constituting the Board of Directors shall shorten the term of any incumbent Director.
(c) Subject to the rights of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect Directors under specified circumstances, no member of the Board of Directors may be removed from office except for cause, and only then by the affirmative vote of the holders of 80% of the voting power of the then outstanding shares of stock entitled to vote generally in the election of Directors, voting together as a single class.
8. The Board of Directors shall have power to make, alter, amend and repeal the By-laws of the Corporation (except so far as the By-laws adopted by the stockholders shall otherwise provide). Any By-laws made by the Directors under the powers conferred hereby may be altered, amended or repealed by the Directors or by the stockholders, provided, however, that if Article I of the By-laws relating to the terms of office and election of directors and Article X of the By-laws relating to amendment of the By-laws of the Corporation, shall be adopted by the Board of Directors, such sections shall not thereafter be altered, amended or repealed, nor shall any provision inconsistent therewith be adopted, except by the holders of 80% or more of the voting power of the then outstanding shares of stock entitled to vote generally in the election of directors, voting together as a single class. Notwithstanding anything contained in the Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least 80% of the voting power of all the shares of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to alter, amend or repeal this Paragraph 8 or to adopt any provision inconsistent therewith.
9. The vote of stockholders of the Corporation required to approve any Business Combination shall be as set forth in this Paragraph 9. The term “Business Combination” shall have the meaning ascribed to it in (a) (B) of this Paragraph; each other capitalized term used in this Paragraph shall have the meaning ascribed to it in (c) of this Paragraph.
(a) (A) In addition to any affirmative vote required by law or the Certificate of Incorporation or any resolution adopted pursuant to Paragraph 9 of the Certificate of Incorporation, and except as otherwise expressly provided in (b) of this Paragraph 9:
(1) any merger of consolidation of the Corporation or any Subsidiary with (i) any Interested Stockholder or (ii) any other corporation or entity (whether or not itself an Interested Stockholder) which is, or after each merger or consolidation would be, an Affiliate of an Interested Stockholder; or
(2) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of assets of the Corporation or any Subsidiary having an aggregate Fair Market Value of $10,000,000 or more; or
(3) the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities, or other property (or a combination thereof) having an aggregate Fair Market Value of $10,000,000 or more, other than the issuance of securities upon the conversion of convertible securities of the Corporation or any Subsidiary which were not acquired by such Interested Stockholder (of such Affiliate) from the Corporation of a Subsidiary; or
(4) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation proposed by or on behalf of an Interested Stockholder or any Affiliate of any Interested Stockholder; or
(5) any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any other transaction (whether or not with or into or otherwise involving an Interested Stockholder) which in any such case has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class or series of stock or securities convertible into stock of the Corporation or any Subsidiary which is directly or indirectly beneficially owned by any Interested Stockholder or any Affiliate or any Interested Stockholder;
shall not be consummated without the affirmative vote of the holders of at least 80% of the voting power of the then outstanding shares of stock of all classes and series of the Corporation entitled to vote generally in the election of directors (“Voting Stock”), in each case voting together as single class. Such affirmative vote shall be required, notwithstanding the fact that no vote may be required, or that a lesser percentage may be specified, by law or by the Certificate of Incorporation or any resolution adopted pursuant to the Certificate of Incorporation or in any agreement with any national securities exchange or otherwise.
(B) The Term “Business Combination” as used in this Paragraph 9 shall mean any transaction that is referred to in any one or more clauses (1) through (5) of (a) (A) of this Paragraph.
