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
Chubb Limited
(Exact name of registrant as specified in its charter)
| Switzerland | 1-11778 | 98-0091805 | ||
|
(State or other jurisdiction of Incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
Bärengasse 32
CH-8001 Zurich, Switzerland
(Address of principal executive offices)
Registrant’s telephone number, including area code: +41 (0) 43 456 76 00
ACE Limited
(Former name or address, if changed since last report.)
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 under Item 2.03 is incorporated herein by reference.
| 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 (the “ Merger Agreement ”) among ACE Limited (now named Chubb Limited), a company organized under the laws of Switzerland (the “ Registrant ”), The Chubb Corporation, a New Jersey corporation (“ Chubb Corp ”) and William Investment Holdings Corporation, a New Jersey corporation and a wholly owned subsidiary of the Registrant (“ Merger Sub ”), Merger Sub merged with and into Chubb Corp, with Chubb Corp continuing as the surviving corporation and a wholly owned indirect subsidiary of the Registrant (the “ Merger ”).
From and after the Effective Time, the Registrant has been doing business under the name “Chubb Limited” and, on January 15, 2016, the Registrant was renamed Chubb Limited and its common shares, par value CHF 24.15 per share (the “ ACE Common Shares ”) commenced trading on the New York Stock Exchange under the ticker symbol “CB”. The common stock, par value $1.00 per share, of Chubb Corp (the “ Chubb Corp Common Stock ”), which had traded under the symbol “CB”, has ceased trading on, and has been delisted from, the New York Stock Exchange.
Pursuant to the terms and conditions of the Merger Agreement, at the Effective Time, each outstanding share of 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 an 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 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.
As previously disclosed, on October 22, 2015, at an extraordinary general meeting of the shareholders of the Registrant, four individuals who were directors of Chubb Corp—Sheila P. Burke, James I. Cash, Jr., Lawrence W. Kellner and James M. Zimmerman—were elected as members of the Registrant’s Board of Directors, subject to the completion of the Merger. On January 14, 2016, as a result of the completion of the Merger, Ms. Burke, Mr. Cash, Mr. Kellner and Mr. Zimmerman became directors of the Registrant with Ms. Burke joining the Risk & Finance Committee and Mr. Kellner and Mr. Cash joining the Audit Committee, and Mr. Zimmerman joining the Nominating and Governance Committee and serving as an observer to the Compensation Committee, pending election to the Compensation Committee at the Registrant’s next annual general meeting of shareholders.
The issuance of ACE Common Shares in connection with the Merger was registered under the Securities Act of 1933, as amended, pursuant to the Registrant’s registration statement on Form S-4 (File No. 333-206056) (the “ Registration Statement ”) filed with the Securities and Exchange Commission (the “ SEC ”) on August 3, 2015, amended as of September 1, 2015 and declared effective on September 9, 2015.
The representations, warranties and covenants of each of the Registrant, 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 its 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 the Registrant 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 hereby incorporated by reference into this Item 2.01.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of Registrant
After completion of the Merger, and effective as of January 15, 2016, Chubb Corp merged with and into ACE INA Holdings Inc., a Delaware corporation and a wholly owned subsidiary of the Registrant (“ ACE INA ”), with ACE INA surviving as a wholly owned subsidiary of the Registrant (the “ Secondary Merger ”).
Effective as of the completion of the Secondary Merger, ACE INA assumed Chubb Corp’s rights, duties and obligations, and the Registrant guaranteed ACE INA’s payment obligations, with respect to the following securities under the following indentures:
a) Pursuant to a First Supplemental Indenture (“ First Supplemental Indenture ”), dated as of January 15, 2016, among the Registrant, 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, the Registrant 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 the Registrant, 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, the Registrant 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. The Registrant’s guarantee with respect to the 6.375% DISCs is subordinate to the Registrant’s senior indebtedness (as defined in the Second Supplemental Indenture), including the Registrant’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 the Registrant’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: (i) the First Supplemental Indenture and the Second Supplemental Indenture, which are attached as Exhibits 4.1 and 4.2, respectively, hereto and incorporated by reference into this Item 2.03; and (ii) 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 4.3, 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 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year |
In connection with the completion of the Merger, the Registrant filed amendments to its Articles of Association with the Commercial Register of the Canton of Zurich, Switzerland, on January 14, 2016 to reflect an increase of 136,951,452 shares in its issued share capital (article 3(a)) and to reflect a corresponding decrease in its authorized share capital (article 6(a)). The capital increase was authorized by the Registrant’s shareholders at the extraordinary general meeting held on October 22, 2015 and approved by the Registrant’s Board of Directors pursuant to resolutions dated as of January 14, 2016.
In addition, as previously disclosed, on October 22, 2015, at the extraordinary general meeting of the Registrant’s shareholders, the Registrant’s shareholders resolved to amend the Articles of Association of the Registrant in order to change the Registrant’s name to “Chubb Limited”, subject to completion of the Merger. The necessary filings with the Commercial Register of the Canton of Zurich, Switzerland to implement these amendments were made and became effective on January 15, 2016.
The foregoing description is qualified in its entirety by reference to the Registrant’s amended Articles of Association attached hereto as Exhibit 3.1 and incorporated by reference into this Item 5.03.
| Item 9.01. | Financial Statements, Pro Forma Financial Information and Exhibits |
a) Financial Statements of the Businesses Acquired.
The audited consolidated balance sheets of Chubb Corp as of December 31, 2014 and December 31, 2013 and the related consolidated statements of income, comprehensive income, shareholders’ equity and cash flows of Chubb Corp for each of the three years in the period ended December 31, 2014, and the notes related thereto, and the financial statement schedules, are incorporated by reference to Exhibit 99.1 hereto and are hereby incorporated by reference into this Item 9.01(a).
The Report of Independent Registered Public Accounting Firm, issued by Ernst & Young LLP, dated February 26, 2015, relating to the Chubb Corp financial statements and financial statement schedules, is incorporated by reference to Exhibit 99.2 hereto and is hereby incorporated by reference into this Item 9.01(a).
The unaudited consolidated condensed balance sheets of Chubb Corp as of September 30, 2015 and December 31, 2014, the consolidated condensed statements of income and comprehensive income for the three and nine months ended September 30, 2015 and the consolidated condensed statements of shareholders’ equity and cash flows for the nine months ended September 30, 2015, and the notes related thereto, are incorporated by reference to Exhibit 99.3 hereto and are hereby incorporated by reference into this Item 9.01(a).
b) Pro Forma Financial Information.
The Registrant intends to file pro forma financial information under cover of Form 8-K/A not later than 71 calendar days after the date that this Report is required to be filed.
d) Exhibits.
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Number |
Description |
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| 2.1 | Merger Agreement (incorporated by reference to Exhibit 2.1 to the Registrant’s Current Report on Form 8-K filed on July 7, 2015) (File No. 001-11778) | |
| 3.1 | Amended Articles of Association of the Registrant | |
| 4.1 | First Supplemental Indenture to the Chubb Corp Senior Indenture | |
| 4.2 | Second Supplemental Indenture to the Chubb Corp Junior Subordinated Indenture | |
| 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 2037 (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) | |
| 23.1 | Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm for Chubb Corp | |
| 99.1 | The audited consolidated balance sheets of Chubb Corp as of December 31, 2014 and December 31, 2013 and the related consolidated statements of income, comprehensive income, shareholders’ equity and cash flows of Chubb Corp for each of the three years in the period ended December 31, 2014, and the notes related thereto, and the financial statement schedules (incorporated by reference to Part I, Item 8 and Part IV, Item 15(a) of Chubb Corp’s Annual Report on Form 10-K for the Fiscal Year Ended December 31, 2014, filed on February 26, 2015) (File No. 001-08661) | |
| 99.2 | Report of Independent Registered Public Accounting Firm, issued by Ernst & Young LLP, dated February 26, 2015, relating to the Chubb Corp financial statements and financial statement schedules (incorporated by reference to Part IV, Item 15(a) to Chubb Corp’s Annual Report on Form 10-K for the Fiscal Year Ended December 31, 2014, filed on February 26, 2015) (File No. 001-08661) | |
| 99.3 | The unaudited consolidated condensed balance sheets of Chubb Corp as of September 30, 2015 and December 31, 2014, the consolidated condensed statements of income and comprehensive income for the three and nine months ended September 30, 2015, and the consolidated condensed statements of shareholders’ equity and cash flows for the nine months ended September 30, 2015, and the notes related thereto (incorporated by reference to Part I, Item 1 of Chubb Corp’s Quarterly Report on Form 10-Q for the Period Ended September 30, 2015, filed on November 6, 2015) (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.
