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):   November 13, 2017

 

EQT CORPORATION

(Exact name of registrant as specified in its charter)

 

Pennsylvania

 

1-3551

 

25-0464690

(State or Other Jurisdiction
of Incorporation)

 

(Commission File Number)

 

(IRS Employer
Identification Number)

 

625 Liberty Avenue, Suite 1700, Pittsburgh, Pennsylvania 15222

(Address of principal executive offices, including zip code)

 

(412) 553-5700

(Registrant’s telephone number, including area code)

 

NONE

(Former name or former 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):

 

o  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company  o

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  o

 

 

 



 

Item 2.01.              Completion of Acquisition or Disposition of Assets.

 

On November 13, 2017, EQT Corporation (the Company) completed its previously announced acquisition of Rice Energy Inc. (Rice) pursuant to the Agreement and Plan of Merger, dated as of June 19, 2017 (as amended by Amendment No. 1 thereto dated as of October 26, 2017, the Merger Agreement), by and among the Company, Rice and Eagle Merger Sub I, Inc. (Merger Sub), a wholly owned indirect subsidiary of the Company. Pursuant to the terms of the Merger Agreement, on November 13, 2017, Merger Sub merged with and into Rice (the Merger) with Rice continuing as the surviving corporation in the Merger and a wholly owned indirect subsidiary of the Company. Immediately after the effective time of the Merger (the Effective Time), the surviving corporation in the Merger was merged with and into another wholly owned indirect subsidiary of the Company.

 

At the Effective Time, each share of the common stock, par value $0.01 per share, of Rice (the Rice Common Stock) issued and outstanding immediately prior to the Effective Time (other than shares of Rice Common Stock held by the Company or certain of its subsidiaries, shares held by Rice in treasury or shares with respect to which appraisal was properly demanded pursuant to Delaware law) were converted into the right to receive 0.37 (the Exchange Ratio) of a share of the common stock, no par value, of the Company (Company Common Stock) and $5.30 in cash (collectively, the Merger Consideration).  The aggregate Merger Consideration consisted of approximately 91.90 million shares of Company Common Stock and approximately $1.3 billion in cash (inclusive of amounts payable to employees of Rice who are not continuing with the Company following the Effective Time).

 

At the Effective Time, each outstanding restricted stock unit award or performance stock unit award in respect of Rice Common Stock that was held by an employee of Rice who will be employed by the Company following the Effective Time or a non-employee director of Rice who will be continuing as a non-employee director of the Company following the Effective Time was converted into a restricted stock unit award, with substantially the same terms and conditions as were applicable to the pre-conversion award, in respect of a number of shares of Company Common Stock equal to the product (rounded to the nearest whole share) of (a) the number of shares of Rice Common Stock subject to the pre-conversion award multiplied by (b) the sum of (i) the Exchange Ratio plus (ii) the quotient of $5.30 divided by the average closing price of Company Common Stock for the five consecutive trading days ending on the last complete trading day prior to the Effective Time (the Stock Award Exchange Ratio). Performance conditions applicable to any such Rice performance stock unit awards were deemed to have been met at the maximum level specified in the award at the Effective Time, and the converted awards are subject solely to time-based vesting.

 

At the Effective Time, each outstanding restricted stock unit award or performance stock unit award in respect of Rice Common Stock held by an employee of Rice who is not continuing with the Company following the Effective Time vested and will be settled for the Merger Consideration with respect to each share of Rice Common Stock subject to such award. Performance conditions applicable to such Rice performance stock unit awards were deemed to have been met at the maximum level specified in the award at the Effective Time.

 

The issuance of Company Common Stock in connection with the Merger was registered under the Securities Act of 1933, as amended (the Securities Act), pursuant to the Company’s registration statement on Form S-4 (File No. 333-219508) (as amended, the Registration Statement) filed with the U.S. Securities and Exchange Commission (the SEC) and declared effective on October 12, 2017.  The definitive joint proxy statement/prospectus, dated October 12, 2017, of the Company and Rice that forms part of the Registration Statement (the Proxy Statement/Prospectus) contains additional information about the Merger and the other transactions contemplated in connection therewith.

 

The foregoing description of the Merger does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which was attached as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the SEC on June 19, 2017 and is incorporated herein by reference.

 

Item 2.03.                                         Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

On November 13, 2017, in connection with the consummation of the Merger, the aggregate commitments of the lenders under the Company’s Second Amended and Restated Credit Agreement, dated as of July 31, 2017 (the

 

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Company Credit Agreement), with PNC Bank, National Association, as Administrative Agent, were increased from $1,500,000,000 to $2,500,000,000, in accordance with the previously disclosed terms of the Company Credit Agreement.  In addition, on November 13, 2017, certain existing letters of credit issued for the account of Rice and its subsidiaries were transferred to the Company Credit Agreement, after giving effect to which the Company had approximately $1.25 billion in borrowings and $224.4 million of letters of credit outstanding thereunder.  A summary of the material terms of the Company Credit Agreement is set forth in the Company’s Current Report on Form 8-K filed with the SEC on August 3, 2017.

 

Item 5.02.                                         Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Appointment of Directors

 

On November 13, 2017, Thomas F. Karam, Daniel J. Rice IV, Norman J. Szydlowski and Robert F. Vagt (collectively, the Appointed Directors) were appointed to the board of directors of the Company (the Board).

 

Mr. Karam has been a senior executive and entrepreneur in the midstream energy sector for over 25 years. Mr. Karam is the founder and Chairman of Karbon Partners, LLC, which invests in, owns, constructs, and operates midstream energy assets.   Mr. Karam served as the founder, Chairman and Chief Executive Officer of PennTex Midstream Partners, LLC, a publicly traded MLP with operations in North Louisiana and the Permian basin in Texas from 2014 until its sale to Energy Transfer Partners in November 2016.  Preceding PennTex, he was the founder, Chairman and Chief Executive Officer of Laser Midstream Partners, LLC, one of the first independent natural gas gathering systems in the northeast Marcellus shale, from 2010 until February 2012 when it was acquired by Williams Partners.  Prior to Laser, Mr. Karam was the President, Chief Operating Officer and Director of Southern Union Company leading its successful transformation from a large LDC company to one of the largest pipeline companies in the United States at the time.  Prior to Southern Union, Mr. Karam was the President and Chief Executive Officer of Pennsylvania Enterprises and PG Energy, a natural gas utility in central and northeastern Pennsylvania until its acquisition by Southern Union Company. Mr. Karam began his professional career in investment banking where he spent a number of years with Legg Mason Inc. and Thomson McKinnon.

 

Mr. Rice serves as a member of the Public Policy and Corporate Responsibility and Executive Committees. Mr. Rice served as Chief Executive Officer of Rice Energy Inc. and on its Board of Directors from 2013 to 2017, as well as a member of its Health, Safety and Environmental Committee. Mr. Rice has served in a number of positions with Rice, its affiliates and predecessor entities since October 2008, including as Vice President and Chief Financial Officer from 2008 to 2013 and Chief Operating Officer from 2012 to 2013. Mr. Rice also served as the Chief Executive Officer of Rice Midstream Partners LP and a director of Rice Midstream Management LLC, a subsidiary of Rice Energy and the general partner of Rice Midstream Partners LP (the RMP General Partner) from 2014 to 2017. Prior to joining Rice, he served as an investment banker for Tudor Pickering Holt & Co., LLC and served as a senior analyst of corporate planning for Transocean Inc.

 

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Mr Szydlowski has served as a director of the general partner of 8point3 Energy Partners, LP since 2015. He also has served as a director of the general partner of JP Energy Partners LP since 2014, and a director of Transocean Partners, LLC from 2014 to 2016. From 2009 to 2014, Mr. Szydlowski served as President and Chief Executive Officer of SemGroup Corporation, and as a director from 2010 to 2014.  During his career with SemGroup, Mr. Szydlowski served as President, Chief Executive Officer and Chairman of the Board of Directors of Rose Rock Midstream GP, LLC.  From 2006 to 2008, Mr. Szydlowski served as President and Chief Executive Officer of Colonial Pipeline Company and from 2011 to 2014 served as a director of NGL Energy Partners. He also has served as a senior consultant to the Iraqi Ministry of Oil in Baghdad on behalf of the U.S. Department of Defense, where he led an advisory team in the rehabilitation, infrastructure security and development of future strategy of the Iraqi oil sector. Earlier career experience includes several leadership roles for Chevron Corporation.

 

Mr. Vagt serves as a member of the Corporate Governance Committee. Mr. Vagt served as Chairman of Rice Energy Inc.’s Board of Directors from 2014 to 2017 and as chair of its Health, Safety and Environmental Committee, and a member of the Audit and Nominating and Governance Committees. Mr. Vagt also currently serves as a director of the RMP General Partner and served as the Chairman of its Board of Directors from 2014 to 2017. Mr. Vagt currently serves as a member of its Audit Committee. Mr. Vagt has served as a director of Kinder Morgan, Inc. since May 2012, where he serves as a member of the Audit Committee and chair of its Environmental, Health and Safety Committee. Mr. Vagt served as a director of El Paso Corporation from May 2005 to 2012, where he was a member of the Compensation and Health, Safety and Environmental Committees. From 2008 to 2014, Mr. Vagt was the President of The Heinz Endowments. Prior to his tenure at The Heinz Endowments, Mr. Vagt served as President of Davidson College from 1997 to 2007. Mr. Vagt served as President and Chief Operating Officer of Seagull Energy Corporation from 1996 to 1997. From 1992 to 1996, he served as President, Chairman and Chief Executive Officer of Global Natural Resources. Mr. Vagt served as President and Chief Operating Officer of Adobe Resources Corporation (Adobe) from 1989 to 1992. Prior to 1989, he served in various positions with Adobe and its predecessor entities.

 

Messrs. Karam, Rice, Szydlowski and Vagt will receive the standard compensation amounts payable to non-employee directors of the Company, as described in the Company’s definitive proxy statement filed with the SEC on February 17, 2017.