(b) The provisions of (a) of this Paragraph 9 shall not be applicable to any Business Combination in respect of which all of the conditions specified in either of the following paragraphs (A) and (B) are met, and such Business Combination shall require only such affirmative vote as is required by law and any of the provisions of the Certificate of Incorporation and any resolution or resolutions of the Board of Directors adopted pursuant to the Certificate of Incorporation:
(A) such Business Combination shall have been approved by a majority of the Disinterested Directors, or
(B) each of the six conditions specified in the following clauses (1) through (6) shall have been met:
(1) the aggregate amount of the cash and the Fair Market Value as of the date of the consummation of the Business Combination (the “Consummation Date”) of any consideration other than cash to be received per share by holders of Common Stock in such Business Combination shall be at least equal to the higher of the following:
(i) (if applicable) the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers’ fees) paid in order to acquire any shares of Common Stock beneficially owned by the Interested Stockholder which were acquired beneficially by such Interested Stockholder (x) within the two-year period immediately prior to the Announcement Date or (y) in the transaction in which it became an Interested Stockholder, whichever is higher; or
(ii) the Fair Market Value per share of Common Stock on the Announcement Date or on the date on which the Interested Stockholder became an Interested Stockholder (the “Determination Date”), whichever is higher; or
(iii) the Fair Market Value per share of such class or series of Voting Stock on the Announcement Date or Determination Date, whichever is higher; and
(2) the aggregate amount of the cash and the Fair Market Value as of the Consummation Date of any consideration other than cash to be received per share by holders of shares of any other class or series of Voting Stock shall be at least equal to the highest of the following (it being intended that the requirements of this clause (B) (2) shall be required to be met with respect to every class and series of such outstanding Voting Stock, whether or not the Interested Stockholder beneficially owns any shares of a particular class or series of Voting Stock):
(i) (if applicable) the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers’ fees) paid in order to acquire any shares of such class or series of voting stock owned by the Interested Stockholder which were acquired beneficially by such Interested Stockholder (x) within the two-year period immediately prior to the Announcement Date or (y) in the transaction in which it became an Interested Shareholder, whichever is higher; or
(ii) (if applicable) the highest preferential amount per share to which the holders of shares of such class or series of Voting Stock are entitled in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation; and
(3) the consideration to be received by holders of a particular class or series of outstanding Voting Stock (including Common Stock) shall be in cash or in the same form as was previously paid in order to acquire beneficially shares of such class or series of Voting Stock that are beneficially owned by the Interested Stockholder and, if the Interested Stockholder beneficially owns shares of any class or series of Voting Stock that were acquired with varying forms of consideration, the form of consideration to be received by holders of such class or series of Voting Stock shall be either cash or the form used to acquire beneficially the largest number of shares of such class or series of Voting Stock beneficially acquired by it prior to the Announcement Date; and
(4) After such Interested Stockholder has become an Interested Stockholder and prior to the consummation of such Business Combination:
(i) except as approved by a majority of the Disinterested Directors, there shall have been no failure to declare
and pay at the regular dates therefor the full amount of any dividends (whether or not cumulative) payable on any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation;
(ii) there shall have been (x) no reduction in the annual rate of dividends paid on the Common Stock (except as necessary to reflect any subdivision of the Common Stock), except as approved by a majority of the Disinterested Directors, and (y) an increase in such annual rate of dividends (as necessary to prevent any such reduction) in the event of any reclassification (including any reverse stock split), recapitalization, reorganization or any similar transaction which has the effect of reducing the number of outstanding shares of the Common Stock, unless the failure so to increase such an annual rate was approved by a majority of the Disinterested Directors; and
(iii) such Interested Stockholder shall not have become the beneficial owner of any additional shares of Voting Stock except as part of the transaction in which it became an Interested Stockholder; and
(5) after such Interested Stockholder has become an Interested Stockholder, such Interested Stockholder shall not have received the benefit, directly or indirectly (except proportionately as a stockholder), of any loans, advances, guarantees, pledges or other financial assistance or tax credits or other tax advantages provided by the Corporation, whether in anticipation of or in connection with such Business Combination or otherwise; and
(6) a proxy or information statement describing the proposed Business Combination and complying with the requirements of the Securities Exchange Act of 1934 and the rules and regulations thereunder (or any subsequent provisions replacing such Act, rules or regulations) shall be mailed to public stockholders of the Corporation at least 30 days prior to the consummation of such Business Combination (whether or not such proxy or information statement is required to be mailed pursuant to such Act or subsequent provisions).