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Chubb Limited |
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| (Registrant) | ||
| By: |
/s/ Philip V. Bancroft |
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| Philip V. Bancroft | ||
| Executive Vice President and Chief Financial Officer | ||
Date: January 15, 2016
EXHIBIT INDEX
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Number |
Description |
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| 2.1 | Merger Agreement (incorporated by reference to Exhibit 2.1 to the Registrant’s Current Report on Form 8-K filed on July 7, 2015) (File No. 001-11778) | |
| 3.1 | Amended Articles of Association of the Registrant | |
| 4.1 | First Supplemental Indenture to the Chubb Corp Senior Indenture | |
| 4.2 | Second Supplemental Indenture to the Chubb Corp Junior Subordinated Indenture | |
| 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 2037 (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) | |
| 23.1 | Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm for Chubb Corp | |
| 99.1 | The audited consolidated balance sheets of Chubb Corp as of December 31, 2014 and December 31, 2013 and the related consolidated statements of income, comprehensive income, shareholders’ equity and cash flows of Chubb Corp for each of the three years in the period ended December 31, 2014, and the notes related thereto, and the financial statement schedules (incorporated by reference to Part I, Item 8 and Part IV, Item 15(a) of Chubb Corp’s Annual Report on Form 10-K for the Fiscal Year Ended December 31, 2014, filed on February 26, 2015) (File No. 001-08661) | |
| 99.2 | Report of Independent Registered Public Accounting Firm, issued by Ernst & Young LLP, dated February 26, 2015, relating to the Chubb Corp financial statements and financial statement schedules (incorporated by reference to Part IV, Item 15(a) to Chubb Corp’s Annual Report on Form 10-K for the Fiscal Year Ended December 31, 2014, filed on February 26, 2015) (File No. 001-08661) | |
| 99.3 | The unaudited consolidated condensed balance sheets of Chubb Corp as of September 30, 2015 and December 31, 2014, the consolidated condensed statements of income and comprehensive income for the three and nine months ended September 30, 2015, and the consolidated condensed statements of shareholders’ equity and cash flows for the nine months ended September 30, 2015, and the notes related thereto (incorporated by reference to Part I, Item 1 of Chubb Corp’s Quarterly Report on Form 10-Q for the Period Ended September 30, 2015, filed on November 6, 2015) (File No. 001-08661) | |
Exhibit 3.1
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Die Gesellschaft kann im In- und Ausland Grundstücke erwerben, halten und veräussern. |
The Company may acquire, hold and sell real estate in Switzerland and abroad. |
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b) Die Gesellschaft kann alle Geschäfte tätigen, die geeignet sind, den Zweck der Gesellschaft zu fördern und mit dem Zweck im Zusammenhang stehen. |
b) The Company may engage in all types of transactions and may take all measures that appear appropriate to promote the purpose of the Company or that are related to the same. |
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II. Aktienkapital und Aktien |
II. Share Capital and Shares |
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Artikel 3 Aktienkapital
a) Das Aktienkapital der Gesellschaft beträgt CHF 11’586’780’315.60 und ist eingeteilt in 479’783’864 auf den Namen lautende Aktien im Nennwert von CHF 24.15 je Aktie. Das Aktienkapital ist vollständig liberiert. |
Article 3 Share Capital
a) The share capital of the Company amounts to CHF 11,586,780,315.60 and is divided into 479,783,864 registered shares with a nominal value of CHF 24.15 per share. The share capital is fully paid-in. |
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b) Auf Beschluss der Generalversammlung können jederzeit Namenaktien in Inhaberaktien und Inhaberaktien in Namenaktien umgewandelt werden. |
b) Upon resolution of the General Meeting of Shareholders, registered shares may be converted into bearer shares and bearer shares may be converted into registered shares, at any time. |
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Artikel 4 Bedingtes Aktienkapital für Anleihensobligationen und ähnliche Instrumente der Fremdfinanzierung
a) Das Aktienkapital der Gesellschaft wird im Maximalbetrag von CHF 796’950’000.00 durch Ausgabe von höchstens 33’000’000 vollständig zu liberierenden Namenaktien mit einem Nennwert von CHF 24.15 je Aktie erhöht, bei und im Umfang der Ausübung von Wandel- und/oder Optionsrechten, welche im Zusammenhang mit von der Gesellschaft oder ihren Tochtergesellschaften emittierten oder noch zu emittierenden Anleihensobligationen, Notes oder ähnlichen Obligationen oder Schuldverpflichtungen eingeräumt wurden/werden, einschliesslich Wandelanleihen. |
Article 4 Conditional Share Capital for Bonds and Similar Debt Instruments
a) The share capital of the Company shall be increased by an amount not exceeding CHF 796,950,000.00 through the issue of a maximum of 33,000,000 registered shares, payable in full, each with a nominal value of CHF 24.15 through the exercise of conversion and/or option or warrant rights granted in connection with bonds, notes or similar instruments, issued or to be issued by the Company or by subsidiaries of the Company, including convertible debt instruments. |
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| III. Organisation | III. Organization | |
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A. Die Generalversammlung |
A. The General Meeting |
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Artikel 9 Befugnisse
Die Generalversammlung ist das oberste Organ der Gesellschaft. Sie hat die folgenden unübertragbaren Befugnisse: |
Article 9 Authorities
The General Meeting is the supreme corporate body of the Company. It has the following non-transferable powers: |
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1. die Festsetzung und Änderung der Statuten; |
1. to adopt and amend the Articles of Association; |
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2. die Wahl und Abwahl der Mitglieder des Verwaltungsrats, des Präsidenten des Verwaltungsrats, der Mitglieder des Vergütungsausschusses, der Revisionsstelle und des unabhängigen Stimmrechtsvertreters; |
2. to elect and remove the members of the Board of Directors, the Chairman of the Board of Directors, the members of the Compensation Committee, the Auditors and the independent proxy; |
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3. die Genehmigung des Lageberichts, der Jahresrechnung und der Konzernrechnung sowie die Beschlussfassung über die Verwendung des Bilanzgewinns, insbesondere die Festsetzung der Dividende; |
3. to approve the statutorily required management report, the annual accounts and the consolidated financial statements as well as to pass resolutions regarding the allocation of profits as shown on the balance sheet, in particular to determine the dividends; |
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4. die Entlastung der Mitglieder des Verwaltungsrats; |
4. to grant discharge to the members of the Board of Directors; |
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5. die Genehmigung der Vergütungen des Verwaltungsrats und der Geschäftsleitung gemäss Art. 25 der Statuten; und |
5. to approve the compensation of the Board of Directors and the Executive Management in accordance with Article 25; and |
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6. die Beschlussfassung über die Gegenstände, die der Generalversammlung durch das Gesetz oder die Statuten vorbehalten sind oder welche ihr vom Verwaltungsrat vorgelegt werden. |
6. to pass resolutions regarding items which are reserved to the General Meeting by law or by the Articles of Association or which are presented to it by the Board of Directors. |
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d) Der Verwaltungsrat hat das Recht die Bestimmungen des Artikels 14 der Statuten auszulegen und die Berechtigung von natürlichen und juristischen Personen an Aktien der Gesellschaft zur Sicherstellung der Umsetzung dieser Bestimmungen festzulegen. Bei der Auslegung kann der Verwaltungsrat Gesetze, Reglemente und übrige Bestimmungen sowie Rechtsprechung aus dem In- und Ausland beiziehen, welche Art. 14 der Statuten ähnlich sind. |
d) The Board of Directors shall have the authority to interpret the provisions of this Article 14 and to determine the ownership of shares by any individual or entity so as to fully implement the provisions of this Article 14. In so interpreting this Article 14, the Board of Directors may look to laws, rules, regulations and court decisions (including of countries outside of Switzerland) having language substantially similar to this Article 14. |
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e) Der Verwaltungsrat kann in besonderen Fällen Ausnahmen von den vorerwähnten Stimmrechtsbeschränkungen gewähren. |
e) The Board of Directors may in special cases allow exceptions from this limitation on voting rights. |
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Artikel 15 Unabhängiger Stimmrechtsvertreter und weitere Vertretungsregeln |
Article 15 Independent Proxy and Additional Rules on Proxies |
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a) Die Generalversammlung wählt einen unabhängigen Stimmrechtsvertreter. Die Amtszeit endet jeweils mit Abschluss der nächsten ordentlichen Generalversammlung. Wiederwahl ist möglich. |
a) The General Meeting shall elect an Independent Proxy. The term of office ends in each case at the end of the next ordinary General Meeting. Re-election is permitted. |
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b) Jeder stimmberechtigte Aktionär kann seine Aktien durch den von ihm schriftlich oder elektronisch bevollmächtigten unabhängigen Stimmrechtsvertreter oder durch eine andere Person in Übereinstimmung mit Art. 14 lit. a) vertreten lassen. Die Mitglieder des Verwaltungsrates und der Geschäftsleitung dürfen Aktionäre vertreten, sofern es sich nicht um eine institutionalisierte Vertretung handelt. Verwahrungsstellen dürfen Aktionäre vertreten und gelten nicht als Depotvertreter (im Sinne von Art. 689d OR), sofern sie aufgrund einer schriftlichen Vollmacht und nach Massgabe von konkreten oder allgemeinen Weisungen des betreffenden Aktionärs handeln. |
b) Each shareholder may be represented at the General Meeting by the Independent Proxy by way of a written or electronic proxy or by another person in accordance with Article 14(a). The members of the Board of Directors and the Executive Management are allowed to represent shareholders provided that this does not constitute an institutionalized representation of shareholders. Custodians may represent shareholders and shall not be deemed depositary representatives (in the sense of Art. 689d of the Swiss Code of Obligations), provided that they act based on a written proxy and in accordance with specific or general instructions of the relevant shareholder. |
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c) Der unabhängige Stimmrechtsvertreter ist verpflichtet, die von ihm vertretenen Stimmrechte weisungsgemäss auszuüben. Hat er keine Weisungen erhalten, so enthält er sich der Stimme. Eine allgemeine oder konkludente Weisung, bei in der Einberufung bekanntgegebenen und/oder nicht bekanntgegebenen Anträgen jeweils im Sinne des Antrages des Verwaltungsrates zu stimmen, gilt als gültige Weisung zur Stimmrechtsausübung. |
c) The Independent Proxy is obliged to exercise the represented voting rights in accordance with instructions. If no instructions were obtained, it shall abstain from voting. A general or implied instruction to vote according to the proposal of the Board of Directors in respect of proposals announced and/or not announced in the invitation shall be considered a valid instruction to exercise voting rights. |
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d) Der unabhängige Stimmrechtsvertreter kann sich an der Generalversammlung durch einen Vertreter oder eine untergeordnete Person vertreten lassen. Der unabhängige Stimmrechtsvertreter bleibt für die Erfüllung seiner Pflichten vollumfänglich verantwortlich. |
d) The Independent Proxy may be represented at the General Meeting by a representative or a subordinate person. The Independent Proxy remains fully responsible for fulfilling its duties. |
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e) Fällt der unabhängige Stimmrechtsvertreter aus, stellt der Verwaltungsrat ihn nach den gesetzlichen Vorschriften in seiner Funktion ein, oder hat die Gesellschaft aus anderen Gründen keinen handlungsfähigen unabhängigen Stimmrechtsvertreter, so ernennt der Verwaltungsrat einen neuen unabhängigen Stimmrechtsvertreter für die nächste Generalversammlung. Bisher abgegebene Vollmachten und Stimmrechtsinstruktionen behalten ihre Gültigkeit für den neuen unabhängigen Stimmrechtsvertreter, solange ein Aktionär nicht ausdrücklich etwas anderes anordnet. |
e) If the Independent Proxy is not available anymore to hold office, if the Board of Directors lawfully suspends him from its office, or if the Company does not have an Independent Proxy capable of acting for other reasons, then the Board of Directors shall appoint a new Independent Proxy for the next General Meeting. Proxies and voting instructions that were already issued remain valid for the new Independent Proxy as long as a shareholder does not explicitly determine otherwise. |
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f) Der Verwaltungsrat kann Verfahrensvorschriften im Zusammenhang mit der Teilnahme und Vertretung von Aktionären an der Generalversammlung erlassen und insbesondere die Erteilung von Weisungen an den unabhängigen Stimmrechtsvertreter näher regeln. Er sorgt dafür, dass die Aktionäre dem unabhängigen Stimmrechtsvertreter auch elektronische Vollmachten und Weisungen erteilen können, wobei er ermächtigt ist, vom Erfordernis einer qualifizierten elektronischen Signatur ganz oder teilweise abzusehen. |
f) The Board of Directors may pass procedural provisions in connection with the participation in and the representation at the General Meeting and in particular regulate in more detail the issuing of instructions to the Independent Proxy. It shall make sure that the shareholders are able to grant powers of attorneys and can issue instructions to the Independent Proxy by electronic means. In doing so, it is entitled to waive entirely or in part the requirement of a qualified electronic signature. |
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Artikel 16 Beschlüsse
a) Die Generalversammlung ist beschlussfähig ohne Rücksicht auf die Zahl der anwesenden Aktionäre oder der vertretenen Aktien. |