 

Item 5.03.                                         Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

On November 13, 2017, the Company’s articles of incorporation were amended and restated (as amended and restated, the Restated Articles of Incorporation) to increase the maximum number of directors permitted to be on the  Board from twelve to fifteen.  This amendment was approved by the Company’s shareholders at a special meeting held on November 9, 2017.  Clean and marked copies of the Restated Articles of Incorporation are filed as Exhibits 3.1 and 3.2, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.

 

Also on November 13, 2017, the Company’s bylaws were amended and restated (as amended and restated, the Amended and Restated Bylaws) to conform to the Restated Articles of Incorporation by increasing the maximum number of directors permitted to be on the Board from twelve to fifteen.  Clean and marked copies of the Amended and Restated Bylaws are filed as Exhibits 3.3 and 3.4, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.

 

Item 7.01.              Regulation FD Disclosure

 

On November 13, 2017, the Company issued two news releases, the first announcing the closing of the Merger and related matters and the second announcing the appointment of directors to the Board. Copies of the news releases are furnished as Exhibits 99.1 and 99.2 to this Current Report on Form 8-K and are incorporated into this Item 7.01 by reference. The information in this Item 7.01 of Form 8-K shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the Exchange Act), or otherwise subject to the liability of such section, nor shall such information be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange Act, regardless of the general incorporation language of such filing, except as shall be expressly set forth by specific reference in such filing.

 

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Item 9.01.              Financial Statements and Exhibits.

 

(a) Financial Statements of Businesses Acquired.

 

The Company intends to file the financial statements required by Item 9.01(a) under cover of a Form 8-K/A no later than 71 calendar days after the date this Current Report on Form 8-K was required to be filed.

 

(b) Pro Forma Financial Information.

 

The Company intends to file the pro forma financial information required by Item 9.01(b) under cover of a Form 8-K/A no later than 71 calendar days after the date this Current Report on Form 8-K was required to be filed.

 

(d) Exhibits.

 

Exhibit No.

 

Description of Exhibit

 

 

 

2.1

 

Agreement and Plan of Merger, dated as of June 19, 2017, among EQT Corporation, Eagle Merger Sub I, Inc. and Rice Energy Inc. (incorporated herein by reference to Exhibit 2.1 to EQT’s Current Report on Form 8-K, filed June 19, 2017) (File No. 001-03551)

 

 

 

3.1

 

Restated Articles of Incorporation of EQT Corporation (as amended through November 13, 2017)

 

 

 

3.2

 

Restated Articles of Incorporation of EQT Corporation (as amended through November 13, 2017) (Marked Version)

 

 

 

3.3

 

Amended and Restated Bylaws of EQT Corporation (as amended through November 13, 2017)

 

 

 

3.4

 

Amended and Restated Bylaws of EQT Corporation (as amended through November 13, 2017) (Marked Version)

 

 

 

99.1

 

News Release, dated November 13, 2017 (Closing)

 

 

 

99.2

 

News Release, dated November 13, 2017 (Directors)

 

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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.

 

 

EQT CORPORATION

 

 

 

 

 

 

Date: November 13, 2017

By:

/s/ Robert J. McNally

 

Name:

Robert J. McNally

 

Title:

Senior Vice President and Chief Financial Officer

 

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Exhibit 3.1

 

RESTATED ARTICLES OF EQT CORPORATION

 

(As amended through November 13, 2017)

 

First :  The name of the Company is EQT CORPORATION.

 

Second :  The location and post office address of its current registered office in the Commonwealth of Pennsylvania is c/o CT Corporation System, Allegheny County.

 

Third :  The purposes for which the Company is incorporated under the Business Corporation Law of the Commonwealth of Pennsylvania are to engage in, and to do any lawful act concerning, any or all lawful business for which corporations may be incorporated under said Business Corporation Law, including but not limited to:

 

A.             the supply of heat, light and power to the public by any means;

 

B.             the production, purchase, generation, manufacture, transmission, transportation, storage, distribution and supplying of natural or artificial gas, steam or air conditioning, electricity, or any combination thereof to or for the public; and

 

C.             manufacturing, processing, owning, using and dealing in personal property of every class and description, engaging in research and development, the furnishing of services, and acquiring, owning, using and disposing of real property of every nature whatsoever.

 

Fourth :  The term of the Company’s existence shall be perpetual.

 

Fifth :  The aggregate number of shares which the Company shall have authority to issue shall be:

 

(a)            3,000,000 shares of Preferred Stock, without par value; and

 

(b)            320,000,000 shares of Common Stock, without par value.

 

The designations, preferences, qualifications, limitations, restrictions, and the special or relative rights in respect of the Preferred Stock and of the Common Stock of the Company, and a statement of the authority hereby vested in the Board of Directors of the Company to fix and determine the designations, preferences, qualifications, limitations, restrictions, and special or relative rights in respect of all series of the Preferred Stock shall be as follows:

 

Division A:  THE PREFERRED STOCK

 

1.1           Preferred Stock .  The Preferred Stock may be divided into and issued in series.  The Board of Directors is hereby expressly authorized, at any time or from time to time, to divide any or all of the shares of the Preferred Stock into series, and in the resolution or resolutions establishing a particular series, before issuance of any of the shares thereof, to fix and determine the designation and the relative rights and preferences of the series so established, to

 



 

the fullest extent now or hereafter permitted by the laws of the Commonwealth of Pennsylvania, including, but not limited to, the variations between different series in the following respects:

 

(a)            the distinctive serial designation of such series;

 

(b)            the annual dividend rate for such series, and the date or dates from which dividends shall commence to accrue;

 

(c)            the redemption price or prices, if any, for shares of such series and the terms and conditions on which such shares may be redeemed;

 

(d)            the provisions for a sinking, purchase or similar fund, if any, for the redemption or purchase of shares of such series;

 

(e)            the preferential amount or amounts payable upon shares of such series in the event of the voluntary or involuntary liquidation of the Company;

 

(f)             the voting rights, if any, of shares of such series;

 

(g)            the terms and conditions, if any, upon which shares of such series may be converted and the class or classes or series of securities of the Company into which such shares may be converted;

 

(h)            the relative seniority, parity or junior rank of such series with respect to other series of Preferred Stock then or thereafter to be issued; and

 

(i)             such other terms, limitations and relative rights and preferences, if any, of shares of such series as the Board of Directors may, at the time of such resolutions, lawfully fix and determine under the laws of the Commonwealth of Pennsylvania.

 

Division B:  PROVISIONS APPLICABLE TO BOTH THE
PREFERRED STOCK AND THE COMMON STOCK

 

2.1           Voting Rights .  Except as provided in this Section 2.1, the holders of the Common Stock shall have exclusive voting rights for the election of Directors and for all other purposes and shall be entitled to one vote for each share held.  The holders of the Preferred Stock shall have no voting rights except as may be provided with respect to any particular series of the Preferred Stock by the Board of Directors pursuant to Subdivision 1.1 of Division A hereof.  On any matter on which the holders of the Preferred Stock shall be entitled to vote, they shall be entitled to vote as established by the Board of Directors pursuant to Subdivision 1.1 of Division A hereof.

 

A nominee for director shall be elected to the Board of Directors at a meeting of shareholders if the votes by the shareholders entitled to vote in the election cast for such nominee exceed the votes cast against such nominee’s election (excluding abstentions), provided , that if the number of nominees exceeds the number of directors to be elected, then the nominees receiving the highest number of votes up to the number of directors to be elected shall be elected.  No shareholder shall in any election of directors have any right to cumulate his votes and cast

 

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them for one candidate or distribute them among two or more candidates.  The foregoing provisions of this paragraph shall not be changed with respect to any class of stock unless the holders of record of not less than two-thirds of the number of shares of such class of stock then outstanding shall consent thereto in writing or by voting therefor in person or by proxy at the meeting of shareholders at which any such change is considered.

 

2.2           Pre-emptive Rights .  The Company may issue shares of any class of stock, option rights, or securities having conversion or option rights, without first offering them to the holders of Common Stock or Preferred Stock.  The provisions of this Subdivision shall be effective to eliminate and deny any preemptive right which may exist or may have existed in respect of any outstanding shares.

 

2.3           Amendments to By-Laws .  The Board of Directors may make, amend and repeal the By-Laws with respect to those matters which are not, by statute, reserved exclusively to the shareholders, subject always to the power of the shareholders to change such action as provided herein.  No By-Law may be made, amended or repealed by the shareholders unless such action is approved by the affirmative vote of the holders of not less than 80% of the voting power of the then outstanding shares of capital stock of the Company entitled to vote in an annual election of directors, voting together as a single class, unless such action has been previously approved by a two-thirds vote of the whole Board of Directors, in which event (unless otherwise expressly provided in the Articles or the By-Laws) the vote specified by applicable law for valid shareholder action shall be required.

 

2.4           Amendments to Articles .  Subject to the voting rights given to any particular series of the Preferred Stock by the Board of Directors pursuant to Subdivision 1.1 of Division A hereof, and except as may be specifically provided to the contrary in any other provision in the Articles with respect to amendment or repeal of such provision, the affirmative vote of the holders of not less than 80% of the voting power of the then outstanding shares of capital stock of the Company entitled to vote in an annual election of directors, voting together as a single class, shall be required to amend the Articles of the Company or repeal any provision thereof, unless such action has been previously approved by a two-thirds vote of the whole Board of Directors, in which event (unless otherwise expressly provided in the Articles) such shareholder approval as may be specified by law shall be required.

 

2.5           General .  The Company may issue and dispose of any of its authorized shares for such consideration as may be fixed by the Board of Directors subject to the laws then applicable.

 

Division C:  BOARD OF DIRECTORS;
CLASSIFICATION; REMOVAL; VACANCIES

 

3.1           The business and affairs of the Company shall be managed by a Board of Directors comprised as follows:

 

(a)            The Board of Directors shall consist of not less than 5 nor more than 15 persons, the exact number to be fixed from time to time by the Board of Directors pursuant to a resolution adopted by a majority vote of the directors then in office.