(c) For the purposes of this Paragraph 9:
(A) A “person” shall mean any individual, firm, corporation or other entity, other than any employee stock plans sponsored by the Corporation for the exclusive benefit of the Corporation, its subsidiaries and their employees.
(B) “Interested Stockholder” shall mean any person (other than the Corporation or any Subsidiary or any employee stock plans sponsored by the Corporation for the exclusive benefit of the Corporation, its subsidiaries and their employees) who or which:
(1) is the beneficial owner, directly or indirectly, of more than 20% of the combined voting power of the then outstanding shares of Voting Stock; or
(2) is an Affiliate of the Corporation and at any time within the two-year period immediately prior to the date in question was the beneficial owner, directly or indirectly, of 20% or more of the combined voting power of the then outstanding shares of Voting Stock; or
(3) is an assignee of or has otherwise succeeded to the beneficial ownership of any shares of Voting Stock that were at any time within the two-year period immediately prior to the date in question beneficially owned by any Interested Stockholder, if such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933.
(C) A person shall be a “beneficial owner” of any Voting Stock:
(1) which such person or any of its Affiliates or Associates has (a) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (b) the right to vote or direct the vote pursuant to any agreement, arrangement or understanding; or
(2) which are beneficially owned, directly or indirectly, by any other person with which such person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of Voting Stock.
(D) For the purposes of determining whether a person is an Interested Stockholder pursuant to (c) (B) of this Paragraph 9, the number of shares of Voting Stock deemed to be outstanding shall include shares deemed owned through applications of (c) (C) of this Paragraph but shall not include any other shares of Voting Stock that may be issuable pursuant to an agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.
(E) “Affiliate” and “Associate” shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 1, 1985.
(F) “Subsidiary” means any corporation more than 50% of whose outstanding stock having ordinary voting power in the election of directors is owned, directly or indirectly, by the Corporation or by a Subsidiary or by the Corporation and one or more Subsidiaries; provided, however, that for the purposes of the definition of Interested Stockholder set forth in (c) (B) of this Paragraph 9, the term “Subsidiary” shall mean only a corporation of which a majority of any class of equity security is owned, directly or indirectly, by the Corporation.
(G) “Disinterested Director” means any member of the Board of Directors of the Corporation who is unaffiliated with, and not a nominee of, the Interested Stockholder and was a member of the Board prior to the time that the Interested Stockholder became an Interested Stockholder, and any successor of a Disinterested Director who is unaffiliated with, and not a nominee of, the Interested Stockholder and who is recommended to succeed a Disinterested Director by a majority of Disinterested Directors then on the Board of Directors.
(H) “Fair Market Value” means: (1) in the case of stock, the highest closing sale price during the 30-day period immediately preceding the date in question of a share of such stock on the Composite Tape for New York Stock Exchange Listed Stocks, or, if such stock is not quoted on the Composite Tape, on the New York Stock Exchange, or, if such stock is not listed on such Exchange, on the principal United States securities exchange registered under the Securities Exchange Act of 1934 on which such stock is listed, or, if such stock is not listed on any such exchange, the highest closing sales price or bid quotation with respect to a share of such stock during the 30-day period preceding the date in question on the National Association of Securities Dealers, Inc. Automated Quotations or any system then in use, or if no such quotations are available, the fair market value on the date in question of a share of such stock as determined by a majority of the Disinterested Directors in good faith; and (2) in the case of stock of any class or series which is not traded on any United States registered securities exchange or in the over-the-counter market or in the case of property other than cash or stock, the fair market value of such property on the date in question as determined by a majority of the Disinterested Directors in good faith.
(I) In the event of any Business Combination in which the Corporation survives, the phrase “any consideration other than cash to be received” as used in (b) (B) (1) and (2) of this Paragraph 9 shall include the shares of Common Stock and/or the shares of any other class of outstanding Voting Stock retained by the holders of such shares.
(J) “Announcement Date” means the date of first public announcement of the proposed Business Combination.
(K) “Determination Date” means the date on which the Interested Stockholder became an Interested Stockholder.