Article 16 Resolutions
a) The General Meeting may pass resolutions without regard to the number of shareholders present or shares represented. |
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b) Die Generalversammlung fasst ihre Beschlüsse und vollzieht ihre Wahlen, soweit das Gesetz oder diese Statuten nichts anderes vorsehen, mit der einfachen Mehrheit der abgegebenen Stimmen (wobei Enthaltungen, sog. Broker Nonvotes, leere oder ungültige Stimmen für die Bestimmung des Mehr nicht berücksichtigt werden). |
b) Unless otherwise required by law or the Articles of Association, the General Meeting shall pass its resolutions and carry out its elections with the simple majority of the votes cast (whereby abstentions, broker non-votes, blank or invalid ballots shall be disregarded for purposes of establishing the majority). |
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c) Der Vorsitzende bestimmt das Abstimmungsverfahren. Erfolgen die Wahlen nicht elektronisch haben sie mittels Stimmzettel zu erfolgen, wenn mindestens 50 anwesende Aktionäre dies per Handzeichen verlangen. Die Weisungserteilung via Internet oder Telefon kann durch den Vorsitzenden gestattet werden. |
c) The Chairman of the General Meeting shall determine the voting procedure. Provided that the voting is not done electronically, voting shall be by ballot if more than 50 of the shareholders present so demand by a show of hands. The accord of instructions by using the internet or the telephone can be permitted by the Chairman. |
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Artikel 17 Quorum
Ein Beschluss der Generalversammlung, der mindestens zwei Drittel der vertretenen Stimmen und die absolute Mehrheit der vertretenen Aktiennennwerte auf sich vereinigt, ist erforderlich für: |
Article 17 Quorums
A resolution of the General Meeting passed by at least two thirds of the represented share votes and the absolute majority of the represented shares par value is required for: |
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1. die in Art. 704 Abs. 1 OR aufgeführten Geschäfte, d.h. für: |
1. the cases listed in art. 704 para. 1 CO, i.e.: |
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(a) die Änderung des Gesellschaftszwecks; |
(a) the change of the company purpose; |
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(b) die Einführung von Stimmrechtsaktien; |
(b) the creation of shares with privileged voting rights; |
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(c) die Beschränkung der Übertragbarkeit von Namenaktien; |
(c) the restriction of the transferability of registered shares; |
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(d) eine genehmigte oder bedingte Kapitalerhöhung; |
(d) an increase of capital, authorized or subject to a condition; |
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(e) die Kapitalerhöhung aus Eigenkapital, gegen Sacheinlage oder zwecks Sachübernahme und die Gewährung von besonderen Vorteilen; |
(e) an increase of capital out of equity, against contribution in kind, or for the purpose of acquisition of assets and the granting of special benefits; |
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(f) die Einschränkung oder Aufhebung des Bezugsrechts; |
(f) the limitation or withdrawal of pre-emptive rights; |
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c) Der Verwaltungsrat konstituiert sich selber, sofern das Gesetz oder die Statuten nichts anderes bestimmen. Er bezeichnet einen Sekretär; dieser braucht nicht dem Verwaltungsrat anzugehören. |
c) The Board of Directors shall constitute itself unless provided otherwise by law or the Articles of Association. It appoints a Secretary who does not need to be a member of the Board of Directors. |
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d) Fällt der Präsident aus oder hat die Gesellschaft aus anderen Gründen keinen handlungs- und funktionsfähigen Präsidenten, so ernennt der Verwaltungsrat eines seiner Mitglieder zum Präsidenten bis zur nächsten ordentlichen Generalversammlung; die Einberufung einer Generalversammlung nach Art. 726 Abs. 2 OR bleibt vorbehalten. |
d) If the Chairman is not available to continue to hold office or if the Company does not have a Chairman capable of acting and of holding office for other reasons, then the Board of Directors shall appoint one of its members as Chairman until the next ordinary General Meeting; the calling of a General Meeting in accordance with Art. 726 para. 2 CO is reserved. |
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Artikel 19 Zuständigkeit und Delegation
a) Der Verwaltungsrat hat die Oberleitung der Gesellschaft sowie die Aufsicht über die Geschäftsleitung. Er vertritt die Gesellschaft gegenüber Dritten und kann in allen Angelegenheiten Beschluss fassen, welche nicht gemäss Gesetz, Statuten oder Organisationsreglement einem anderen Organ zugewiesen sind. |
Article 19 Ultimate Direction, Delegation
a) The Board of Directors is entrusted with the ultimate direction of the Company as well as the supervision of the management. It represents the Company towards third parties and attends to all matters which are not delegated to or reserved for another corporate body of the Company by law, the Articles of Association or the regulations. |
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b) Der Verwaltungsrat kann aus seiner Mitte Ausschüssen bestellen oder einzelne Mitglieder bestimmen, welche mit der Vorbereitung und/oder Ausführung seiner Beschlüsse oder der Überwachung bestimmter Geschäfte betraut sind. Der Verwaltungsrat erlässt hierzu die notwendigen organisatorischen Weisungen. Mit Ausnahme der unübertragbaren Befugnisse kann der Verwaltungsrat die Geschäftsführung ganz oder teilweise an ein Mitglied oder mehrere Mitglieder des Verwaltungsrats oder an andere natürliche Personen, welche keine Aktionäre zu sein brauchen, übertragen. Der Verwaltungsrat erlässt hierzu die notwendigen Organisationsreglemente und erstellt die erforderlichen Vertragsdokumente. |
b) The Board of Directors may delegate preparation and/or implementation of its decisions and supervision of the business to committees or to individual members of the Board of Directors. The organizational regulations will be defined by the Board of Directors. While reserving its non-transferable powers, the Board of Directors may further delegate the management of the business or parts thereof to one or more members of the Board of Directors or other natural persons who need not be shareholders. The Board of Directors shall record all such arrangements in a set of regulations for the Company and set up the necessary contractual framework. |
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Artikel 20 Einzelne Befugnisse
Der Verwaltungsrat hat folgende unübertragbare und unentziehbare Befugnisse: |
Article 20 Duties
The Board of Directors has the following non-transferable and inalienable duties: |
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1. die Oberleitung der Gesellschaft und die Erteilung der nötigen Weisungen; |
1. to ultimately oversee the Company and issue the necessary directives; |
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2. die Festlegung der Organisation; |
2. to determine the organization; |
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3. die Ausgestaltung des Rechnungswesens, der Finanzkontrolle sowie der Finanzplanung, sofern diese für die Führung der Gesellschaft notwendig ist; |
3. to organize the accounting, the financial control, as well as the financial planning; |
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4. die Ernennung und Abberufung der mit der Geschäftsführung und der Vertretung betrauten Personen, sowie die Erteilung der Zeichnungsberechtigungen; |
4. to appoint and remove the persons entrusted with the management and representation of the Company and to grant signatory power; |
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5. die Oberaufsicht über die mit der Geschäftsführung und der Vertretung betrauten Personen, namentlich im Hinblick auf die Befolgung der Gesetze, Statuten, Reglemente und Weisungen; |
5. to ultimately supervise the persons entrusted with the management, in particular with respect to compliance with the law and with the Articles of Association, regulations and directives; |
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6. die Erstellung des Geschäftsberichtes, des Vergütungsberichtes sowie die Vorbereitung der Generalversammlung und die Ausführung ihrer Beschlüsse; |
6. to prepare the business report, the compensation report as well as the General Meeting and to implement the latter’s resolutions; |
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7. die Benachrichtigung des Richters im Falle der Überschuldung; |
7. to inform the judge in the event of overindebtedness; |
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8. die Beschlussfassung über die nachträgliche Liberierung von nicht vollständig liberierten Aktien; |
8. to pass resolutions regarding the subsequent payment of capital with respect to non-fully paid-in shares; |
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9. die Beschlussfassung über die Feststellung von Kapitalerhöhungen und die entsprechenden Statutenänderungen; |
9. to pass resolutions confirming increases in share capital and regarding the amendments to the Articles of Association entailed thereby; |
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c) Der Bonus in bar wird unter Anwendung der obengenannten Kriterien und Rahmenbedingungen basierend auf Leistungen ausbezahlt, die grundsätzlich unter Zugrundelegung des einjährigen Zeitraums gemessen werden, auf den sich der Bonus in bar bezieht. |
c) The cash bonus is paid out based on achievements which are generally measured based on the one-year period to which the cash bonus relates, applying the above criteria and framework. |
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d) Der Umfang der Zuteilungen von Beteiligungsrechten (aktienbasierten Awards) mit langfristiger Anreizwirkung (long-term incentive) wird durch den Verwaltungsrat oder den Vergütungsausschuss festgelegt. Er kann aus Aktienoptionen, Aktien mit Veräusserungssperre, Performance-Aktien und sonstigen Beteiligungsinstrumenten bestehen, die gemäss einem Beteiligungsplan zulässig sind, welcher von der Generalversammlung mittels konsultativem oder bindendem Beschluss, wie vom anwendbaren Recht (inklusive den US-Wertschriftengesetzen) verlangt, genehmigt wurde. |
d) The amount of long-term incentive equity awards granted shall be determined by the Board of Directors or the Compensation Committee and may consist of stock options, restricted stock, performance shares or any other equity instruments permitted by an equity plan that has been approved by the General Meeting by a binding or advisory vote as required by applicable law (including U.S. securities laws). |
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e) Zuteilungen von Beteiligungsrechten (aktienbasierte Awards) stellen grundsätzlich Vergütungen im Jahr dar, in der gegebenenfalls die Performance zum Zwecke der Festlegung des Umfangs der Zuteilung gemessen wurde (d.h. wenn eine Zuteilung im Zusammenhang mit der Beurteilung der Performance im Vorjahr erfolgt, stellt diese Zuteilung Vergütung in Bezug auf dieses Vorjahr dar), oder andernfalls Vergütungen am Tag der Zuteilung dar. Sie sind grundsätzlich zu ihrem Fair Value am Zuteilungsdatum zu bewerten, wie vom Verwaltungsrat oder Vergütungsausschuss festgelegt. Wenn der Verwaltungsrat oder der Vergütungsausschuss es unter den gegebenen Umständen als angemessen erachtet, kann er bestimmen, dass eine Zuteilung oder ein Teil einer Zuteilung eine Vergütung in einem anderen Jahr darstellt und an einem anderen Datum bewertet wird (soweit dies nach anwendbarem Recht, inklusive den US-Wertschriftengesetzen, zulässig ist). |
e) Any equity awards generally constitute compensation for the year during which performance was measured in order to determine the size of the award, if applicable (i.e., if an award is granted in connection with review of prior-year performance, then such award shall constitute compensation with respect to such prior year), and otherwise at the date of grant. They shall be generally valued at their fair value at the date of grant as determined by the Board of Directors or the Compensation Committee. If the Board of Directors or the Compensation Committee deems it reasonable under the circumstances, it may determine that all or part of an award shall constitute variable compensation in a different year and be valued at a different date (to extent permitted by applicable law, including U.S. securities laws). |
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c) Mandate, die in verschiedenen Rechtseinheiten ein und desselben Konzerns oder auf Anordnung der Gesellschaft oder einer anderen Rechtseinheit gemäss Art. 26 lit. a) der Statuten gehalten werden (einschliesslich in Vorsorgeeinrichtungen und Gemeinschaftsunternehmen), zählen nicht als separate Mandate. Eine kurzfristige Überschreitung der in diesem Artikel geregelten Begrenzungen ist zulässig. |
c) Mandates held in different legal entities of the same group or by order of the Company or of another legal entity pursuant to Article 26(a) above (including in pension funds and joint ventures) shall not count as separate mandates. It is admissible to exceed the limitations set forth in this Article for a short period of time. |
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d) Ein “Mandat” im Sinne dieses Artikels ist ein Mandat in den obersten Leitungs- oder Verwaltungsorganen von Rechtseinheiten, die verpflichtet sind, sich ins Handelsregister oder in ein entsprechendes ausländisches Register eintragen zu lassen, mit Ausnahme der Gesellschaft und Rechtseinheiten, die durch die Gesellschaft kontrolliert werden oder diese kontrollieren. |
d) A “mandate” within the meaning of this Article shall mean a mandate in superior governing or administrative bodies of legal entities that are obliged to register themselves in the commercial registry or any comparable foreign register except for the Company and any entity controlled by, or controlling, the Company. |
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Artikel 27 Vereinbarungen mit der Geschäftsleitung und dem Verwaltungsrat |
Article 27 Agreements with Executive Management and the Board of Directors |
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a) Arbeits- und Dienstleistungsverträge mit Mitgliedern der Geschäftsleitung und, falls anwendbar, mit Mitgliedern des Verwaltungsrates sind in der Regel unbefristet und können eine Kündigungsfrist von bis zu 12 Monaten vorsehen. Falls der Verwaltungsrat oder einer seiner Ausschüsse zum Schluss gelangt, dass eine befristete Vertragsdauer angemessen ist, so übersteigt diese nicht 12 Monate.