 

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(b)            Each person elected as a director of the Company after the 2013 annual meeting of shareholders, whether to succeed a person whose term of office as a director has expired (including the expiration of such person’s term) or to fill any vacancy, shall be elected for a term expiring at the next annual meeting.  Each director elected at or prior to the 2013 annual meeting of shareholders shall be deemed to serve as a member of the class of directors to which he or she was so elected for the term elected.  At and after the 2016 annual meeting of shareholders, the directors shall no longer be classified with respect to the time for which they hold office.  Notwithstanding the foregoing, each director elected shall hold office until such director’s successor shall have been duly elected and qualified or until such director’s earlier death, resignation or removal.

 

(c)            Any director, any class of directors (if the Board of Directors is then classified) or the entire Board of Directors may be removed from office by shareholder vote at any time, without assigning any cause, but only if shareholders entitled to cast at least 80% of the votes which all shareholders would be entitled to cast at an annual election of directors (or of such class of directors if the Board is then classified) shall vote in favor of such removal.

 

(d)            Vacancies in the Board of Directors, including vacancies resulting from an increase in the number of directors, shall be filled only by a majority vote of the remaining directors then in office, though less than a quorum, except that vacancies resulting from removal from office by a vote of the shareholders may be filled by the shareholders at the same meeting at which such removal occurs.  A person elected to fill a vacancy in the Board of Directors shall hold office for a term expiring at the next annual meeting of shareholders held immediately following such person being elected to fill the vacancy.  No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.

 

(e)            Whenever the holders of any class or series of preferred stock shall have the right, voting separately as a class, to elect one or more directors of the Company, none of the foregoing provisions of this Section 3.1 shall apply with respect to the director or directors elected by such holders of preferred stock.

 

3.2           Notwithstanding any other provisions of law, the Articles or the By-Laws of the Company, the affirmative vote of the holders of not less than 80% of the voting power of the then outstanding shares of capital stock of the Company entitled to vote in an annual election of directors, voting together as a single class, shall be required to amend, alter, change or repeal, or adopt any provision inconsistent with, this Division C, unless such action has been previously approved by a two-thirds vote of the whole Board of Directors.

 

3.3           No Director shall be personally liable for monetary damages as such (except to the extent otherwise provided by law) for any action taken, or any failure to take any action, unless such Director has breached or failed to perform the duties of his or her office under Title 42, Chapter 83, Subchapter F of the Pennsylvania Consolidated Statutes (or any successor statute relating to Directors’ standard of care and justifiable reliance); and the breach or failure to perform constitutes self-dealing, willful misconduct or recklessness.

 

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If the Pennsylvania Consolidated Statutes are amended after May 22, 1987, the date this section received shareholder approval, to further eliminate or limit the personal liability of Directors, then a Director shall not be liable, in addition to the circumstances set forth in this section, to the fullest extent permitted by the Pennsylvania Consolidated Statutes, as so amended.

 

The provisions of this section shall not apply to any actions filed prior to January 27, 1987 nor to any breach of performance of duty, or any failure of performance of duty, by any Director occurring prior to January 27, 1987.

 

Division D:  PROCEDURES RELATING
TO CERTAIN BUSINESS COMBINATIONS

 

4.1           Votes Required; Exceptions .

 

(a)            The affirmative vote of the holders of not less than 80% of the voting power of the then outstanding shares of capital stock of the Company entitled to vote in an annual election of directors (the “Voting Stock”), voting together as a single class, shall be required for the approval or authorization of any “Business Combination” (as hereinafter defined) involving a “Related Person” (as hereinafter defined); provided , however , that the 80% voting requirement shall not be applicable if:

 

(1)            The “Continuing Directors” (as hereinafter defined) of the Company by a two-thirds vote have expressly approved such Business Combination either in advance of or subsequent to such Related Person’s having become a Related Person; or

 

(2)            both the following conditions are satisfied:

 

(A)           the aggregate amount of the cash and the “Fair Market Value” (as hereinafter defined) of the property, securities and “Other Consideration” (as hereinafter defined) to be received per share by holders of capital stock of the Company in the Business Combination, other than the Related Person, is not less than the “Highest Equivalent Price” (as hereinafter defined) of such shares of capital stock; and

 

(B)           a proxy or information statement describing the proposed Business Combination and complying with the requirements of the Securities Exchange Act of 1934, as amended, whether or not the Company is then subject to such requirements, shall have been mailed to all shareholders of the Company.  The proxy or information statement shall contain at the front thereof, in a prominent place, the position of the Continuing Directors as to the advisability (or inadvisability) of the Business Combination and, if deemed advisable by a majority of the Continuing Directors, the opinion of an investment banking firm selected by the Continuing Directors as to the fairness of the terms of the Business Combination, from the point of view of the holders of the outstanding shares of capital stock of the Company other than any Related Person.

 

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(b)            Such 80% vote shall in any such instance be required notwithstanding the fact that no vote may be required or that a lesser percentage may be specified by law or in any agreement with any national securities exchange or otherwise.

 

4.2           Definitions .  For purposes of this Division D:

 

(a)            A “Person” shall mean any individual, partnership, corporation or other entity.  As used herein, the pronouns “which” and “it” in relation to Persons which are individuals shall be construed to mean “who” or “whom”, “he” or “she”, and “him” or “her”, as appropriate.

 

(b)            The terms “Affiliate” and “Associate” shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on November 10, 1983 (the term “registrant” in said Rule 12b-2 meaning in this case the Company).

 

(c)            The term “Beneficial Owner” (and variations thereof) shall have the meaning ascribed to such term in Rule 13d-3 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on November 10, 1983; provided , however , that notwithstanding any provision of Rule 13d-3 to the contrary, an entity shall be deemed to be the Beneficial Owner of any share of capital stock of the Company that such entity has the right to acquire at any time pursuant to any agreement, or upon exercise of conversion rights, warrants or options, or otherwise.

 

(d)            The term “Voting Stock” shall have the meaning set forth at the beginning of Section 4.1(a) of this Division D.

 

(e)            The term “Subsidiary” of any Person shall mean any corporation of which a majority of the capital stock entitled to vote for the election of directors is Beneficially Owned by such Person directly or indirectly though other Subsidiaries of such Person.

 

(f)             The term “Substantial Part” of the assets of any person shall mean more than 10% of the Fair Market Value, as determined by a two-thirds vote of the Continuing Directors, of the total consolidated assets of such Person and its Subsidiaries as of the end of its most recent fiscal year ended prior to the time the determination is being made.

 

(g)            The term “Other Consideration” shall include, without limitation, shares of Common Stock or other capital stock of the Company retained by the holders of such shares in the event of a Business Combination in which the Company is the surviving corporation.

 

(h)            The term “Continuing Director” shall mean a director of the Company who is unaffiliated with any Related Person and either (1) was a director of the Company immediately prior to the time the Related Person involved in a Business Combination became a Related Person or (2) is a successor to a Continuing Director and is recommended to succeed a continuing Director by a majority of the then Continuing Directors.  Where this Division D contains provisions for a determination, recommendation or approval by the Continuing Directors, if there is at any particular

 

6



 

relevant time no Continuing Director in office, then such provision shall be deemed to be satisfied if the Board, by a two-thirds vote of the whole Board of Directors, makes or gives such determination, recommendation or approval.

 

(i)             The term “Business Combination” shall mean

 

(1)            any merger, consolidation or share exchange of the Company or a Subsidiary of the Company with a Related Person, in each case without regard to which entity is the surviving entity;

 

(2)            any sale, lease, exchange, transfer or other disposition, including without limitation a mortgage or any other security device, of all or any Substantial Part of the assets of the Company (including without limitation any voting securities of a Subsidiary of the Company) or a Subsidiary of the Company to or with a Related Person (whether in one transaction or series of transactions), or of all or any Substantial Part of the assets of a Related Person to the Company or a Subsidiary of the Company;

 

(3)            the issuance, transfer or delivery of any securities of the Company or a Subsidiary of the Company by the Company or any of its Subsidiaries to a Related Person, or of any securities of a Related Person to the Company or a Subsidiary of the Company (other than an issuance or transfer of securities which is effected on a pro rata basis to all shareholders of the Company or of the Related Person, as the case may be);

 

(4)            any recapitalization, reorganization or reclassification of securities (including any reverse stock split) or other transaction that would have the effect, directly or indirectly, of increasing the voting power of a Related Person;

 

(5)            the adoption of any plan or proposal for the liquidation or dissolution of the Company proposed by or on behalf of a Related Person; or

 

(6)            any agreement, plan, contract or other arrangement providing for any of the transactions described in this definition of Business Combination.

 

(j)             The term “Related Person” at any particular time shall mean any Person if such Person, its Affiliates, its Associates, and all Persons of which it is an Affiliate or Associate Beneficially Own in the aggregate 10% or more of the outstanding Voting Stock of the Company, and any Affiliate or Associate of any such Person, and any Person of which such Person is an Affiliate or Associate.  With respect to any particular Business Combination, the term “Related Person” means the Related Person involved in such Business Combination, any Affiliate or Associate of such Related Person, and any Person of which such Related Person is an Affiliate or Associate.  Where in this Division D any reference is made to a transaction involving, or ownership of securities by, a Related Person, it shall mean and include one or more transactions involving different Persons all included within the definition of “Related Person”, or ownership of securities by any or all of such Persons.  Each Person who is an Affiliate or Associate of a Related Person

 

7



 

shall be deemed to have become a Related Person at the earliest time any of such Persons becomes a Related Person.

 

(k)            The term “highest Equivalent Price” with respect to shares of capital stock of the Company of any class or series shall mean the following:

 

(1)            with respect to shares of Common Stock, the highest price that can be determined to have been paid at any time by a Related Person for any shares of Common Stock; and

 

(2)            with respect to any class or series of shares of capital stock other than Common Stock, the higher of the following:

 

(A)           if any shares of such class or series are Beneficially Owned by a Related Person, the highest price that can be determined to have been paid at any time by a Related Person for such shares; or

 

(B)           the amount determined by the Continuing Directors, on whatever basis they believe is appropriate, to be the per share price equivalent of the highest price that can be determined to have been paid at any time by a Related Person for any shares of any other class or series of capital stock of the Company.