(L) The price determined in accordance with (b) (B) (1) and (b) (B) (2) of this Paragraph 9 shall be subject to appropriate adjustment in the event of any stock dividend, stock split, combination of shares or similar event.
(d) A majority of the Disinterested Directors of the Corporation shall have the power and duty to determine, on the basis of information known to them after reasonable inquiry, all facts necessary to determine compliance with this Paragraph 9, including, without limitation, (A) whether a person is an Interested Stockholder, (B) the number of shares of Voting Stock beneficially owned by any person, (C) whether a person is an Affiliate or Associate of another person, (D) whether the requirements of (b) of this Paragraph 9 have been met with respect to any Business Combination, and (E) whether the assets which are the subject of any Business Combination have, or the consideration to be received for the issuance or transfer of securities by the Company or any Subsidiary in any Business Combination has, an aggregate Fair Market Value of $10,000,000 or more. The good faith determination of a majority of the Disinterested Directors on such matters shall be conclusive and binding for all purposes of this Paragraph 9.
10. To the fullest extent from time to time permitted by law, directors and officers shall not be personally liable to the Corporation or its stockholders for damages for breach of any duty owed to the Corporation or its stockholders. Unless otherwise permitted by law, the provisions of this Paragraph 10 shall not relieve a director or officer from liability for any breach of duty based upon an act or omission (a) in breach of such person’s duty of loyalty to the Corporation or its stockholders, (b) not in good faith or involving a knowing violation of law or (c) resulting in receipt by such person of an improper personal benefit. No amendment or repeal of this provision shall adversely affect any right or protection of a director or officer of the Corporation existing at the time of such amendment or repeal.
Dated as of the 10th day of July, 2013
| NEW JERSEY RESOURCES CORPORATION | ||
| By: | /s/ Glenn C. Lockwood | |
| Glenn C. Lockwood | ||
| Executive Vice President and Chief Financial Officer | ||
CERTIFICATE OF ADOPTION
OF THE
RESTATED CERTIFICATE OF INCORPORATION
OF
NEW JERSEY RESOURCES CORPORATION
The undersigned corporation, New Jersey Resources Corporation, a corporation organized and existing under the laws of the State of New Jersey, for the purposes of restating its Certificate of Incorporation and pursuant to the provisions of Section 14A:9-5(5) of the New Jersey Business Corporation Act, hereby certifies as follows:
FIRST: The name of the corporation is NEW JERSEY RESOURCES CORPORATION.
SECOND: The restatement of the Certificate of Incorporation of New Jersey Resources Corporation has been duly approved and adopted by the Board of Directors pursuant to N.J.S.A. 14A:9-5(2) on July 10, 2013.
IN WITNESS WHEREOF, New Jersey Resources Corporation has caused this Certificate to be executed on its behalf by its duly authorized officer as of the 10th of July, 2013.
| NEW JERSEY RESOURCES CORPORATION | ||
| By: | /s/ Glenn C. Lockwood | |
| Glenn C. Lockwood | ||
| Executive Vice President and Chief Financial Officer | ||
Exhibit 3.2
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 10, 1997
Amended November 17, 1999
Amended July 11, 2007
Amended November 14, 2007
Amended July 14, 2009
Reviewed July 13, 2010
Reviewed July 11, 2012
Amended July 10, 2013
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 or her 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 Company’s Certificate of Incorporation and shall be elected and serve for such terms of office as are provided therein.
This Section shall provide the exclusive means for a stockholder to make nominations of persons for election to the Board of Directors at an annual meeting of stockholders or a special meeting of stockholders pursuant to which persons shall be elected to the Board of Directors, and only persons who are nominated in accordance with the procedures set forth in these Bylaws shall be eligible for election as a director.
Nominations of persons for election as directors may be made by (a) the Board of Directors or (b) by any stockholder who is a stockholder of record at the time of giving of the notice provided for in this Section and at the time of the meeting of stockholders, who is entitled to vote for the election of directors at the meeting and who complies with the notice procedures set forth in this Section (a “Nominating Stockholder”). Any such Nominating Stockholder may nominate a person or persons for election as director only if written notice of such Nominating Stockholder’s intent (the “Nominating Stockholder Notice”) 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 Nominating 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 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 Nominating Stockholder 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.