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a) Any employment or service agreements of the members of the Executive Management and, if applicable, with members of the Board of Directors are as a general rule without fixed term and may provide for notice periods of up to 12 months. If the Board of Directors or any of its Committees comes to the conclusion that a fixed term is appropriate, the fixed term shall not exceed 12 months.
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b) Die Gesellschaft kann mit Mitgliedern der Geschäftsleitung entschädigte Konkurrenzverbote für eine Dauer von bis zu 2 Jahren nach der Beendigung des Arbeitsverhältnisses vereinbaren. Die Entschädigung, die pro Jahr des Konkurrenzverbots zu entrichten ist, beträgt maximal die Summe (i) der letzten jährlichen Grundvergütung des Mitglieds, (ii) des Durchschnitts der letzten drei tatsächlichen Jahresboni des Mitglieds, und (iii) der Prämienzahlungen für Kranken- und/oder Zahnversicherung basierend auf der Wahl des Mitglieds zur Zeit der Beendigung des Arbeitsverhältnisses. Zudem kann die Gesellschaft die Ausrichtung bestimmter Vergütungselemente, die mit in der Vergangenheit erbrachten Leistungen eines Mitglieds im Zusammenhang stehen, vom Abschluss und der Einhaltung eines Konkurrenzverbots abhängig machen, so insbesondere (i) die Ausrichtung eines pro rata Bonusbetrags für das Jahr, |
b) The Company may enter into compensated non-competition agreements with members of the Executive Management with a duration of up to 2 years after termination of the employment. The compensation payable for each year of the non-compete obligation shall not exceed the sum of (i) the last annual base salary of the member, (ii) the average of the member’s last three actual annual bonuses, and (iii) health and/or dental premium payments based upon the member’s elections in effect as of the termination. Furthermore, the Company may condition the payment of certain compensation items related to a member’s past services on the entering into and compliance with a non-competition agreement, including without limitation the payment of (i) a pro rata bonus |
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| V. Liquidation | V. Liquidation | |
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Artikel 30 Auflösung und Liquidation
a) Die Generalversammlung kann jederzeit in Übereinstimmung mit den gesetzlichen und statutarischen Bestimmungen die Auflösung und die Liquidation der Gesellschaft beschliessen. |
Article 30 Dissolution and Liquidation
a) The General Meeting may at any time resolve the dissolution and liquidation of the Company in accordance with the provisions of the law and of the Articles of Association. |
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b) Die Liquidation wird durch den Verwaltungsrat besorgt, sofern sie nicht durch einen Beschluss der Generalversammlung anderen Personen übertragen wird. |
b) The liquidation shall be carried out by the Board of Directors to the extent that the General Meeting has not entrusted the same to other persons. |
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c) Die Liquidation ist gemäss Art. 742 ff. OR durchzuführen. Dabei können die Liquidatoren über das Vermögen der Gesellschaft (einschliesslich Immobilien) durch privaten Rechtsakt verfügen. |
c) The liquidation of the Company shall take place in accordance with art. 742 et seq. of the Swiss Code of Obligations. The liquidators are authorized to dispose of the assets (including real estate) by way of private contract. |
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d) Das Vermögen der aufgelösten Gesellschaft wird nach Tilgung ihrer Schulden unter die Aktionäre nach Massgabe der einbezahlten Beträge verteilt. |
d) After all debts have been satisfied, the net proceeds shall be distributed among the shareholders in proportion to the amounts paid-in. |
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VI. Mitteilungen und Sprache der Statuten |
VI. Notices and Language of the Articles of Association |
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Artikel 31 Mitteilungen und Bekanntmachungen
a) Das Schweizerische Handelsamtsblatt ist das offizielle Publikationsmittel der Gesellschaft. |
Article 31 Communications and Announcements
a) The official means of publication of the Company shall be the “Schweizerisches Handelsamtsblatt”. |
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b) Mitteilungen der Gesellschaft an die Aktionäre sowie andere Bekanntmachungen erfolgen durch Publikation im “Schweizerisches Handelsamtsblatt”. |
b) Shareholder invitations and communications of the Company shall be published in the “Schweizerisches Handelsamtsblatt”. |
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Zürich, 14. Januar 2016 / Zurich, 14 January 2016
| /s/ Olivier Steimer |
| Olivier Steimer |
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Exhibit 4.1
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE dated as of January 15, 2016 is by and among ACE INA Holdings Inc., a corporation organized under the laws of the State of Delaware, (the “Successor Company”), The Chubb Corporation, a corporation organized under the laws of the State of New Jersey (the “Company”), ACE Limited, a company limited by shares ( Aktiengesellschaft ) under the laws of Switzerland (the “Guarantor”), 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 (the “Trustee”), under the Indenture referred to below.
WHEREAS, the Trustee and the Company are parties to that certain Indenture dated as of October 25, 1989 (the “Indenture”), pursuant to which the Company issued and has outstanding $600,000,000 aggregate principal amount of 5.75% notes due May 15, 2018, $100,000,000 aggregate principal amount of 6.6% debentures due August 15, 2018, $200,000,000 aggregate principal amount of 6.8% debentures due November 15, 2031, $800,000,000 aggregate principal amount of 6% notes due May 11, 2037 and $600,000,000 aggregate principal amount of 6.5% notes due May 15, 2038 (collectively, the “Securities”).
WHEREAS, as permitted by the terms of the Indenture, the Company, simultaneously with the effectiveness of this First Supplemental Indenture, shall merge (referred to herein for purposes of Article IX of the Indenture as the “Merger”) with and into the Successor Company with the Successor Company as the surviving corporation. The parties hereto are entering into this First Supplemental Indenture pursuant to, and in accordance with, Articles VIII and IX of the Indenture.
WHEREAS, as permitted by the terms of the Indenture, the Guarantor, simultaneously with the effectiveness of this First Supplemental Indenture, shall guarantee the Securities on the terms provided for in this First Supplemental Indenture.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the Trustee, the Company and the Successor Company hereby agree as follows:
Section 1. Definitions . All capitalized terms used herein that are defined in the Indenture, either directly or by reference therein, shall have the respective meanings assigned them in the Indenture except as otherwise provided herein or unless the context otherwise requires.
Section 2. Interpretation .
(a) In this First Supplemental Indenture, unless a clear contrary intention appears:
(i) the singular number includes the plural number and vice versa;
(ii) reference to any gender includes the other gender;
(iii) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this First Supplemental Indenture as a whole and not to any particular Section or other subdivision;
(iv) reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this First Supplemental Indenture or the Indenture, and reference to a Person in a particular capacity excludes such Person in any other capacity or individually provided that nothing in this clause (iv) is intended to authorize any assignment not otherwise permitted by this First Supplemental Indenture or the Indenture;
(v) reference to any agreement, document or instrument means such agreement, document or instrument as amended, supplemented or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof, as well as any substitution or replacement therefor and reference to any note includes modifications thereof and any note issued in extension or renewal thereof or in substitution or replacement therefor;
(vi) reference to any Section means such Section of this First Supplemental Indenture; and
(vii) the word “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term.
(b) No provision in this First Supplemental Indenture shall be interpreted or construed against any Person because that Person or its legal representative drafted such provision.
Section 3. Assumption of Obligations .
(a) Pursuant to, and in compliance and accordance with, Section 9.1 and Section 9.2 of the Indenture, the Successor Company hereby expressly assumes the due and punctual payment of the principal of and interest on all of the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of the Indenture to be performed or observed by the Company.
(b) Pursuant to, and in compliance and accordance with, Section 9.2 of the Indenture, the Successor Company succeeds to and is substituted for the Company, with the same effect as if the Successor Company had been named in the Indenture as the Company.
Section 4. The Guarantee .
(a) The Guarantor hereby unconditionally guarantees to each Holder of a Security the due and punctual payment of the principal of, any premium and interest on, and any Additional Amounts (as defined below) with respect to such Security, when and as the same shall become due and payable, whether at maturity, by acceleration, redemption, repayment or otherwise, in accordance with the terms of such Security and of the Indenture. In case of the failure of the Company or the Successor Company punctually to pay any such principal, premium, interest, or Additional Amounts, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at maturity, upon acceleration, redemption, repayment or otherwise, and as if such payment were made by the Company.
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(b)(i) All payments of principal of and premium, if any, interest and any other amounts on, or in respect of, the Securities shall be made by the Guarantor without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges, of whatever nature imposed or levied by or on behalf of the Cayman Islands, Bermuda or Switzerland (each, a “Taxing Jurisdiction”) or any political subdivision or taxing authority thereof or therein, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or ruling promulgated thereunder) of a Taxing Jurisdiction or any political subdivision or taxing authority thereof or therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including, without limitation, a holding by a court of competent jurisdiction or by a taxing authority in a Taxing Jurisdiction or any political subdivision thereof). If a withholding or deduction at source is required, the Guarantor shall, subject to certain limitations and exceptions set forth below, pay to the Holder of any such Security such additional amounts (“Additional Amounts”) as may be necessary so that every net payment of principal, premium, if any, interest or any other amount made to such Holder, after such withholding or deduction, shall not be less than the amount provided for in such Security and the Indenture to be then due and payable; provided, however, that the Guarantor shall not be required to make payment of such Additional Amounts for or on account of:
(A) any tax or governmental charge which would not have been imposed but for the fact that the Holder: (I) was a resident of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant Taxing Jurisdiction or otherwise had some connection with the relevant Taxing Jurisdiction other than the mere ownership of, or receipt of payment on, such Security; (II) presented such Security for payment in the relevant Taxing Jurisdiction, unless such Security could not have been presented for payment elsewhere; or (III) presented such Security for payment more than 30 days after the date on which the payment became due unless the Holder would have been entitled to such Additional Amounts if it had presented such Security for payment within the 30-day period;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax or other governmental charge;
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(C) any tax or other governmental charge that is imposed or withheld because of failure by the Holder of this Note to comply with any reasonable request by the Guarantor addressed to the Holder (I) to provide information concerning the nationality, residence or identity of the Holder or that of the beneficial owner of such Security; or (II) to make any claim or satisfy any information or reporting requirement, which in either case is required by the relevant Taxing Jurisdiction as a precondition to exemption from all or part of the tax or other governmental charge;
(D) any tax imposed on payments on such Security under sections 1471 through 1474 of the U.S. Internal Revenue Code of 1956, as amended (the “Internal Revenue Code”), any current or future regulations thereunder and official interpretations thereof, any agreements entered into pursuant to section 1471(b)(1) of the Internal Revenue Code and any fiscal or regulatory legislation, rules or official practices adopted pursuant to any published intergovernmental agreement entered into in connection with the implementation of such sections of the Internal Revenue Code; or
(E) any combination of items (A), (B), (C) or (D) above.
nor shall Additional Amounts be paid with respect to any payment of the principal of or premium, if any, interest or any other amounts on, any such Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such Security to the extent such payment would be required by the laws of the relevant Taxing Jurisdiction (or any political subdivision or relevant taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or partner or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such Additional Amounts had it been the Holder of the Security.