 

In determining the Highest Equivalent Price, all purchases by a Related Person shall be taken into account regardless of whether the shares were purchased before or after the Related Person became a Related Person.  Also, the Highest Equivalent Price shall include any brokerage commissions, transfer taxes, soliciting dealers’ fees and other expenses paid by the Related Person with respect to the shares of capital stock of the Company acquired by the Related Person.  In the case of any Business Combination with a Related Person, the Continuing Directors by a two-thirds vote shall determine the Highest Equivalent Price for each class and series of capital stock of the Company.

 

(l)             The term “Fair Market Value” shall mean (1) in the case of stock, the highest closing sale price during the 30-day period immediately preceding the date in question of a share of such stock on the New York Stock Exchange’s consolidated transaction reporting system, or, if such stock is not listed on such Exchange, on the principal United States securities exchange registered under the Securities Exchange Act of 1934 on which such stock is listed, or, if such stock is not listed on any such exchange, the highest closing bid quotation with respect to a share of such stock during the 30-day period preceding the date in question on the National Association of Securities Dealers, Inc. Automated Quotation System or any system then in use, or if no such quotations are available, the fair market value on the date in question of a share of such stock as determined by the Continuing Directors; and (2) in the case of property other than stock or cash, the fair market value of such property on the date in question as determined by a two-thirds vote of the Continuing Directors.

 

8



 

4.3           Miscellaneous .

 

(a)            The Continuing Directors, by a two-thirds vote, are authorized to determine for purposes of this Division D on the basis of information known to them after reasonable inquiry:  (1) whether a Person is a Related Person, (2) the number of shares of Voting Stock Beneficially Owned by any Person, (3) whether a Person is an Affiliate or Associate of another, (4) whether certain assets constitute a Substantial Part of the assets of any Person, (5) the amounts of prices paid, market prices, and other factors relative to fixing the Highest Equivalent Price of shares of capital stock of the Company and (6) the Fair Market Value of property, securities and Other Consideration received in a Business Combination.  Any such determination made in good faith shall be binding and conclusive on all parties.

 

(b)            Nothing contained in this Division D shall be construed to relieve any Related Person from any fiduciary obligation imposed by law.

 

(c)            The fact that any Business Combination complies with the conditions set forth in Subsection (a)(2) of Section 4.1 of this Division D shall not be construed to impose any fiduciary duty, obligation or responsibility on the Board of Directors, or any member thereof, to approve such Business Combination or recommend its adoption or approval to the shareholders of the Company, nor shall such compliance limit, prohibit or otherwise restrict in any manner the Board of Directors, or any member thereof, with respect to evaluations of or actions and responses taken with respect to such Business Combination.

 

(d)            Notwithstanding any other provisions of law, the Articles or the By-Laws of the Company, the affirmative vote of the holders of not less than 80% of the voting power of the Voting Stock of the Company, voting together as a single class, shall be required to amend, alter, change or repeal, or adopt any provision inconsistent with, this Division D.

 

Sixth :  Henceforth, these Articles of the Company shall not include any prior documents.

 

9


Exhibit 3.2

 

RESTATED ARTICLES OF EQT CORPORATION

 

(As amended through April 17, 2013 November 13, 2017 )

 

First :  The name of the Company is EQT CORPORATION.

 

Second :  The location and post office address of its current registered office in the Commonwealth of Pennsylvania is c/o CT Corporation System, Allegheny County.

 

Third :  The purposes for which the Company is incorporated under the Business Corporation Law of the Commonwealth of Pennsylvania are to engage in, and to do any lawful act concerning, any or all lawful business for which corporations may be incorporated under said Business Corporation Law, including but not limited to:

 

A.            the supply of heat, light and power to the public by any means;

 

B.            the production, purchase, generation, manufacture, transmission, transportation, storage, distribution and supplying of natural or artificial gas, steam or air conditioning, electricity, or any combination thereof to or for the public; and

 

C.            manufacturing, processing, owning, using and dealing in personal property of every class and description, engaging in research and development, the furnishing of services, and acquiring, owning, using and disposing of real property of every nature whatsoever.

 

Fourth :  The term of the Company’s existence shall be perpetual.

 

Fifth :  The aggregate number of shares which the Company shall have authority to issue shall be:

 

(a)           3,000,000 shares of Preferred Stock, without par value; and

 

(b)           320,000,000 shares of Common Stock, without par value.

 

The designations, preferences, qualifications, limitations, restrictions, and the special or relative rights in respect of the Preferred Stock and of the Common Stock of the Company, and a statement of the authority hereby vested in the Board of Directors of the Company to fix and determine the designations, preferences, qualifications, limitations, restrictions, and special or relative rights in respect of all series of the Preferred Stock shall be as follows:

 

Division A:  THE PREFERRED STOCK

 

1.1           Preferred Stock .  The Preferred Stock may be divided into and issued in series.  The Board of Directors is hereby expressly authorized, at any time or from time to time, to divide any or all of the shares of the Preferred Stock into series, and in the resolution or resolutions establishing a particular series, before issuance of any of the shares thereof, to fix and determine the designation and the relative rights and preferences of the series so established, to the fullest

 



 

extent now or hereafter permitted by the laws of the Commonwealth of Pennsylvania, including, but not limited to, the variations between different series in the following respects:

 

(a)           the distinctive serial designation of such series;

 

(b)           the annual dividend rate for such series, and the date or dates from which dividends shall commence to accrue;

 

(c)           the redemption price or prices, if any, for shares of such series and the terms and conditions on which such shares may be redeemed;

 

(d)           the provisions for a sinking, purchase or similar fund, if any, for the redemption or purchase of shares of such series;

 

(e)           the preferential amount or amounts payable upon shares of such series in the event of the voluntary or involuntary liquidation of the Company;

 

(f)            the voting rights, if any, of shares of such series;

 

(g)           the terms and conditions, if any, upon which shares of such series may be converted and the class or classes or series of securities of the Company into which such shares may be converted;

 

(h)           the relative seniority, parity or junior rank of such series with respect to other series of Preferred Stock then or thereafter to be issued; and

 

(i)            such other terms, limitations and relative rights and preferences, if any, of shares of such series as the Board of Directors may, at the time of such resolutions, lawfully fix and determine under the laws of the Commonwealth of Pennsylvania.

 

Division B:  PROVISIONS APPLICABLE TO BOTH THE
PREFERRED STOCK AND THE COMMON STOCK

 

2.1           Voting Rights .  Except as provided in this Section 2.1, the holders of the Common Stock shall have exclusive voting rights for the election of Directors and for all other purposes and shall be entitled to one vote for each share held.  The holders of the Preferred Stock shall have no voting rights except as may be provided with respect to any particular series of the Preferred Stock by the Board of Directors pursuant to Subdivision 1.1 of Division A hereof.  On any matter on which the holders of the Preferred Stock shall be entitled to vote, they shall be entitled to vote as established by the Board of Directors pursuant to Subdivision 1.1 of Division A hereof.

 

A nominee for director shall be elected to the Board of Directors at a meeting of shareholders if the votes by the shareholders entitled to vote in the election cast for such nominee exceed the votes cast against such nominee’s election (excluding abstentions), provided , that if the number of nominees exceeds the number of directors to be elected, then the nominees receiving the highest number of votes up to the number of directors to be elected shall be elected.  No shareholder shall in any election of directors have any right to cumulate his votes and cast them for one candidate or distribute them among two or more candidates.  The foregoing provisions of this

 



 

paragraph shall not be changed with respect to any class of stock unless the holders of record of not less than two-thirds of the number of shares of such class of stock then outstanding shall consent thereto in writing or by voting therefor in person or by proxy at the meeting of shareholders at which any such change is considered.

 

2.2           Pre-emptive Rights .  The Company may issue shares of any class of stock, option rights, or securities having conversion or option rights, without first offering them to the holders of Common Stock or Preferred Stock.  The provisions of this Subdivision shall be effective to eliminate and deny any preemptive right which may exist or may have existed in respect of any outstanding shares.

 

2.3           Amendments to By-Laws .  The Board of Directors may make, amend and repeal the By-Laws with respect to those matters which are not, by statute, reserved exclusively to the shareholders, subject always to the power of the shareholders to change such action as provided herein.  No By-Law may be made, amended or repealed by the shareholders unless such action is approved by the affirmative vote of the holders of not less than 80% of the voting power of the then outstanding shares of capital stock of the Company entitled to vote in an annual election of directors, voting together as a single class, unless such action has been previously approved by a two-thirds vote of the whole Board of Directors, in which event (unless otherwise expressly provided in the Articles or the By-Laws) the vote specified by applicable law for valid shareholder action shall be required.

 

2.4           Amendments to Articles .  Subject to the voting rights given to any particular series of the Preferred Stock by the Board of Directors pursuant to Subdivision 1.1 of Division A hereof, and except as may be specifically provided to the contrary in any other provision in the Articles with respect to amendment or repeal of such provision, the affirmative vote of the holders of not less than 80% of the voting power of the then outstanding shares of capital stock of the Company entitled to vote in an annual election of directors, voting together as a single class, shall be required to amend the Articles of the Company or repeal any provision thereof, unless such action has been previously approved by a two-thirds vote of the whole Board of Directors, in which event (unless otherwise expressly provided in the Articles) such shareholder approval as may be specified by law shall be required.

 

2.5           General .  The Company may issue and dispose of any of its authorized shares for such consideration as may be fixed by the Board of Directors subject to the laws then applicable.

 

Division C:  BOARD OF DIRECTORS;
CLASSIFICATION; REMOVAL; VACANCIES

 

3.1           The business and affairs of the Company shall be managed by a Board of Directors comprised as follows:

 

(a)           The Board of Directors shall consist of not less than 5 nor more than 12 15 persons, the exact number to be fixed from time to time by the Board of Directors pursuant to a resolution adopted by a majority vote of the directors then in office.