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To be eligible to be a nominee for election or reelection as a director of the Company, a prospective nominee who is nominated by a Nominating Stockholder must deliver (in accordance with the time periods prescribed for delivery of the Nominating Stockholder Notice under this Section to the Secretary of the Company at the principal executive offices of the Company) a written questionnaire with respect to the background and qualification of such person and the background of any other person or entity on whose behalf the nomination is being made (which questionnaire shall be provided by the Secretary upon written request). Such prospective nominee must also provide a written representation and agreement (in the form provided by the Secretary upon written request) that such person (i) is not and will not become a party to (A) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Company, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Company or (B) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the Company, with such person’s fiduciary duties under applicable law, (ii) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed therein, and (iii) in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a director of the Company, and will comply with, applicable law and all applicable publicly disclosed corporate governance, conflict of interest, corporate opportunities, confidentiality and stock ownership and trading policies and guidelines of the Company. For purposes of this Section, a “nominee” nominated by a Nominating Stockholder includes any person being considered to fill a vacancy on the Board of Directors.
The Nominating Stockholder Notice shall set forth (a) as to each person whom the Nominating Stockholder proposes to nominate for election or re-election as a director, (i) all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors, or is otherwise required, in each case pursuant to and in accordance with Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including, without limitation, such person’s written consent to be named in the proxy statement as a nominee and to serve as a director if elected, and (ii) a completed and signed questionnaire, representation and agreement required by this Section described above and (b) as to the Nominating Stockholder proposing such nomination (1) the name and address, as they appear on the books of the Company, of such Nominating Stockholder, and (2) the class and number of shares of the Company which are owned (beneficially and of record) by such Nominating Stockholder and owned by any holder of record of the Nominating Stockholder’s shares, as of the date of the Nominating Stockholder Notice, and a representation that the Nominating Stockholder will notify the Company in writing of the class and number of such shares owned of record and beneficially as of the record date for the meeting promptly following the later of the record date or the date notice of the record date is first publicly disclosed, (3) a description of any agreement, arrangement or understanding with respect to such nomination between or among the Nominating Stockholder and any of his or her affiliates or associates, and any others (including their names) acting in concert with any of the foregoing, and a representation that the
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Nominating Stockholder will notify the Company in writing of any such agreement, arrangement or understanding in effect as of the record date for the meeting promptly following the later of the record date or the date notice of the record date is first publicly disclosed, (4) a description of any agreement, arrangement or understanding (including any Derivative Transaction (as defined below)) that has been entered into as of the date of the Nominating Stockholder Notice by, or on behalf of, the Nominating Stockholder or any of his or her affiliates or associates, and a representation that the Nominating Stockholder will notify the Company in writing of any such agreement, arrangement or understanding in effect as of the record date for the meeting promptly following the later of the record date or the date notice of the record date is first publicly disclosed, (5) a representation that the Nominating Stockholder is a holder of record or beneficial owner of shares of the Company entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice and (6) a representation whether the Nominating Stockholder intends to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Company’s outstanding shares required to approve the nomination and/or otherwise to solicit proxies from stockholders in support of the nomination.
The Company may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as an independent director of the Company or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such nominee. At the request of the Board of Directors any person nominated by the Board of Directors for election as a director shall furnish to the Secretary of the Company that information required to be set forth in a Nominating Stockholder Notice of nomination which pertains to the nominee. 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 this Section, 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 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 or her 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 or her 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 or her successor is elected.
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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.