(ii) Whenever in the Indenture or this First Supplemental Indenture there is mentioned, in any context, the payment of the principal of or any premium, interest or any other amounts on, or in respect of any Security, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of this Fist Supplemental Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding the payment of Additional Amounts in those provisions where such express mention is not made.
(iii) At least 10 days prior to the first interest payment date with respect to a series of Securities, and at least 10 days prior to each date of payment of principal or interest if there has been any change with respect to the matters set forth in the below-mentioned Guarantor’s Officer’s Certificate, the Guarantor shall furnish to the Trustee and the principal paying agent or paying agents, if other than the Trustee, a certificate signed by the Chairman of the Guarantor’s Board of Directors, a Vice Chairman, the President, the Chief Financial Officer, the Chief Investment Officer, the Chief Accounting Officer, the General Counsel or the Secretary of the Guarantor, that complies with the requirements of Section 314(e) of the Trustee Indenture Act (a “Guarantor’s Officer’s Certificate”) instructing the Trustee and such paying agent or paying agents whether such payment of principal of and premium, if any, interest or any other amounts on the Securities of such series shall be made to Holders of Securities of such series without withholding for or on account of any tax, fee, duty, assessment or other governmental charge described in this Section 4(b). If any such withholding shall be required, then such Guarantor’s Officer’s Certificate shall, specify by Taxing Jurisdiction the amount, if any, required to be withheld on such payments to such Holders of Securities, and the Guarantor agrees to pay to the Trustee or such paying agent the Additional Amounts required by this Section 4(b). The Guarantor covenants to indemnify the Trustee and any paying agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Guarantor’s Officer’s Certificate furnished pursuant to this Section 4(b)(ii).
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(c) The Guarantor hereby agrees that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute, irrevocable and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Security, this First Supplemental Indenture or the Indenture, any failure to enforce the provisions of any Security, this First Supplemental Indenture or the Indenture, or any waiver, modification, consent or indulgence granted with respect thereto by the Holder of such Security or the Trustee, the recovery of any judgment against the Company or the Successor Company or any action to enforce the same, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the Company or the Successor Company, any right to require a proceeding first against the Company or the Successor Company, protest or notice with respect to any such Security or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged except by payment in full of the principal of, any premium and interest on, and any Additional Amounts required with respect to, the Securities and the complete performance of all other obligations contained in the Securities. The Guarantor further agrees, to the fullest extent that it lawfully may do so, that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 5.1 of the Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or prohibition extant under any bankruptcy, insolvency, reorganization or other similar law of any jurisdiction preventing such acceleration in respect of the obligations guaranteed hereby.
(d) This Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment on any Security, in whole or in part, is rescinded or must otherwise be restored to the Company, the Successor Company or the Guarantor upon the bankruptcy, liquidation or reorganization of the Company, the Successor Company or otherwise.
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(e) The Guarantor shall be subrogated to all rights of the Holder of any Security against the Company or the Successor Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of, any premium and interest on, and any Additional Amounts and sinking fund payments required with respect to, all Securities shall have been paid in full.
(f) As a separate and alternative stipulation, the Guarantor unconditionally and irrevocably agrees that any sum expressed to be payable by the Company or the Successor Company under the Securities but which is for any reason (whether or not now known or becoming known to the Company, the Successor Company the Guarantor, the Trustee or any Holder of any Security) not recoverable from the Guarantor on the basis of a guarantee will nevertheless be recoverable from it as if it were the sole principal debtor and will be paid by it to the Trustee on demand. This indemnity constitutes a separate and independent obligation from the other obligations in this First Supplemental Indenture, gives rise to a separate and independent cause of action and will apply irrespective of any indulgence granted by the Trustee or any Holder of any Security.
Section 5. Representations and Warranties .
(a) The Successor Company represents and warrants that (i) it has all necessary power and authority to execute and deliver this First Supplemental Indenture and to perform the Indenture, (ii) that it is the successor of the Company pursuant to the Merger effected in accordance with applicable law, (iii) that it is a corporation organized and existing under the laws of the State of Delaware, (iv) that both immediately before and after giving effect to the Merger and this First Supplemental Indenture, no Default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, has occurred and is continuing and (v) that this First Supplemental Indenture is executed and delivered pursuant to Section 8.1(b) and Article IX of the Indenture and does not require the consent of the Securityholders.
(b) The Guarantor represents and warrants that (i) it has all necessary power and authority to execute and deliver this First Supplemental Indenture, (ii) that it is a company limited by shares ( Aktiengesellschaft ) under the laws of Switzerland and (iii) that this First Supplemental Indenture is executed and delivered pursuant to Section 8.1(d) of the Indenture and does not require the consent of the Securityholders.
Section 6. Conditions of Effectiveness . This First Supplemental Indenture shall become effective simultaneously with the effectiveness of the Merger, provided, however, that:
(a) the Trustee shall have executed a counterpart of this First Supplemental Indenture and shall have received one or more counterparts of this First Supplemental Indenture executed by the Company, the Successor Company and the Guarantor;
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(b) the Trustee shall have received an Officers’ Certificate stating that (i) this First Supplemental Indenture complies with the requirements of Article VIII of the Indenture; and (ii) in the opinion of the signers, all conditions precedent, if any, provided for in the Indenture relating to the Merger and this First Supplemental Indenture have been complied with;
(c) the Trustee shall have received an Opinion of Counsel to the effect that (i) all conditions precedent provided for in the Indenture relating to the Merger and this First Supplemental Indenture have been complied with; (ii) this First Supplemental Indenture complies with the requirements of Article VIII of the Indenture and is authorized or permitted by, and conforms to, the terms of Article VIII of the Indenture; (iii) it is proper for the Trustee, under the provisions of Article VIII of the Indenture, to join in the execution of this First Supplemental Indenture; and (iv) the Merger and the assumption by the Successor Company under this First Supplemental Indenture comply with the provisions of Article IX of the Indenture; and
(d) the Successor Company and the Company shall have duly executed and filed with the Secretaries of State of the States of Delaware and New Jersey Certificates of Merger in connection with the Merger.
Section 7. Reference to the Indenture .
(a) Upon the effectiveness of this First Supplemental Indenture, each reference in the Indenture to “this Indenture,” “hereunder,” “herein” or words of like import shall mean and be a reference to the Indenture, as affected, amended and supplemented hereby.
(b) Upon the effectiveness of this First Supplemental Indenture, each reference in the Debt Securities to the Indenture including each term defined by reference to the Indenture shall mean and be a reference to the Indenture or such term, as the case may be, as affected, amended and supplemented hereby.
(c) The Indenture, as amended and supplemented hereby shall remain in full force and effect and is hereby ratified and confirmed.
Section 8. Execution in Counterparts . This First Supplemental Indenture may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument.
Section 9. Governing Law; Binding Effect . This First Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York and shall be binding upon the parties hereto and their respective successors and assigns.
Section 10. The Trustee . The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this First Supplemental Indenture or the due execution thereof by the Company or the Successor Company. The recitals of fact contained herein shall be taken as the statements solely of the Company or the Successor Company, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this First Supplemental Indenture. In no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
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Section 11. Submission to Jurisdiction . The Company, the Successor Company and the Guarantor each agrees that any judicial proceedings instituted in relation to any matter arising under the Indenture, this First Supplemental Indenture or the Securities may be brought in any United States Federal or New York State court sitting in the Borough of Manhattan, The City of New York, New York to the extent that such court has subject matter jurisdiction over the controversy, and, by execution and delivery of this First Supplemental Indenture, the Company, the Successor Company and the Guarantor each hereby irrevocably accepts, generally and unconditionally, the jurisdiction of the aforesaid courts, acknowledges their competence and irrevocably agrees to be bound by any judgment rendered in such proceeding. The Company, the Successor Company and the Guarantor each also irrevocably and unconditionally waives for the benefit of the Trustee and the Holders of the Securities any immunity from jurisdiction and any immunity from legal process (whether through service or notice, attachment prior to judgment, attachment in the aid of execution, execution or otherwise) in respect of the Indenture and this First Supplemental Indenture. The Company, the Successor Company and the Guarantor each hereby irrevocably designates and appoints for the benefit of the Trustee and the Holders of the Securities for the term of the Indenture and this First Supplemental Indenture ACE Group Holdings, Inc., 1133 Avenue of the Americas, 32 nd Floor, New York, New York 10036, as its agent to receive on its behalf service of all process (with a copy of all such service of process to be delivered to the General Counsel and Secretary, ACE Limited, Baerengasse 32, CH-8001 Zurich, Switzerland) brought against it with respect to any such proceedings in any such court in The City of New York, such service being hereby acknowledged by each of the Company, the Successor Company and the Guarantor to be effective and binding service on it in every respect whether or not the Company, the Successor Company or the Guarantor, as the case may be, shall then be doing or shall have at any time done business in New York. Such appointment shall be irrevocable so long as any of the Securities or the respective obligations of the Company, the Successor Company and the Guarantor under the Indenture or this First Supplemental Indenture remain outstanding, or until the appointment of a successor by the Company, the Successor Company or the Guarantor, as the case may be, and such successor’s acceptance of such appointment. Upon such acceptance, the Company, the Successor Company or the Guarantor, as the case may be, shall notify the Trustee of the name and address of such successor. The Company, the Successor Company and the Guarantor each further agrees for the benefit of the Trustee and the Holders of the Securities to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of said ACE Group Holdings, Inc. in full force and effect so long as any of the Securities or the respective obligations of the Company, the Successor Company and the Guarantor under the Indenture or this First Supplemental Indenture shall be outstanding. The Trustee shall not be obligated and shall have no responsibility with respect to any failure by the Company, the Successor Company or the Guarantor to take any such action. Nothing herein shall affect the right to serve process in any other manner permitted by any law or limit the right of the Trustee or any Holder to institute proceedings against the Company, the Successor Company or the Guarantor in the courts of any other jurisdiction or jurisdictions.