 

(b)           Each person elected as a director of the Company after the 2013 annual meeting of shareholders, whether to succeed a person whose term of office as a director has

 



 

expired (including the expiration of such person’s term) or to fill any vacancy, shall be elected for a term expiring at the next annual meeting.  Each director elected at or prior to the 2013 annual meeting of shareholders shall be deemed to serve as a member of the class of directors to which he or she was so elected for the term elected.  At and after the 2016 annual meeting of shareholders, the directors shall no longer be classified with respect to the time for which they hold office.  Notwithstanding the foregoing, each director elected shall hold office until such director’s successor shall have been duly elected and qualified or until such director’s earlier death, resignation or removal.

 

(c)           Any director, any class of directors (if the Board of Directors is then classified) or the entire Board of Directors may be removed from office by shareholder vote at any time, without assigning any cause, but only if shareholders entitled to cast at least 80% of the votes which all shareholders would be entitled to cast at an annual election of directors (or of such class of directors if the Board is then classified) shall vote in favor of such removal.

 

(d)           Vacancies in the Board of Directors, including vacancies resulting from an increase in the number of directors, shall be filled only by a majority vote of the remaining directors then in office, though less than a quorum, except that vacancies resulting from removal from office by a vote of the shareholders may be filled by the shareholders at the same meeting at which such removal occurs.  A person elected to fill a vacancy in the Board of Directors shall hold office for a term expiring at the next annual meeting of shareholders held immediately following such person being elected to fill the vacancy.  No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.

 

(e)           Whenever the holders of any class or series of preferred stock shall have the right, voting separately as a class, to elect one or more directors of the Company, none of the foregoing provisions of this Section 3.1 shall apply with respect to the director or directors elected by such holders of preferred stock.

 

3.2           Notwithstanding any other provisions of law, the Articles or the By-Laws of the Company, the affirmative vote of the holders of not less than 80% of the voting power of the then outstanding shares of capital stock of the Company entitled to vote in an annual election of directors, voting together as a single class, shall be required to amend, alter, change or repeal, or adopt any provision inconsistent with, this Division C, unless such action has been previously approved by a two-thirds vote of the whole Board of Directors.

 

3.3           No Director shall be personally liable for monetary damages as such (except to the extent otherwise provided by law) for any action taken, or any failure to take any action, unless such Director has breached or failed to perform the duties of his or her office under Title 42, Chapter 83, Subchapter F of the Pennsylvania Consolidated Statutes (or any successor statute relating to Directors’ standard of care and justifiable reliance); and the breach or failure to perform constitutes self-dealing, willful misconduct or recklessness.

 

If the Pennsylvania Consolidated Statutes are amended after May 22, 1987, the date this section received shareholder approval, to further eliminate or limit the personal liability of

 



 

Directors, then a Director shall not be liable, in addition to the circumstances set forth in this section, to the fullest extent permitted by the Pennsylvania Consolidated Statutes, as so amended.

 

The provisions of this section shall not apply to any actions filed prior to January 27, 1987 nor to any breach of performance of duty, or any failure of performance of duty, by any Director occurring prior to January 27, 1987.

 

Division D:  PROCEDURES RELATING
TO CERTAIN BUSINESS COMBINATIONS

 

4.1           Votes Required; Exceptions .

 

(a)           The affirmative vote of the holders of not less than 80% of the voting power of the then outstanding shares of capital stock of the Company entitled to vote in an annual election of directors (the “Voting Stock”), voting together as a single class, shall be required for the approval or authorization of any “Business Combination” (as hereinafter defined) involving a “Related Person” (as hereinafter defined); provided , however , that the 80% voting requirement shall not be applicable if:

 

(1)           The “Continuing Directors” (as hereinafter defined) of the Company by a two-thirds vote have expressly approved such Business Combination either in advance of or subsequent to such Related Person’s having become a Related Person; or

 

(2)           both the following conditions are satisfied:

 

(A)          the aggregate amount of the cash and the “Fair Market Value” (as hereinafter defined) of the property, securities and “Other Consideration” (as hereinafter defined) to be received per share by holders of capital stock of the Company in the Business Combination, other than the Related Person, is not less than the “Highest Equivalent Price” (as hereinafter defined) of such shares of capital stock; and

 

(B)          a proxy or information statement describing the proposed Business Combination and complying with the requirements of the Securities Exchange Act of 1934, as amended, whether or not the Company is then subject to such requirements, shall have been mailed to all shareholders of the Company.  The proxy or information statement shall contain at the front thereof, in a prominent place, the position of the Continuing Directors as to the advisability (or inadvisability) of the Business Combination and, if deemed advisable by a majority of the Continuing Directors, the opinion of an investment banking firm selected by the Continuing Directors as to the fairness of the terms of the Business Combination, from the point of view of the holders of the outstanding shares of capital stock of the Company other than any Related Person.

 



 

(b)           Such 80% vote shall in any such instance be required notwithstanding the fact that no vote may be required or that a lesser percentage may be specified by law or in any agreement with any national securities exchange or otherwise.

 

4.2           Definitions .  For purposes of this Division D:

 

(a)           A “Person” shall mean any individual, partnership, corporation or other entity.  As used herein, the pronouns “which” and “it” in relation to Persons which are individuals shall be construed to mean “who” or “whom”, “he” or “she”, and “him” or “her”, as appropriate.

 

(b)           The terms “Affiliate” and “Associate” shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on November 10, 1983 (the term “registrant” in said Rule 12b-2 meaning in this case the Company).

 

(c)           The term “Beneficial Owner” (and variations thereof) shall have the meaning ascribed to such term in Rule 13d-3 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on November 10, 1983; provided , however , that notwithstanding any provision of Rule 13d-3 to the contrary, an entity shall be deemed to be the Beneficial Owner of any share of capital stock of the Company that such entity has the right to acquire at any time pursuant to any agreement, or upon exercise of conversion rights, warrants or options, or otherwise.

 

(d)           The term “Voting Stock” shall have the meaning set forth at the beginning of Section 4.1(a) of this Division D.

 

(e)           The term “Subsidiary” of any Person shall mean any corporation of which a majority of the capital stock entitled to vote for the election of directors is Beneficially Owned by such Person directly or indirectly though other Subsidiaries of such Person.

 

(f)            The term “Substantial Part” of the assets of any person shall mean more than 10% of the Fair Market Value, as determined by a two-thirds vote of the Continuing Directors, of the total consolidated assets of such Person and its Subsidiaries as of the end of its most recent fiscal year ended prior to the time the determination is being made.

 

(g)           The term “Other Consideration” shall include, without limitation, shares of Common Stock or other capital stock of the Company retained by the holders of such shares in the event of a Business Combination in which the Company is the surviving corporation.

 

(h)           The term “Continuing Director” shall mean a director of the Company who is unaffiliated with any Related Person and either (1) was a director of the Company immediately prior to the time the Related Person involved in a Business Combination became a Related Person or (2) is a successor to a Continuing Director and is recommended to succeed a continuing Director by a majority of the then Continuing Directors.  Where this Division D contains provisions for a determination, recommendation or approval by the Continuing Directors, if there is at any particular

 



 

relevant time no Continuing Director in office, then such provision shall be deemed to be satisfied if the Board, by a two-thirds vote of the whole Board of Directors, makes or gives such determination, recommendation or approval.

 

(i)            The term “Business Combination” shall mean

 

(1)           any merger, consolidation or share exchange of the Company or a Subsidiary of the Company with a Related Person, in each case without regard to which entity is the surviving entity;

 

(2)           any sale, lease, exchange, transfer or other disposition, including without limitation a mortgage or any other security device, of all or any Substantial Part of the assets of the Company (including without limitation any voting securities of a Subsidiary of the Company) or a Subsidiary of the Company to or with a Related Person (whether in one transaction or series of transactions), or of all or any Substantial Part of the assets of a Related Person to the Company or a Subsidiary of the Company;

 

(3)           the issuance, transfer or delivery of any securities of the Company or a Subsidiary of the Company by the Company or any of its Subsidiaries to a Related Person, or of any securities of a Related Person to the Company or a Subsidiary of the Company (other than an issuance or transfer of securities which is effected on a pro rata basis to all shareholders of the Company or of the Related Person, as the case may be);

 

(4)           any recapitalization, reorganization or reclassification of securities (including any reverse stock split) or other transaction that would have the effect, directly or indirectly, of increasing the voting power of a Related Person;

 

(5)           the adoption of any plan or proposal for the liquidation or dissolution of the Company proposed by or on behalf of a Related Person; or

 

(6)           any agreement, plan, contract or other arrangement providing for any of the transactions described in this definition of Business Combination.

 

(j)            The term “Related Person” at any particular time shall mean any Person if such Person, its Affiliates, its Associates, and all Persons of which it is an Affiliate or Associate Beneficially Own in the aggregate 10% or more of the outstanding Voting Stock of the Company, and any Affiliate or Associate of any such Person, and any Person of which such Person is an Affiliate or Associate.  With respect to any particular Business Combination, the term “Related Person” means the Related Person involved in such Business Combination, any Affiliate or Associate of such Related Person, and any Person of which such Related Person is an Affiliate or Associate.  Where in this Division D any reference is made to a transaction involving, or ownership of securities by, a Related Person, it shall mean and include one or more transactions involving different Persons all included within the definition of “Related Person”, or ownership of securities by any or all of such Persons.  Each Person who is an Affiliate or Associate of a Related Person shall be

 



 

deemed to have become a Related Person at the earliest time any of such Persons becomes a Related Person.