For purposes of this Section and Article III, “beneficial owner” or “beneficially owned” shall have the meaning set forth for such terms in Section 13(d) of the Exchange Act and “public disclosure” or “publicly disclosed” shall mean disclosure or disclosed in a press release reported by the Dow Jones News Service, Associated Press, PR Newswire or comparable news service or in a document publicly filed or furnished by the Company with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
For purposes of this Section and Article III, Section 1, “Derivative Transaction” means any agreement, arrangement, interest or understanding entered into by, or on behalf or for the benefit of, any Nominating Stockholder or Proponent or any of its affiliates or associates, whether record or beneficial:
(i) the value of which is derived in whole or in part from the value of any class or series of shares or other securities of the corporation,
(ii) which otherwise provides any direct or indirect opportunity to gain or share in any gain derived from a change in the value of securities of the corporation,
(iii) the effect or intent of which is to mitigate loss, manage risk or benefit of security value or price changes, or
(iv) which provides the right to vote or increase or decrease the voting power of, such Nominating Stockholder or Proponent, or any of its affiliates or associates, with respect to any securities of the corporation,
which agreement, arrangement, interest or understanding may include, without limitation, any option, warrant, debt position, note, bond, convertible security, swap, stock appreciation right, short position, profit interest, hedge, right to dividends, voting agreement, performance-related fee or arrangement to borrow or lend shares (whether or not subject to payment, settlement, exercise or conversion in any such class or series), and any proportionate interest of such Nominating Stockholder or Proponent in the securities of the corporation held by any general or limited partnership, or any limited liability company, of which such Nominating Stockholder or Proponent is, directly or indirectly, a general partner or managing member.
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 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.
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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 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.
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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; the Chief Executive Officer 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 or her 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. The Chief Operating Officer shall perform such other duties as may be delegated or assigned to him or her by 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 or her 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 or her authority, and for the financial affairs; and requirements of the Company. Upon request, the Chief Financial Officer 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 or her 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 or her 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 or her 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 or her 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 or her 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. The Secretary shall have custody of all deeds, contracts, agreements, and other 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
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direct. The Secretary 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. The Secretary shall further perform such other duties as may be delegated or assigned to him or her by the Board of Directors, or by the Chief Executive Officer, and the performance of any such duty shall be conclusive evidence of his or her 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 or her 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 or her 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. The Treasurer 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. The Treasurer shall further perform such other duties as may be delegated or assigned to him or her 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 or her 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 or her 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 or her right to act.
ARTICLE III
STOCKHOLDERS’ MEETINGS
Section 1 - ANNUAL MEETING OF STOCKHOLDERS. The annual meeting of the stockholders shall be held on a date, time and place as may be fixed 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 (other than nominations of directors, which must be made in compliance with, and shall be exclusively governed by Article I, Section 1) 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 (the
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“Proponent”). For business to be properly brought before an annual meeting by a Proponent, the Proponent 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 Proponent’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 Proponent’s notice shall set forth as to each matter the Proponent proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and address, as they appear on the Company’s books, of the Proponent proposing such business, (iii) the class and number of shares of the Company which are, directly or indirectly, owned by the Proponent (beneficially and of record) and owned by any holder of record of the Proponent’s shares, as of the date of the notice, and a representation that the Proponent will notify the Company in writing of the class and number of such shares owned beneficially and of record as of the record date for the meeting promptly following the later of the record date or the date notice of the record date is first publicly disclosed, (iv) any material interest of the Proponent in such business, (v) a description of any agreement, arrangement or understanding with respect to such business between or among the Proponent and any of its affiliates or associates, and any others (including their names) acting in concert with any of the foregoing, and a representation that the Proponent will notify the Company in writing of any such agreement, arrangement or understanding in effect as of the record date for the meeting promptly following the later of the record date or the date notice of the record date is first publicly disclosed, (vi) a description of any agreement, arrangement or understanding (including any Derivative Transaction (as defined in Article I, Section 1)) that has been entered into as of the date of the Proponent’s notice by, or on behalf of, the Proponent or any of its affiliates or associates, and a representation that the Proponent will notify the Company in writing of any such agreement, arrangement or understanding in effect as of the record date for the meeting promptly following the later of the record date or the date notice of the record date is first publicly disclosed, (vii) a representation that the Proponent is a holder of record or beneficial owner of shares of the Company entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to propose such business, (viii) a representation whether the Proponent intends to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Company’s outstanding shares required to approve the proposal and/or otherwise to solicit proxies from stockholders in support of the proposal and (ix) in the event that such matter includes a proposal to amend either the Certificate of Incorporation or the By-Laws of the Company, the language of the proposed amendment.