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Section 12. Waiver of Jury Trial . EACH OF THE COMPANY, THE SUCCESSOR COMPANY, THE GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE, THE INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 13. Force Majeure . In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
[Remainder of page intentionally left blank; signatures appear on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the day and year first written above.
| THE CHUBB CORPORATION | ||
| By: |
/ S / K ENNETH K OREYVA |
|
| Name: | Kenneth Koreyva | |
| Title: | President and Treasurer | |
| ACE INA HOLDINGS INC. | ||
| By: |
/ S / K ENNETH K OREYVA |
|
| Name: | Kenneth Koreyva | |
| Title: | Chief Financial Officer | |
| ACE LIMITED | ||
| By: |
/ S / P HILIP V. B ANCROFT |
|
| Name: | Philip V. Bancroft | |
| Title: | Chief Financial Officer | |
| THE BANK OF NEW YORK MELLON TRUST | ||
|
COMPANY, N.A., not in its individual capacity, but solely as Trustee |
||
| By: |
/ S / T ERESA P ETTA |
|
| Name: | Teresa Petta | |
| Title: | Vice President | |
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Exhibit 4.2
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE dated as of January 15, 2016 is by and among ACE INA Holdings Inc., a corporation organized under the laws of the State of Delaware, (the “Successor Company”), The Chubb Corporation, a corporation organized under the laws of the State of New Jersey (the “Company”), ACE Limited, a company limited by shares ( Aktiengesellschaft ) under the laws of Switzerland (the “Guarantor”), and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), under the Indenture referred to below.
WHEREAS, the Trustee and the Company are parties to that certain Indenture, dated as of March 29, 2007 (the “Indenture”), as amended and supplemented by the First Supplemental Indenture, dated as of March 29, 2007, between the Company and the Trustee, pursuant to which the Company issued and has outstanding $1,000,000,000 aggregate principal amount of 6.375% capital securities due March 29, 2067 (collectively, the “Securities”).
WHEREAS, as permitted by the terms of the Indenture, the Company, simultaneously with the effectiveness of this Second Supplemental Indenture, shall merge (referred to herein for purposes of Article Eight of the Indenture as the “Merger”) with and into the Successor Company with the Successor Company as the surviving corporation. The parties hereto are entering into this Second Supplemental Indenture pursuant to, and in accordance with, Articles Eight and Nine of the Indenture.
WHEREAS, as permitted by the terms of the Indenture, the Guarantor, simultaneously with the effectiveness of this Second Supplemental Indenture, shall guarantee the Securities on the terms provided for in this Second Supplemental Indenture.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the Trustee, the Company and the Successor Company hereby agree as follows:
Section 1. Definitions . All capitalized terms used herein that are defined in the Indenture, either directly or by reference therein, shall have the respective meanings assigned them in the Indenture except as otherwise provided herein or unless the context otherwise requires.
Section 2. Interpretation .
(a) In this Second Supplemental Indenture, unless a clear contrary intention appears:
(i) the singular number includes the plural number and vice versa;
(ii) reference to any gender includes the other gender;
(iii) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Second Supplemental Indenture as a whole and not to any particular Section or other subdivision;
(iv) reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Second Supplemental Indenture or the Indenture, and reference to a Person in a particular capacity excludes such Person in any other capacity or individually provided that nothing in this clause (iv) is intended to authorize any assignment not otherwise permitted by this Second Supplemental Indenture or the Indenture;
(v) reference to any agreement, document or instrument means such agreement, document or instrument as amended, supplemented or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof, as well as any substitution or replacement therefor and reference to any note includes modifications thereof and any note issued in extension or renewal thereof or in substitution or replacement therefor;
(vi) reference to any Section means such Section of this Second Supplemental Indenture; and
(vii) the word “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term.
(b) No provision in this Second Supplemental Indenture shall be interpreted or construed against any Person because that Person or its legal representative drafted such provision.
Section 3. Assumption of Obligations .
(a) Pursuant to, and in compliance and accordance with, Section 801 and Section 802 of the Indenture, the Successor Company hereby expressly assumes the due and punctual payment of the principal of (and premium, if any) and interest (including any Additional Interest) on all the Securities and the performance of every covenant and condition of the Indenture on the part of the Company to be performed or observed.
(b) Pursuant to, and in compliance and accordance with, Section 802 of the Indenture, the Successor Company succeeds to, and is substituted for, and may exercise every right and power of, the Company under the Indenture, with the same effect as if the Successor Company had been named as the Company in the Indenture.
Section 4. The Guarantee .
(a) Subject to Section 5, the Guarantor hereby unconditionally guarantees to each Holder of a Security the due and punctual payment of the principal of, any premium and interest on, and any Additional Amounts (as defined below) with respect to such Security, when and as the same shall become due and payable, whether at maturity, by acceleration, redemption, repayment or otherwise, in accordance with the terms of such Security and of the Indenture. In case of the failure of the Company or the Successor Company punctually to pay any such principal, premium, interest, or Additional Amounts, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at maturity, upon acceleration, redemption, repayment or otherwise, and as if such payment were made by the Company.
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(b)(i) All payments of principal of and premium, if any, interest and any other amounts on, or in respect of, the Securities shall be made by the Guarantor without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges, of whatever nature imposed or levied by or on behalf of the Cayman Islands, Bermuda or Switzerland (each, a “Taxing Jurisdiction”) or any political subdivision or taxing authority thereof or therein, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or ruling promulgated thereunder) of a Taxing Jurisdiction or any political subdivision or taxing authority thereof or therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including, without limitation, a holding by a court of competent jurisdiction or by a taxing authority in a Taxing Jurisdiction or any political subdivision thereof). If a withholding or deduction at source is required, the Guarantor shall, subject to certain limitations and exceptions set forth below, pay to the Holder of any such Security such additional amounts (“Additional Amounts”) as may be necessary so that every net payment of principal, premium, if any, interest or any other amount made to such Holder, after such withholding or deduction, shall not be less than the amount provided for in such Security and the Indenture to be then due and payable; provided, however, that the Guarantor shall not be required to make payment of such Additional Amounts for or on account of:
(A) any tax or governmental charge which would not have been imposed but for the fact that the Holder: (I) was a resident of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant Taxing Jurisdiction or otherwise had some connection with the relevant Taxing Jurisdiction other than the mere ownership of, or receipt of payment on, such Security; (II) presented such Security for payment in the relevant Taxing Jurisdiction, unless such Security could not have been presented for payment elsewhere; or (III) presented such Security for payment more than 30 days after the date on which the payment became due unless the Holder would have been entitled to such Additional Amounts if it had presented such Security for payment within the 30-day period;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax or other governmental charge;
(C) any tax or other governmental charge that is imposed or withheld because of failure by the Holder of this Note to comply with any reasonable request by the Guarantor addressed to the Holder (I) to provide information concerning the nationality, residence or identity of the Holder or that of the beneficial owner of such Security; or (II) to make any claim or satisfy any information or reporting requirement, which in either case is required by the relevant Taxing Jurisdiction as a precondition to exemption from all or part of the tax or other governmental charge;
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(D) any tax imposed on payments on such Security under sections 1471 through 1474 of the U.S. Internal Revenue Code of 1956, as amended (the “Internal Revenue Code”), any current or future regulations thereunder and official interpretations thereof, any agreements entered into pursuant to section 1471(b)(1) of the Internal Revenue Code and any fiscal or regulatory legislation, rules or official practices adopted pursuant to any published intergovernmental agreement entered into in connection with the implementation of such sections of the Internal Revenue Code; or
(E) any combination of items (A), (B), (C) or (D) above.
nor shall Additional Amounts be paid with respect to any payment of the principal of or premium, if any, interest or any other amounts on, any such Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such Security to the extent such payment would be required by the laws of the relevant Taxing Jurisdiction (or any political subdivision or relevant taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or partner or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such Additional Amounts had it been the Holder of the Security.
(ii) Whenever in the Indenture or this Second Supplemental Indenture there is mentioned, in any context, the payment of the principal of or any premium, interest or any other amounts on, or in respect of any Security, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of this Fist Supplemental Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding the payment of Additional Amounts in those provisions where such express mention is not made.
(iii) At least 10 days prior to the first interest payment date with respect to a series of Securities, and at least 10 days prior to each date of payment of principal or interest if there has been any change with respect to the matters set forth in the below-mentioned Guarantor’s Officer’s Certificate, the Guarantor shall furnish to the Trustee and the principal paying agent or paying agents, if other than the Trustee, a certificate signed by the Chairman of the Guarantor’s Board of Directors, a Vice Chairman, the President, the Chief Financial Officer, the Chief Investment Officer, the Chief Accounting Officer, the General Counsel or the Secretary of the Guarantor, that complies with the requirements of Section 314(e) of the Trustee Indenture Act (a “Guarantor’s Officer’s Certificate”) instructing the Trustee and such paying agent or paying agents whether such payment of principal of and premium, if any, interest or any other amounts on the Securities of such series shall be made to Holders of Securities of such series without withholding for or on account of any tax, fee, duty, assessment or other governmental charge described in this Section 4(b). If any such withholding shall be required, then such Guarantor’s Officer’s Certificate shall, specify by Taxing Jurisdiction the amount, if any, required to be withheld on such payments to such Holders of Securities, and the Guarantor agrees to pay to the Trustee or such paying agent the Additional Amounts required by this Section 4(b). The Guarantor covenants to indemnify the Trustee and any paying agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Guarantor’s Officer’s Certificate furnished pursuant to this Section 4(b)(ii).
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(c) The Guarantor hereby agrees that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute, irrevocable and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Security, this Second Supplemental Indenture or the Indenture, any failure to enforce the provisions of any Security, this Second Supplemental Indenture or the Indenture, or any waiver, modification, consent or indulgence granted with respect thereto by the Holder of such Security or the Trustee, the recovery of any judgment against the Company or the Successor Company or any action to enforce the same, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the Company or the Successor Company, any right to require a proceeding first against the Company or the Successor Company, protest or notice with respect to any such Security or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged except by payment in full of the principal of, any premium and interest on, and any Additional Amounts required with respect to, the Securities and the complete performance of all other obligations contained in the Securities. The Guarantor further agrees, to the fullest extent that it lawfully may do so, that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 502 of the Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or prohibition extant under any bankruptcy, insolvency, reorganization or other similar law of any jurisdiction preventing such acceleration in respect of the obligations guaranteed hereby.
(d) This Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment on any Security, in whole or in part, is rescinded or must otherwise be restored to the Company, the Successor Company or the Guarantor upon the bankruptcy, liquidation or reorganization of the Company, the Successor Company or otherwise.
(e) The Guarantor shall be subrogated to all rights of the Holder of any Security against the Company or the Successor Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of, any premium and interest on, and any Additional Amounts and sinking fund payments required with respect to, all Securities shall have been paid in full.