 

(k)           The term “highest Equivalent Price” with respect to shares of capital stock of the Company of any class or series shall mean the following:

 

(1)           with respect to shares of Common Stock, the highest price that can be determined to have been paid at any time by a Related Person for any shares of Common Stock; and

 

(2)           with respect to any class or series of shares of capital stock other than Common Stock, the higher of the following:

 

(A)          if any shares of such class or series are Beneficially Owned by a Related Person, the highest price that can be determined to have been paid at any time by a Related Person for such shares; or

 

(B)          the amount determined by the Continuing Directors, on whatever basis they believe is appropriate, to be the per share price equivalent of the highest price that can be determined to have been paid at any time by a Related Person for any shares of any other class or series of capital stock of the Company.

 

In determining the Highest Equivalent Price, all purchases by a Related Person shall be taken into account regardless of whether the shares were purchased before or after the Related Person became a Related Person.  Also, the Highest Equivalent Price shall include any brokerage commissions, transfer taxes, soliciting dealers’ fees and other expenses paid by the Related Person with respect to the shares of capital stock of the Company acquired by the Related Person.  In the case of any Business Combination with a Related Person, the Continuing Directors by a two-thirds vote shall determine the Highest Equivalent Price for each class and series of capital stock of the Company.

 

(l)            The term “Fair Market Value” shall mean (1) in the case of stock, the highest closing sale price during the 30-day period immediately preceding the date in question of a share of such stock on the New York Stock Exchange’s consolidated transaction reporting system, or, if such stock is not listed on such Exchange, on the principal United States securities exchange registered under the Securities Exchange Act of 1934 on which such stock is listed, or, if such stock is not listed on any such exchange, the highest closing bid quotation with respect to a share of such stock during the 30-day period preceding the date in question on the National Association of Securities Dealers, Inc. Automated Quotation System or any system then in use, or if no such quotations are available, the fair market value on the date in question of a share of such stock as determined by the Continuing Directors; and (2) in the case of property other than stock or cash, the fair market value of such property on the date in question as determined by a two-thirds vote of the Continuing Directors.

 



 

4.3           Miscellaneous .

 

(a)           The Continuing Directors, by a two-thirds vote, are authorized to determine for purposes of this Division D on the basis of information known to them after reasonable inquiry:  (1) whether a Person is a Related Person, (2) the number of shares of Voting Stock Beneficially Owned by any Person, (3) whether a Person is an Affiliate or Associate of another, (4) whether certain assets constitute a Substantial Part of the assets of any Person, (5) the amounts of prices paid, market prices, and other factors relative to fixing the Highest Equivalent Price of shares of capital stock of the Company and (6) the Fair Market Value of property, securities and Other Consideration received in a Business Combination.  Any such determination made in good faith shall be binding and conclusive on all parties.

 

(b)           Nothing contained in this Division D shall be construed to relieve any Related Person from any fiduciary obligation imposed by law.

 

(c)           The fact that any Business Combination complies with the conditions set forth in Subsection (a)(2) of Section 4.1 of this Division D shall not be construed to impose any fiduciary duty, obligation or responsibility on the Board of Directors, or any member thereof, to approve such Business Combination or recommend its adoption or approval to the shareholders of the Company, nor shall such compliance limit, prohibit or otherwise restrict in any manner the Board of Directors, or any member thereof, with respect to evaluations of or actions and responses taken with respect to such Business Combination.

 

(d)           Notwithstanding any other provisions of law, the Articles or the By-Laws of the Company, the affirmative vote of the holders of not less than 80% of the voting power of the Voting Stock of the Company, voting together as a single class, shall be required to amend, alter, change or repeal, or adopt any provision inconsistent with, this Division D.

 

Sixth :  Henceforth, these Articles of the Company shall not include any prior documents.

 


Exhibit 3.3

 

EQT CORPORATION

 

AMENDED AND RESTATED

 

BYLAWS

 

(Amended through November 13, 2017)

 

ARTICLE I

 

MEETINGS OF SHAREHOLDERS

 

Section 1.01           All meetings of the shareholders shall be held at the principal office of the Company or such other places, either within or without the Commonwealth of Pennsylvania, as the Board of Directors may from time to time determine.

 

Section 1.02           An annual meeting of shareholders shall be held in each calendar year at such time and place as the Board of Directors shall determine.  If the annual meeting shall not be called and held during such calendar year, any shareholder may call such meeting at any time thereafter.

 

Section 1.03           Each person elected as a Director of the Company, whether to succeed a person whose term of office as a Director has expired (including the expiration of such person’s term) or to fill any vacancy, shall be elected for a term expiring at the next annual meeting.  Notwithstanding the foregoing, each Director elected shall hold office until such Director’s successor shall have been duly elected and qualified or until such Director’s earlier death, resignation or removal.

 

All elections of Directors shall be conducted by three (3) Judges of Election, who need not be shareholders, appointed by the Board of Directors.  If any such appointees are not present, the vacancy shall be filled by the presiding officer of the meeting.  The Chairman of the Board shall preside and the Secretary shall take the minutes at all meetings of the shareholders.  In the absence of the Chairman of the Board, the Chief Executive Officer shall preside.  In the absence of both, the presiding officer shall be the Chairman of the Executive Committee or such other presiding officer as may be designated by the Board of Directors or, if not so designated, by the shareholders of the Company, and if the Secretary is unable to do so, the presiding officer shall designate any person to take the minutes of the meeting.

 

Section 1.04           The presence, in person or by proxy, of the holders of a majority of the voting power of all shareholders shall constitute a quorum except as otherwise provided by law or by the Restated Articles of Incorporation (the “Restated Articles”) of the Company.  If a meeting is not organized because a quorum is not present, the shareholders present may adjourn the meeting to such time and place as they may determine, except that any meeting at which Directors are to be elected shall be adjourned only from day to day, or for such longer periods not exceeding fifteen (15) days each, as may be directed by a majority of the voting stock present.

 



 

Section 1.05           Shareholders entitled to vote on any matter shall be entitled to one (1) vote for each share of capital stock standing in their respective names upon the books of the Company to be voted by the shareholder in person or by his or her duly authorized proxy or attorney.  The validity of every unrevoked proxy shall cease eleven (11) months after the date of its execution unless some other definite period of validity shall be expressly provided therein, but in no event shall a proxy, unless coupled with an interest, be voted on after three (3) years from the date of its execution.  All questions shall be decided by the affirmative vote of a majority of the shares cast (excluding abstentions) and entitled to vote on the matter, unless otherwise expressly provided by law, the Restated Articles of the Company or these Bylaws.

 

Section 1.06           Special meetings of shareholders may be called by the Board of Directors or by the Chief Executive Officer.

 

Section 1.07           Notice of the annual meeting and of all special meetings of shareholders shall be given by sending a written or printed notice thereof by mail or, to the extent permitted by applicable law, electronic transmission, specifying the place, day, and hour of the meeting and, in the case of a special meeting of shareholders, the general nature of the business to be transacted, to each shareholder at the address appearing on the books of the Company, or the address supplied by such shareholder to the Company for the purpose of notice, at least five (5) days before the day named for the meeting, unless such shareholders shall waive notice or be in attendance at the meeting.

 

Section 1.08           (a) At any annual meeting of shareholders, only such nominations of persons for election to the Board of Directors shall be made, and only such other business shall be conducted or considered, as shall have been properly brought before the meeting.  For nominations to be properly made at an annual meeting, and proposals of other business to be properly brought before an annual meeting, nominations and proposals of other business must be (i) specified in the notice of the meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (ii) otherwise properly brought before the annual meeting, by or at the direction of the Board of Directors, (iii) otherwise properly requested to be brought before the annual meeting by a shareholder of the Company in accordance with Sections 1.08 and 1.09 of these Bylaws, or (iv) with respect to a nomination at an annual meeting of shareholders held in or after 2017 of a Shareholder Nominee by an Eligible Shareholder, in accordance with Section 1.11 of these Bylaws (each such capitalized term as defined in Section 1.11, and such nominations, “Proxy Access Nominations”), in accordance with such Section.  For nominations of persons for election to the Board of Directors or proposals of other business to be properly requested by a shareholder to be brought before an annual meeting, a shareholder must (i) be a shareholder of record at the time of giving of notice of such annual meeting by or at the direction of the Board of Directors and at the time of the annual meeting or, with respect to Proxy Access Nominations, qualify as an Eligible Shareholder pursuant to Section 1.11 of these Bylaws and otherwise comply with such Section, (ii) be entitled to vote at such annual meeting, and (iii) comply with the procedures set forth in these Bylaws as to such business or nomination.  The immediately preceding sentence (and, as applicable, Section 1.11 of these Bylaws with respect to Proxy Access Nominations) shall be the exclusive means for a shareholder to make nominations for election to the Board of Directors or to bring other business proposals (other than matters properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and included in the Company’s notice of meeting) before an

 

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annual meeting of shareholders.  Subject to Section 1.11 of these Bylaws with respect to Proxy Access Nominations and subject to Rule 14a-8 under the Exchange Act with respect to qualifying shareholder proposals submitted thereunder, nothing in these Bylaws shall be construed to permit any shareholder, or give any shareholder the right, to include or have disseminated or described in the Company’s proxy statement any nomination of a Director or Directors or any other business proposal.

 

(b)           At any special meeting of the shareholders, only such business shall be conducted or considered, as shall have been properly brought before the meeting pursuant to the Company’s notice of meeting.  To be properly brought before a special meeting, proposals of business must be (i) specified in the Company’s notice of meeting (or any supplements thereto) given by or at the direction of the Board of Directors or (ii) otherwise properly brought before the special meeting by or at the direction of the Board of Directors.

 

(c)           Except as otherwise provided by law, the Restated Articles of the Company or these Bylaws, the presiding officer of a shareholders’ meeting shall have the power to determine whether a proposed nomination for election to the Board of Directors or any other business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with these Bylaws and, if any proposed nomination or other business is not in compliance with these Bylaws, to declare that no action shall be taken on such nomination or other proposal and such nomination or other proposal shall be disregarded.