For the purposes of this Section and Article I, Section 1, “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.
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The Chairman of an annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the provisions of this Section, and if he or she should so determine, he or she shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. This Section shall provide the exclusive means for a stockholder to submit business (other than the nomination of a person for election as a director, which is governed by Article I, Section 1 above) before a meeting of stockholders.
Notwithstanding this Section, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder with respect to the matters set forth in this Section; provided, however, that any references in this Section to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit the requirements applicable to proposals as to any other business to be considered pursuant to this Section. Nothing in this Section 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.
Every proxy shall be executed in writing by the stockholder or his or her agent, except that a proxy may be given by a stockholder or his or her agent by telegram, cable, telephonic transmission or by any other means of electronic communication so long as that telegram, cable telephonic transmission or other means of electronic communication either sets forth or is submitted with information from which it can be determined that the proxy was authorized by the stockholder or his or her agent.
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 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 or her 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.
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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.
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 thereof shall have been previously fixed by resolution of the Board or the
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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 designate an Audit Committee, which shall consist of three or more directors, each of whom shall satisfy the independence requirements of the New York Stock Exchange and the Company’s Corporate Governance Guidelines, each as then in effect. The Audit Committee shall fix its own rules of procedure and a majority of the members serving shall constitute a quorum. The responsibilities of the Audit Committee shall be set forth in the Audit Committee’s charter as approved by the Board of Directors.
Section 3 - OTHER COMMITTEES. The Board of Directors may, from time to time, appoint such other 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 - STOCK CERTIFICATES. The Certificates for shares of capital stock of the Company shall be in such form as the Board of Directors may from time to time prescribe and as may be required by New Jersey law. Certificates for shares of capital stock of the Company shall be signed by the President and Chief Executive Officer or a Vice President (including any Executive or Senior Vice Presidents) and countersigned by the Treasurer or an
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Assistant Treasurer, the Secretary or an Assistant Secretary. Each certificate of stock shall certify the number of shares owned by the stockholder in the Company. The shares of capital stock of the Company shall be represented by certificates unless the Board of Directors shall by resolution provide that some or all of any class or series of capital stock of the Company shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until the certificate is surrendered to the Company. Notwithstanding the adoption of any resolution providing for uncertificated shares of capital stock, every holder of shares of capital stock represented by certificates and upon request every holder of uncertificated shares of capital stock shall be entitled to have a certificate representing the number of shares of capital stock registered in certificate form. Any or all signatures upon a certificate may be facsimiles.
Section 2 - TRANSFER OF SHARES. Shares of Company stock shall be transferred on the books of the Company only (1) upon presentation and surrender of the appropriate certificate by the registered holder of such shares in person or by his or her duly authorized attorney or by a person presenting proper evidence of succession, assignment or authority to transfer such shares and, in any of such cases, cancellation of a certificate or of certificates for an equivalent number of shares or (2) in the case of uncertificated shares upon receipt of proper transfer instructions from the registered holder of such shares or from a duly authorized attorney or upon presentation of proper evidence of succession, assignment or authority to transfer such shares.
Section 3 - LOST CERTIFICATES OF STOCK. In case of loss, destruction or mutilation of any certificate for shares of capital stock of the Company, pursuant to the laws of the State of New Jersey relating to lost, destroyed or mutilated certificates for shares of capital stock, the Company may require the holder of record to furnish such information as the Board of Directors may require to ascertain whether such certificate has been lost, destroyed or mutilated. In addition, the Board of Directors may require that such holder of record give a bond of indemnity to the Company in such form and in such sum as the Board of Directors may direct, and to comply with any other terms the Board of Directors may lawfully prescribe, provided that the Board of Directors may elect not to require any bond when, in the judgment of the Board of Directors, it is proper so to do. Upon satisfactory completion by the holder of record of the requirements imposed by the Board of Directors, the Company shall deliver to the holder of record either a duplicate certificate for such shares of capital stock or evidence of the holder’s ownership of such shares of capital stock in uncertificated form, as the Board of Directors so determines.