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(f) As a separate and alternative stipulation, the Guarantor unconditionally and irrevocably agrees that any sum expressed to be payable by the Company or the Successor Company under the Securities but which is for any reason (whether or not now known or becoming known to the Company, the Successor Company the Guarantor, the Trustee or any Holder of any Security) not recoverable from the Guarantor on the basis of a guarantee will nevertheless be recoverable from it as if it were the sole principal debtor and will be paid by it to the Trustee on demand. This indemnity constitutes a separate and independent obligation from the other obligations in this Second Supplemental Indenture, gives rise to a separate and independent cause of action and will apply irrespective of any indulgence granted by the Trustee or any Holder of any Security.
Section 5. Subordination of Guarantee .
(a) The Guarantor covenants and agrees, and each Holder of a Security, by such Holder’s acceptance of the Guarantee provided in Section 4 hereof agrees, that all Securities shall be subject to the provisions of this Section 5; and each Holder of a Security, by its acceptance of the Guarantee, accepts and agrees to be bound by such provisions.
The payment by the Guarantor pursuant to the Guarantee of the principal of, any premium and interest on, any Additional Amounts with respect to the Securities shall, to the extent and in the manner hereinafter set forth, be subordinate in right of payment to the prior payment in full of all Guarantor Senior Indebtedness, whether outstanding at the date of this Second Supplemental Indenture or thereafter incurred.
For purposes of this Section 5, “Guarantor Senior Indebtedness” means all Indebtedness (as defined below) of the Guarantor outstanding at any time, except (a) the Guarantor’s obligations under the Guarantee in respect of the Securities, (b) Indebtedness as to which, by the terms of the instrument creating or evidencing the same, it is provided that such Indebtedness is subordinated to or pari passu with the Guarantor’s obligations under the Guarantee in respect of the Securities, (c) Indebtedness of the Guarantor to an Affiliate of the Guarantor, (d) interest accruing after the filing of a petition initiating any proceeding relating to the Guarantor under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) law unless such interest is an allowed claim enforceable against the Guarantor in a proceeding under federal or state bankruptcy laws and (e) trade accounts payable.
For purposes of this Section 5, “Indebtedness” means, with respect to the Guarantor, (i) the principal of and any premium and interest on (a) indebtedness of the Guarantor for money borrowed and (b) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which the Guarantor is responsible or liable; (ii) all obligations of the Guarantor under leases that are required to be capitalized for financial reporting purposes in accordance with generally accepted accounting principles (the amount of Indebtedness represented by such obligation shall be the capitalized amount of such obligation determined in accordance with such principles; (iii) all obligations of the Guarantor issued or assumed as the deferred purchase price of property, all conditional sale obligations and all obligations under any title retention agreement (but excluding trade accounts payable arising in the ordinary course of business); (iv) all obligations of the Guarantor for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction (other than obligations with respect to letters of credit securing obligations (other than obligations described in (i) through (iii) above) entered into in the ordinary course of business of the Guarantor to the extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the third Business Day following receipt by the Guarantor of a demand for reimbursement following payment on the letter of credit); (v) all obligations of the type referred to in clauses (i) through (iv) of other Persons and all dividends of other Persons for the payment of which, in either case, the Guarantor is responsible or liable as obligor, guarantor or otherwise; (vi) all obligations of the type referred to in clauses (i) through (v) of other Persons secured by any Lien on any property or asset of the Guarantor (whether or not such obligation is assumed by the Guarantor), the amount of such obligation being deemed to be the lesser of the value of such property or assets or the amount of the obligation so secured; and (vii) any amendments, modifications, refundings, renewals or extensions of any indebtedness or obligation described as Indebtedness in clauses (i) through (vi) above.
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No provision of this Section 5 shall prevent the occurrence of any default or Event of Default under the Indenture.
(b) In the event and during the continuation of any default by the Guarantor in the payment of principal, premium, interest or any other amount due on any Guarantor Senior Indebtedness, or in the event that the maturity of any Guarantor Senior Indebtedness has been accelerated because of a default, then, in either case, no payment shall be made by the Guarantor pursuant to the Guarantee with respect to the principal (including redemption payments) of, any premium or interest on, or any Additional Amounts with respect to, the Securities.
In the event that, notwithstanding the foregoing, any payment shall be received by the Trustee when such payment is prohibited by the preceding paragraph of this Section 5(b), such payment shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of such Guarantor Senior Indebtedness or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any of such Guarantor Senior Indebtedness may have been issued, as their respective interests may appear, but only to the extent that the holders of such Guarantor Senior Indebtedness (or their representative or representatives or a trustee) notify the Trustee in writing within 90 days of such payment of the amounts then due and owing on such Guarantor Senior Indebtedness and only the amounts specified in such notice to the Trustee shall be paid to the holders of such Guarantor Senior Indebtedness.
(c) Upon any payment by the Guarantor or distribution of assets of the Guarantor of any kind or character, whether in cash, property or securities, to creditors upon any dissolution, winding-up, liquidation or reorganization of the Guarantor, whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or other proceedings, all amounts due upon all Guarantor Senior Indebtedness shall first be paid in full, or payment thereof provided for in money in accordance with its terms, before any payment is made by the Guarantor pursuant to the Guarantee on account of the principal of, premium or interest on, or Additional Amounts with respect to, the Securities; and upon any such dissolution, winding-up, liquidation or reorganization, or in any such bankruptcy, insolvency, receivership or other proceeding, any payment by the Guarantor, or distribution of assets of the Guarantor of any kind or character, whether in cash, property or securities, to which the Holders or the Trustee would be entitled to receive from the Guarantor, except for the provisions of this Section 5, shall be paid by the Guarantor or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders or by the Trustee under the Indenture if received by them or it, directly to the holders of such Guarantor Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of such Guarantor Senior Indebtedness held by such holders, as calculated by the Guarantor) or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Guarantor Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay such Guarantor Senior Indebtedness in full, in money or money’s worth, after giving effect to any concurrent payment or distribution to or for the holders of such Guarantor Senior Indebtedness, before any payment or distribution is made pursuant to the Guarantee to the Holders of the Securities or to the Trustee.
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In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Guarantor pursuant to the Guarantee of any kind or character, whether in cash, property or securities, prohibited by the foregoing shall be received by the Trustee before all such Guarantor Senior Indebtedness is paid in full, or provision is made for such payment in money in accordance with its terms, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of such Guarantor Senior Indebtedness or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Guarantor Senior Indebtedness may have been issued, as their respective interests may appear, as calculated by the Guarantor, for application to the payment of all such Guarantor Senior Indebtedness remaining unpaid to the extent necessary to pay such Guarantor Senior Indebtedness in full in money in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of such Guarantor Senior Indebtedness.
For purposes of this Section 5, the words “cash, property or securities” shall not be deemed to include shares of stock of the Guarantor as reorganized or readjusted, or securities of the Guarantor or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Section 5 with respect to the Guarantee to the payment of all Guarantor Senior Indebtedness, provided that (i) such Guarantor Senior Indebtedness is assumed by the new corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of such Guarantor Senior Indebtedness are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Guarantor with, or the merger of the Guarantor into, another Person or the liquidation or dissolution of the Guarantor following the conveyance, transfer or lease of its property as an entirety, or substantially as an entirety, to another Person shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 5(c) if such other Person shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Sections 801 and 802 of the Indenture as if they applied to the Guarantor mutatis mutandis . Nothing in Section 5(b) or in this Section 5(c) shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.6 of the Indenture.
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(d) Subject to the payment in full of all Guarantor Senior Indebtedness, the rights of the Holders of the Securities shall be subrogated to the rights of the holders of such Guarantor Senior Indebtedness to receive payments or distributions of cash, property or securities of the Guarantor applicable to such Guarantor Senior Indebtedness until the principal of, any premium and interest on, and any Additional Amounts with respect to, the Securities shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to the holders of such Guarantor Senior Indebtedness of any cash, property or securities to which the Holders or the Trustee would be entitled except for the provisions of this Section 5, and no payment over pursuant to the provisions of this Section 5 to or for the benefit of the holders of such Guarantor Senior Indebtedness by Holders of the Securities or the Trustee, shall, as between the Guarantor, its creditors other than holders of such Guarantor Senior Indebtedness, and the Holders of the Securities, be deemed to be a payment by the Guarantor to or on account of such Guarantor Senior Indebtedness. It is understood that the provisions of this Section 5 are and are intended solely for the purposes of defining the relative rights of the Holders of the Securities, on the one hand, and the holders of such Guarantor Senior Indebtedness on the other hand.
Nothing contained in this Section 5 or elsewhere in this Second Supplemental Indenture, the Indenture or in the Securities is intended to or shall impair, as between the Guarantor, its creditors other than the holders of Guarantor Senior Indebtedness, and the Holders of the Securities, the obligation of the Guarantor, which is absolute and unconditional, to pay to the Holders of the Securities pursuant to the Guarantee the principal of, any premium and interest on, and any Additional Amounts with respect to, the Securities as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders of the Securities and creditors of the Guarantor, other than the holders of such Guarantor Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under the Indenture, subject to the rights, if any, under this Section 5 of the holders of such Guarantor Senior Indebtedness in respect of cash, property or securities of the Guarantor, as the case may be, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Guarantor referred to in this Section 5, the Trustee, subject to the provisions of Article Six of the Indenture, and the Holders shall be entitled to conclusively rely upon any order or decree made by any court of competent jurisdiction in which such dissolution, winding-up, liquidation or reorganization proceedings are pending, or a certificate of the receiver, trustee in bankruptcy, liquidation trustee, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of the Securities, for the purposes of ascertaining the Persons entitled to participate in such distribution, the holders of Guarantor Senior Indebtedness and other indebtedness of the Guarantor, as the case may be, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Section 5.
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(e) Each Holder of Securities by such Holder’s acceptance of the Guarantee authorizes and directs the Trustee on such Holder’s behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Section 5 and appoints the Trustee such Holder’s attorney-in-fact for any and all such purposes.
(f) The Guarantor shall give prompt written notice to a Responsible Officer of the Trustee of any fact known to the Guarantor that would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities of any series pursuant to the provisions of this Section 5. Notwithstanding the provisions of this Section 5 or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the provisions of this Section 5, unless and until a Responsible Officer of the Trustee shall have received written notice thereof from the Guarantor or a holder or holders of Guarantor Senior Indebtedness or from any trustee therefor; and before the receipt of any such written notice, the Trustee, subject to the provisions of Article 6 of the Indenture, shall be entitled in all respects to assume that no such facts exist; provided, however, that if the Trustee shall not have received the notice provided for in this Section 5(f) at least two Business Days prior to the date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment pursuant to the Guarantee of the principal of, any premium or interest on, or any Additional Amounts with respect to, any Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purposes for which they were received, and shall not be affected by any notice to the contrary that may be received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Article Six of the Indenture, shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be a holder of Guarantor Senior Indebtedness (or a trustee on behalf of such holder), to establish that such notice has been given by a holder of such Guarantor Senior Indebtedness or a trustee on behalf of any such holder or holders. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of such Guarantor Senior Indebtedness to participate in any payment or distribution pursuant to this Section 5, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of such Guarantor Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this section 5, and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
Upon any payment or distribution of assets of the Guarantor referred to in this Section 5, the Trustee and the Holders shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of the Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of Guarantor Senior Indebtedness and other indebtedness of the Guarantor, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Section 5.