 

Section 1.09           (a) For any nomination or any other business to be properly brought before an annual meeting by a shareholder pursuant to Section 1.08(a)(iii) of these Bylaws, the shareholder must have given timely written notice thereof (including, in the case of nominations, the completed and signed questionnaire, representation, agreement and majority voting-related conditional resignation required by Section 1.10 of these Bylaws) and timely updates and supplements thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder action.  For the avoidance of doubt, Proxy Access Nominations pursuant to Section 1.08(a)(iv) are governed by the timing, notice and other provisions set forth in Section 1.11 of these Bylaws.

 

To be timely, a shareholder’s notice must be delivered to the Secretary at the principal executive offices of the Company not earlier than the close of business on the one hundred and twentieth (120th) day, and not later than the close of business on the ninetieth (90th) day, prior to the first anniversary of the preceding year’s annual meeting; provided , however , that if the Company changes the date of its annual meeting by more than thirty (30) days from the anniversary date of the prior year’s annual meeting, then to be timely such notice must be so delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not later than the later of (i) the close of business on the ninetieth (90th) day prior to such annual meeting or (ii) the close of business on the tenth (10th) day following the date of the Company’s Public Announcement (as defined below) of such annual meeting.  In no event shall any adjournment or postponement of an annual meeting, or the Public Announcement thereof, commence a new time period for the giving of a shareholder’s notice as described above.

 

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In addition, to be timely, a shareholder’s notice shall further be updated and supplemented, if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of the record date for the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to the Secretary at the principal executive offices of the Company no later than five (5) business days after the record date for the meeting in the case of the update and supplement required to be made as of the record date, and not later than eight (8) business days prior to the date for the meeting, any adjournment or postponement thereof in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof.  For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these Bylaws shall not limit the Company’s rights with respect to any deficiencies in any notice provided by a shareholder, extend any applicable deadlines hereunder or under any other provision of the Bylaws or enable or be deemed to permit a shareholder who has previously submitted notice hereunder, or under any other provision of the Bylaws, to amend or update any proposal or to submit any new proposal, including without limitation by changing or adding nominees, matters, business and/or resolutions proposed to be brought before a meeting of the shareholders.

 

(b)           (i) To be in proper form, a shareholder’s notice to the Secretary must include the following, as applicable:

 

(A)          as to each Proposing Person (as defined below), a shareholder’s notice must set forth:  (1) the name and address of such Proposing Person (including, if applicable, the name and address that appear on the Company’s books and records), (2)(a) the class or series and number of shares of the Company which are, directly or indirectly, beneficially owned (as defined below) or owned of record by such Proposing Person and whether such person has sole beneficial ownership of such shares (and if not solely beneficially owned, a description of such person’s beneficial ownership in such shares), (b) any option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to, or with a value derived in whole or in part from the value (or change in value) of, any class or series of shares of the Company, or any derivative or synthetic arrangement having the characteristics of a long position in any class or series of shares of the Company, or any contract, derivative, swap or other transaction or series of transactions designed to produce economic benefits and risks that correspond substantially to the ownership of any class or series of shares of the Company, including due to the fact that the value of such contract, derivative, swap or other transaction or series of transactions is determined by reference to the price, value or volatility of any class or series of shares of the Company, whether or not such instrument, contract or right shall be subject to settlement in the underlying class or series of shares of the Company, through the delivery of cash or other property, or otherwise, and without regard of whether any Proposing Person may have entered into transactions that hedge or mitigate the economic effect of such instrument, contract or right or any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the Company (any of the foregoing, a “Derivative Instrument”) directly or indirectly owned beneficially by such Proposing Person, (c) any proxy, contract, arrangement, understanding, or relationship pursuant to which such Proposing Person has a right to vote any class or series of shares of any security of the Company, (d) any agreement, arrangement, understanding, relationship or otherwise,

 

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including any repurchase or similar so-called “stock borrowing” agreement or arrangement, engaged in, directly or indirectly, by such Proposing Person, the purpose or effect of which is to mitigate loss to, or reduce the economic risk of ownership of any class or series of the shares of the Company by, or manage the risk of share price changes for, or increase or decrease the voting power of, such Proposing Person with respect to any class or series of the shares of the Company, or which provides, directly or indirectly, the opportunity to profit or share in any profit derived from any decrease in the price or value of any class or series of the shares of the Company (any of the foregoing, “Short Interests”), (e) any rights to dividends on the shares of the Company beneficially owned by such Proposing Person that are separated or separable from the underlying shares of the Company, (f) any proportionate interest in shares of the Company or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such Proposing Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner of such general or limited partnership, (g) any performance-related fees (other than an asset-based fee) that such Proposing Person is entitled to based on any increase or decrease in the value of shares of the Company or Derivative Instruments, if any, as of the date of such notice, including without limitation any such interests held by members of such Proposing Person’s immediate family sharing the same household, (h) any equity interests or any Derivative Instruments or Short Interests in any competitor of the Company or any affiliate thereof held by such Proposing Person, and (i) any direct or indirect interest of such Proposing Person in any contract with the Company, any affiliate of the Company or any competitor of the Company (including, in any such case, without limitation any employment agreement, collective bargaining agreement, commercial contract, or consulting agreement), (3) any other information relating to such Proposing Person that would be required to be disclosed in a proxy statement and form of proxy or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of Directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (4) any other information that would be required to be set forth in a Schedule 13D filed pursuant to Rule 13d-1(a) or an amendment pursuant to Rule 13d-2(a) if such a statement were required to be filed under the Exchange Act and the rules and regulations promulgated thereunder by such Proposing Person.

 

(B)          If the notice relates to any business other than a nomination of a Director or Directors that the shareholder proposes to bring before the meeting, a shareholder’s notice must, in addition to the matters set forth in paragraph (A) above, also set forth:  (1) a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest of such shareholder and beneficial owner, if any, in such business, (2) the text of the proposal or business (including the text of any resolutions proposed for consideration), (3) any material interest of the Proposing Person in the business being proposed by such Proposing Person (whether by holdings of securities, by virtue of being a creditor or contractual counterparty of the Company or of a third party, or otherwise), and (4) a description of all agreements, arrangements and understandings between such Proposing Person, if any, and any other person or persons (including their names) in connection with the proposal of such business by such Proposing Person.

 

(C)          As to each person, if any, whom the shareholder proposes (including on behalf of any Proposing Person) to nominate for election or reelection to the Board of Directors, a shareholder’s notice must, in addition to the matters set forth in paragraph (A)

 

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above, also set forth:  (1) all information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of Directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected) and (2) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three (3) years, and any other material relationships, between or among any Proposing Person, on the one hand, and each proposed nominee and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the Proposing Person were the “registrant” for purposes of such rule and the nominee were a Director or executive officer of such registrant.

 

(D)          With respect to each person, if any, whom the shareholder proposes (including on behalf of a Proposing Person) to nominate for election or reelection to the Board of Directors, a shareholder’s notice must, in addition to the matters set forth in paragraphs (A) and (C) above, also include a completed and signed questionnaire, representation, agreement and majority voting-related conditional resignation required by Section 1.10 of these Bylaws.  The Company may require any proposed nominee to furnish such other information as may reasonably be required by the Company to determine the eligibility of such proposed nominee to serve as an independent Director of the Company or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nominee.

 

(ii)           For purposes of these Bylaws, (A) “Public Announcement” shall mean disclosure in a press release reported by a national news service or in a document publicly filed by the Company with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder; (B) the term “Proposing Person” shall mean (1) the shareholder providing the notice of nomination or business proposed to be brought before an annual meeting, (2) if the shareholder providing the notice of nomination or business proposed to be brought before an annual meeting is not the sole beneficial owner of all of the shares of the Company’s Common Stock or Preferred Stock listed in such notice, the other beneficial owner or beneficial owners of any of the shares of the Company’s Common Stock or Preferred Stock listed in such notice, (3) any affiliate or associate (each within the meaning of Rule 12b-2 under the Exchange Act) of such shareholder or beneficial owner and (4) any other person with whom or with which such shareholder or beneficial owner (or any of their respective affiliates or associates) is acting in concert; and (C) a person shall be deemed a “beneficial owner” of, and shall be deemed to “beneficially own” (1) any securities or interest that such person or any of such person’s affiliates or associates (each within the meaning of Rule 12b-2 under the Exchange Act), directly or indirectly, has the right to acquire (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding (whether or not in writing) or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise and (2) any securities or interest of which such person or any of such person’s affiliates or associates (each within the meaning of Rule 12b-2 under the Exchange Act) is a “beneficial owner” within the meaning of Rule 13d-3 promulgated under the Exchange Act.

 

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(iii)          Notwithstanding the provisions of these Bylaws, a shareholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder with respect to the matters set forth in these Bylaws; provided , however , that any references in these Bylaws to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit the requirements applicable to nominations or proposals as to any other business to be considered pursuant to Section 1.08 or, as applicable, Section 1.11, of these Bylaws.

 

Section 1.10           For a nominee of a Proposing Person to be eligible for election as a Director of the Company, there must be delivered for such nominee (in accordance with the time periods described for delivery of notice under Section 1.09 or, as applicable, Section 1.11 of these Bylaws) to the Secretary at the principal executive offices of the Company:  (1) a completed written questionnaire of such nominee with respect to the background and qualification of such nominee and the background of any other person or entity on whose behalf the nomination is being made (which questionnaire shall be provided by the Secretary upon written request); (2) an executed written representation and agreement of such nominee (in the form provided by the Secretary upon request) that such nominee (i) is not and will not become a party to (A) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a Director of the Company, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed therein or (B) any Voting Commitment that could limit or interfere with such nominee’s ability to comply, if elected as a Director of the Company, with such nominee’s fiduciary duties under applicable law, (ii) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a Director that has not been disclosed therein, and (iii) in such nominee’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a Director of the Company, and will comply with all applicable corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Company publicly disclosed from time to time; and (3) a conditional resignation in accordance with the Company’s resignation policy in connection with majority voting (the form of which shall be provided by the Secretary upon written request).