Section 4 - 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.
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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, her 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, her 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.
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 - DIRECTORS AND OFFICERS OF THE COMPANY AND ITS SUBSIDIARIES
(a) The Company shall indemnify to the fullest extent authorized by the New Jersey Business Corporation Act (“NJBCA”)1, any person who is or was a director or officer of the Company or any subsidiary, made, or threatened to be made, a party to, or a witness or other participant in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative, legislative, investigative, or of any other kind, and any
| 1 | The reference to the NJBCA in this Article IX refers to the NJBCA as the same exists on July 10,2013, or as it may be hereafter 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 permits on July 10, 2013) |
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appeal therein and any inquiry or investigation that could lead to such action, suit or proceeding (each, a “Proceeding”), by reason of the fact that such person is or was a director or officer of the Company or any subsidiary of the Company, or serves or served any other enterprise (as defined in Section 14A:3-5 of the NJBCA) at the request of the Company (including service as a fiduciary with respect to any employee benefit plan of the Company or any subsidiary of the Company) (a “Covered Person”) against expenses (including reasonable costs, disbursements and attorneys’ fees (“Expenses”)), judgments, fines, penalties, excise taxes and amounts paid in settlement, actually and reasonably incurred by such person in connection with such Proceeding (“Covered Expenses”). No indemnification pursuant to this Article IX shall be required with respect to any settlement or other non-adjudicated disposition of any Proceeding unless the Company has given its prior written consent to such settlement or other disposition.
(b) A Covered Person shall be reimbursed for Covered Expenses in advance of the final disposition of the Proceeding upon receipt of an undertaking by or on behalf of such Covered Person to repay such amounts to the Company if it is ultimately determined that such person is not entitled to be indemnified by the Company.
(c) The rights to indemnification conferred in this Article IX, Section 1 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 - EMPLOYEES AND AGENTS OF THE COMPANY
The Company may, to the extent authorized from time to time by the Board of Directors by way of resolution, indemnify and advance expenses to, employees and agents of the Company. Anything herein to the contrary notwithstanding, the Company shall not be obligated under this Article IX to indemnify any person or entity, except for Covered Persons, including: (i) any bank, trust company, insurance company, partnership or other entity, or any director, officer, employee or agent thereof or (ii) 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. Nothing in this Article IX shall limit the Company’s power to pay or reimburse expenses of any Covered Person or employee or agent of the Company or any direct or indirect subsidiary of the Company, in connection with such person’s appearance as a witness in a Proceeding, whether or not such person is a party to such Proceeding.
Section 3 - LIMITATION ON INDEMNIFICATION
Notwithstanding anything contained in this Article IX to the contrary, the Company shall not be obligated to indemnify any person (or his or her heirs, executors or personal or legal representatives) or advance expenses in connection with a Proceeding (or part thereof) initiated by such person unless such indemnification or advancement of expenses is authorized by way of resolution by the Board of Directors of the Company.
Section 4 - INSURANCE.
The Company may purchase and maintain insurance or furnish similar protection to protect itself and any Covered Person against any Covered Expenses incurred in any Proceeding whether or not the Company would have the power or the obligation to indemnify such person against such liability under the provisions of this Article IX or under the NJBCA as it exists as of the date hereof or as it may hereafter be amended. The Company’s procurement of such insurance or similar protection shall not in any way expand the rights of any person.
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Section 5 - NO RETROACTIVE REPEAL OR AMENDMENT.
No elimination of or amendment to this Article IX shall deprive any person of rights hereunder arising out of alleged or actual occurrences, acts or failures to act occurring prior to sixty days following such elimination or amendment. The rights provided to any person by this Article IX shall inure to the benefit of such person’s heirs, executors, and administrators.
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 Company, by action of the holders of a majority of the outstanding shares of capital stock of the Company entitled to vote generally in the election of directors, considered for this purpose as one class.
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