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(g) The Trustee in its individual capacity shall be entitled to all the rights set forth in this Section 5 in respect of any Guarantor Senior Indebtedness at any time held by it, to the same extent as any other holder of such Guarantor Senior Indebtedness, and nothing in this Second Supplemental Indenture or the Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Guarantor Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Section 5, and no implied covenants or obligations with respect to the holders of such Guarantor Senior Indebtedness shall be read into this Second Supplemental Indenture or the Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of such Guarantor Senior Indebtedness and, subject to the provisions of Article Six of the Indenture, the Trustee shall not be liable to any holder of such Guarantor Senior Indebtedness if it shall pay over or deliver to Holders of the Securities, the Guarantor or any other Person mistakenly or otherwise money or assets to which any holder of such Guarantor Senior Indebtedness shall be entitled by virtue of this Section 5 or otherwise.
Nothing in this Section 5 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.6 of the Indenture.
(h) No right of any present or future holder of any Guarantor Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Guarantor, or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Guarantor with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the holders of Guarantor Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of the Securities, without incurring responsibility to such Holders and without impairing or releasing the subordination provided in this Section 5 or the obligations hereunder of the Holders of the Securities to the holders of such Guarantor Senior Indebtedness, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, such Guarantor Senior Indebtedness, or otherwise amend or supplement in any manner such Guarantor Senior Indebtedness or any instrument evidencing the same or any agreement under which such Guarantor Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing such Guarantor Senior Indebtedness; (iii) release any Person liable in any manner for the collection of such Guarantor Senior Indebtedness; and (iv) exercise or refrain from exercising any rights against the Guarantor and any other Person.
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Section 6. Amendment of Indenture .
The definition of “Senior Indebtedness” in Section 101 of the Indenture is hereby amended to exclude from such definition any Indebtedness (the “ACE Subordinated Indebtedness”) issued under the indenture, dated as of December 1, 1999, among the Successor Company, the Guarantor and The Bank of New York Mellon Trust Company, N.A. (as successor), as trustee, it being the intention of this Second Supplemental Indenture that the ACE Subordinated Indebtedness and the Securities shall rank pari passu with each other and that the Guarantor’s guarantee of the ACE Subordinated Indebtedness and the Guarantee provided in this Second Supplemental Indenture shall rank pari passu with each other.
Section 7. Representations and Warranties .
(a) The Successor Company represents and warrants that (i) it has all necessary power and authority to execute and deliver this Second Supplemental Indenture and to perform the Indenture, (ii) that it is the successor of the Company pursuant to the Merger effected in accordance with applicable law, (iii) that it is a corporation organized and existing under the laws of the State of Delaware, (iv) that both immediately before and after giving effect to the Merger and this Second Supplemental Indenture, no Default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, has occurred and is continuing and (v) that this Second Supplemental Indenture is executed and delivered pursuant to Section 901(1) and Article Eight of the Indenture and does not require the consent of the Securityholders.
(b) The Guarantor represents and warrants that (i) it has all necessary power and authority to execute and deliver this Second Supplemental Indenture, (ii) that it is a company limited by shares ( Aktiengesellschaft ) under the laws of Switzerland and (iii) that this Second Supplemental Indenture is executed and delivered pursuant to Section 901(7) of the Indenture and does not require the consent of the Securityholders.
Section 8. Conditions of Effectiveness . This Second Supplemental Indenture shall become effective simultaneously with the effectiveness of the Merger, provided, however, that:
(a) the Trustee shall have executed a counterpart of this Second Supplemental Indenture and shall have received one or more counterparts of this Second Supplemental Indenture executed by the Company, the Successor Company and the Guarantor;
(b) the Trustee shall have received an Officers’ Certificate stating that (i) this Second Supplemental Indenture complies with the requirements of Article Nine of the Indenture; and (ii) in the opinion of the signers, all conditions precedent, if any, provided for in the Indenture relating to the Merger and this Second Supplemental Indenture have been complied with;
(c) the Trustee shall have received an Opinion of Counsel to the effect that (i) all conditions precedent provided for in the Indenture relating to the Merger and this Second Supplemental Indenture have been complied with; (ii) this Second Supplemental Indenture complies with the requirements of Article Nine of the Indenture and is authorized or permitted by, and conforms to, the terms of Article Nine of the Indenture; (iii) it is proper for the Trustee, under the provisions of Article Nine of the Indenture, to join in the execution of this Second Supplemental Indenture; and (iv) the Merger and the assumption by the Successor Company under this Second Supplemental Indenture comply with the provisions of Article Eight of the Indenture; and
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(d) the Successor Company and the Company shall have duly executed and filed with the Secretaries of State of the States of Delaware and New Jersey Certificates of Merger in connection with the Merger.
Section 9. Reference to the Indenture .
(a) Upon the effectiveness of this Second Supplemental Indenture, each reference in the Indenture to “this Indenture,” “hereunder,” “herein” or words of like import shall mean and be a reference to the Indenture, as affected, amended and supplemented hereby.
(b) Upon the effectiveness of this Second Supplemental Indenture, each reference in the Debt Securities to the Indenture including each term defined by reference to the Indenture shall mean and be a reference to the Indenture or such term, as the case may be, as affected, amended and supplemented hereby.
(c) The Indenture, as amended and supplemented hereby shall remain in full force and effect and is hereby ratified and confirmed.
Section 10. Execution in Counterparts . This Second Supplemental Indenture may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument.
Section 11. Governing Law; Binding Effect . This Second Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York and shall be binding upon the parties hereto and their respective successors and assigns.
Section 12. The Trustee . The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Second Supplemental Indenture or the due execution thereof by the Company or the Successor Company. The recitals of fact contained herein shall be taken as the statements solely of the Company or the Successor Company, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this Second Supplemental Indenture. In no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
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Section 13. Submission to Jurisdiction . The Company, the Successor Company and the Guarantor each agrees that any judicial proceedings instituted in relation to any matter arising under the Indenture, this Second Supplemental Indenture or the Securities may be brought in any United States Federal or New York State court sitting in the Borough of Manhattan, The City of New York, New York to the extent that such court has subject matter jurisdiction over the controversy, and, by execution and delivery of this Second Supplemental Indenture, the Company, the Successor Company and the Guarantor each hereby irrevocably accepts, generally and unconditionally, the jurisdiction of the aforesaid courts, acknowledges their competence and irrevocably agrees to be bound by any judgment rendered in such proceeding. The Company, the Successor Company and the Guarantor each also irrevocably and unconditionally waives for the benefit of the Trustee and the Holders of the Securities any immunity from jurisdiction and any immunity from legal process (whether through service or notice, attachment prior to judgment, attachment in the aid of execution, execution or otherwise) in respect of the Indenture and this Second Supplemental Indenture. The Company, the Successor Company and the Guarantor each hereby irrevocably designates and appoints for the benefit of the Trustee and the Holders of the Securities for the term of the Indenture and this Second Supplemental Indenture ACE Group Holdings, Inc., 1133 Avenue of the Americas, 32 nd Floor, New York, New York 10036, as its agent to receive on its behalf service of all process (with a copy of all such service of process to be delivered to the General Counsel and Secretary, ACE Limited, Baerengasse 32, CH-8001 Zurich, Switzerland) brought against it with respect to any such proceedings in any such court in The City of New York, such service being hereby acknowledged by each of the Company, the Successor Company and the Guarantor to be effective and binding service on it in every respect whether or not the Company, the Successor Company or the Guarantor, as the case may be, shall then be doing or shall have at any time done business in New York. Such appointment shall be irrevocable so long as any of the Securities or the respective obligations of the Company, the Successor Company and the Guarantor under the Indenture or this Second Supplemental Indenture remain outstanding, or until the appointment of a successor by the Company, the Successor Company or the Guarantor, as the case may be, and such successor’s acceptance of such appointment. Upon such acceptance, the Company, the Successor Company or the Guarantor, as the case may be, shall notify the Trustee of the name and address of such successor. The Company, the Successor Company and the Guarantor each further agrees for the benefit of the Trustee and the Holders of the Securities to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of said ACE Group Holdings, Inc. in full force and effect so long as any of the Securities or the respective obligations of the Company, the Successor Company and the Guarantor under the Indenture or this Second Supplemental Indenture shall be outstanding. The Trustee shall not be obligated and shall have no responsibility with respect to any failure by the Company, the Successor Company or the Guarantor to take any such action. Nothing herein shall affect the right to serve process in any other manner permitted by any law or limit the right of the Trustee or any Holder to institute proceedings against the Company, the Successor Company or the Guarantor in the courts of any other jurisdiction or jurisdictions.
Section 14. Waiver of Jury Trial . EACH OF THE COMPANY, THE SUCCESSOR COMPANY, THE GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SECOND SUPPLEMENTAL INDENTURE, THE INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
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Section 15. Force Majeure . In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
[Remainder of page intentionally left blank; signatures appear on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed as of the day and year first written above.
| THE CHUBB CORPORATION | ||
| By: |
/ S / K ENNETH K OREYVA |
|
| Name: | Kenneth Koreyva | |
| Title: | President and Treasurer | |
| ACE INA HOLDINGS INC. | ||
| By: |
/ S / K ENNETH K OREYVA |
|
| Name: | Kenneth Koreyva | |
| Title: | Chief Financial Officer | |
| ACE LIMITED | ||
| By: |
/ S / P HILIP V. B ANCROFT |
|
| Name: | Philip V. Bancroft | |
| Title: | Chief Financial Officer | |
| THE BANK OF NEW YORK MELLON TRUST | ||
|
COMPANY, N.A., not in its individual capacity, but solely as Trustee |
||
| By: |
/ S / T ERESA P ETTA |
|
| Name: | Teresa Petta | |
| Title: | Vice President | |
[Signature Page to Second Supplemental Indenture]
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Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the following Registration Statements of ACE Limited:
| (1) | Registration Statement on Form S-3 (No. 333-207570) |
| (2) | Registration Statement on Form S-3 (No. 333-200838) |
| (3) | Registration Statement on Form S-8 (No. 333-208998) |
| (4) | Registration Statement on Form S-8 (No. 333-188949) |
| (5) | Registration Statement on Form S-8 (No. 333-182062) |
| (6) | Registration Statement on Form S-8 (No. 333-153239) |
| (7) | Registration Statement on Form S-8 (No. 333-116532) |
| (8) | Registration Statement on Form S-8 (No. 333-1404) |
| (9) | Registration Statement on Form S-8 (No. 333-46301) |
| (10) | Registration Statement on Form S-8 (No. 333-93867) |
| (11) | Registration Statement on Form S-8 (No. 333-72301) |
| (12) | Registration Statement on Form S-8 (No. 333-61038) |
| (13) | Registration Statement on Form S-8 (No. 333-134504) |
| (14) | Registration Statement on Form S-8 (No. 333-168795) |
of our report dated February 26, 2015, with respect to the consolidated financial statements and schedules of The Chubb Corporation which is incorporated by reference in this Current Report on Form 8-K of ACE Limited.
/s/ Ernst & Young LLP
New York, New York
January 14, 2016