 

Section 1.11           Subject to the terms and conditions set forth in these Bylaws, the Company shall include in its proxy materials for an annual meeting of shareholders held in or after 2017 the name, together with the Required Information (as defined below), of any person properly nominated for election (the “Shareholder Nominee”) to the Board of Directors by a shareholder or group of shareholders that satisfy the requirements of Section 1.11, including qualifying as an Eligible Shareholder (as defined in paragraph (D) below), and that expressly elects at the time of providing the written notice required by this Section 1.11 (a “Proxy Access Notice”) to have its nominee included in the Company’s proxy materials pursuant to this Section 1.11.  For the purposes of this Section 1.11:

 

(1)           “Voting Stock” shall mean outstanding shares of capital stock of the Company entitled to vote generally for the election of Directors;

 

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(2)           “Constituent Holder” shall mean any shareholder, collective investment fund included within a Qualifying Fund (as defined in paragraph (D) below) or beneficial holder whose stock ownership is counted for the purposes of qualifying as holding the Proxy Access Request Required Shares (as defined in paragraph (D) below) or qualifying as an Eligible Shareholder (as defined in paragraph (D) below);

 

(3)           “affiliate” and “associate” shall have the meanings ascribed thereto in Rule 405 under the Exchange Act; provided , however , that the term “partner” as used in the definition of “associate” shall not include any limited partner that is not involved in the management of the relevant partnership; and

 

(4)           a shareholder (and any Constituent Holders) shall be deemed to “own” only those outstanding shares of Voting Stock as to which the shareholder or any Constituent Holder possesses both (a) the full voting and investment rights pertaining to the shares and (b) the full economic interest in (including the opportunity for profit and risk of loss on) such shares.  The number of shares calculated in accordance with the foregoing clauses (a) and (b) shall be deemed not to include (and to the extent any of the following arrangements have been entered into by affiliates of the shareholder (or of any Constituent Holder), shall be reduced by) any shares (x) sold by such shareholder (or any of its affiliates) or such Constituent Holder (or any of its affiliates) in any transaction that has not been settled or closed, including any short sale, (y) borrowed by such shareholder (or any of its affiliates) or such Constituent Holder (or any of its affiliates) for any purposes or purchased by such shareholder (or any of its affiliates) or such Constituent Holder (or any of its affiliates) pursuant to an agreement to resell or (z) subject to any Short Interest or Derivative Instrument, which interest or instrument has, or is intended to have, or if exercised by either party thereto would have, the purpose or effect of (i) reducing in any manner, to any extent or at any time in the future, such shareholder’s (or affiliate’s) or such Constituent Holder’s (or affiliate’s) full right to vote or direct the voting of any such shares, and/or (ii) hedging, offsetting or altering to any degree gain or loss arising from the full economic ownership of such shares by such shareholder (or affiliate) or such Constituent Holder (or affiliate), other than any such arrangements solely involving an exchange listed multi-industry market index fund in which Voting Stock represents at the time of entry into such arrangement less than ten percent (10%) of the proportionate value of such index.  A shareholder or Constituent Holder shall “own” shares held in the name of a nominee or other intermediary so long as the shareholder or Constituent Holder retains the right to instruct how the shares are voted with respect to the election of Directors and the right to direct the disposition thereof and possesses the full economic interest in the shares.  A shareholder’s ownership or Constituent Holder’s ownership of shares shall be deemed to continue during any period in which such shareholder or Constituent Holder has loaned such shares or delegated any voting power over such shares by means of a proxy, power of attorney or other instrument or arrangement which in either case of such loan or delegation is recallable and/or revocable at any time by the shareholder or Constituent Holder, as applicable.  The terms “owned,” “owning” and other variations of the word “own” shall have correlative meanings.

 

(A)          For purposes of this Section 1.11, the “Required Information” that the Company will include in its proxy statement is (1) the information

 

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concerning the Shareholder Nominee and the Eligible Shareholder that the Company determines is required to be disclosed in the Company’s proxy statement by the regulations promulgated under the Exchange Act; and (2) if the Eligible Shareholder so elects, a Statement (as defined in paragraph F below).  The Company shall also include the name of the Shareholder Nominee in its proxy card.  For the avoidance of doubt, and any other provision of these Bylaws notwithstanding, the Company may in its sole discretion solicit against, and include in the proxy statement its own statements or other information relating to, any Eligible Shareholder and/or Shareholder Nominee, including any information provided to the Company with respect to the foregoing.

 

(B)          To be timely, a shareholder’s Proxy Access Notice must be delivered to the principal executive offices of the Company not later than the close of business on the one hundred twentieth (120th) day nor earlier than the close of business on the one hundred fiftieth (150th) day prior to the first anniversary of the date that the Company mailed its proxy statement for the preceding year’s annual meeting of shareholders.  In no event shall any adjournment or postponement of an annual meeting, or the Public Announcement thereof, commence a new time period for the giving of a Proxy Access Notice.

 

(C)          The number of Shareholder Nominees (including Shareholder Nominees that were submitted by an Eligible Shareholder for inclusion in the Company’s proxy materials pursuant to this Section 1.11 but either are subsequently withdrawn or that the Board of Directors decides to nominate as Board of Directors’ nominees) appearing in the Company’s proxy materials with respect to an annual meeting of shareholders shall be the greater of (x) two and (y) the largest whole number that does not exceed twenty percent (20%) of the number of directors in office as of the last day on which a Proxy Access Notice may be delivered in accordance with the procedures set forth in this Section 1.11 (such greater number, the “Permitted Number”); provided , however , that the Permitted Number shall be reduced by:

 

(1)           the number of such director candidates for which the Company shall have received one or more valid shareholder notices nominating director candidates pursuant to Section 1.08 (but not Section 1.11) of these Bylaws;

 

(2)           the number of directors in office or director candidates that in either case will be included in the Company’s proxy materials with respect to such annual meeting as an unopposed (by the Company) nominee pursuant to any agreement, arrangement or other understanding with any shareholder or group of shareholders (other than any such agreement, arrangement or understanding entered into in connection with an acquisition of Voting Stock, by such shareholder or group of shareholders, from the Company), other than any such director referred to in this clause (2) who at the time of such annual meeting will have served as a director continuously, as a nominee of the Board of Directors, for at least two annual terms, but only to the extent the Permitted Number after such reduction with respect to this clause (2) equals or exceeds one; and

 

(3)           the number of directors in office that will be included in the Company’s proxy materials with respect to such annual meeting for whom access to the Company’s proxy materials was previously provided pursuant to this Section 1.11, other than any such director referred to in this clause (3) who at the time of such annual meeting will

 

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have served as a director continuously, as a nominee of the Board of Directors, for at least two annual terms;

 

provided , further , that in the event the Board of Directors resolves to reduce the size of the Board of Directors effective on or prior to the date of the annual meeting, the Permitted Number shall be calculated based on the number of directors in office as so reduced.  In the event that the number of Shareholder Nominees submitted by Eligible Shareholders pursuant to this Section 1.11 exceeds the Permitted Number, each Eligible Shareholder will select one Shareholder Nominee for inclusion in the Company’s proxy materials until the Permitted Number is reached, going in order of the amount (largest to smallest) of shares of Voting Stock each Eligible Shareholder disclosed as owned in its Proxy Access Notice submitted to the Company.  If the Permitted Number is not reached after each Eligible Shareholder has selected one Shareholder Nominee, this selection process will continue as many times as necessary, following the same order each time, until the Permitted Number is reached.

 

(D)          An “Eligible Shareholder” is one or more shareholders of record or of beneficial ownership who own and have owned, or are acting on behalf of one (1) or more beneficial owners who own and have owned (in each case as defined above), in each case continuously for at least three (3) years as of both the date that the Proxy Access Notice is received by the Company pursuant to this Section 1.11, and as of the record date for determining shareholders eligible to vote at the annual meeting, at least three percent (3%) of the aggregate voting power of the Voting Stock (the “Proxy Access Request Required Shares”), and who continue to own the Proxy Access Request Required Shares at all times between the date such Proxy Access Notice is received by the Company and the date of the applicable annual meeting, provided that the aggregate number of shareholders, and, if and to the extent that a shareholder is acting on behalf of one or more beneficial owners, of such beneficial owners, whose stock ownership is counted for the purpose of satisfying the foregoing ownership requirement shall not exceed twenty (20).  Two (2) or more collective investment funds that are part of the same family of funds or sponsored by the same employer (a “Qualifying Fund”) shall be treated as one shareholder for the purpose of determining the aggregate number of shareholders in this paragraph (D), provided that each fund included within a Qualifying Fund otherwise meets the requirements set forth in this Section 1.11.  No shares may be attributed to more than one group constituting an Eligible Shareholder under this Section 1.11 (and, for the avoidance of doubt, no shareholder may be a member of more than one group constituting an Eligible Shareholder).  A record holder acting on behalf of one or more beneficial owners will not be counted separately as a shareholder with respect to the shares owned by beneficial owners on whose behalf such record holder has been directed in writing to act, but each such beneficial owner will be counted separately, subject to the other provisions of this paragraph (D), for purposes of determining the number of shareholders whose holdings may be considered as part of an Eligible Shareholder’s holdings.  For the avoidance of doubt, Proxy Access Request Required Shares will qualify as such if and only if the beneficial owner of such shares as of the date of the Proxy Access Notice has itself individually beneficially owned such shares continuously for the three-year (3-year) period ending on that date and through the other applicable dates referred to above (in addition to all other applicable requirements being met).

 

(E)           No later than the final date when a nomination pursuant to this Section 1.11 may be delivered to the Company, an Eligible Shareholder (including each

 

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Constituent Holder) must provide the following information in writing to the Secretary of the Company:

 

(1)           the name and address of, and number of shares of Voting Stock owned by, such person;

 

(2)           one or more written statements from the record holder of the shares (and from each intermediary through which the shares are or have been held during the requisite three-year (3 year) holding period) verifying that, as of a date within seven (7) calendar days prior to the date the Proxy Access Notice is delivered to the Company, such Eligible Shareholder (and each Constituent Holder) owns, and has owned continuously for the preceding three (3) years, the Proxy Access Request Required Shares, and such person’s agreement to provide:

 

(a)           within five (5) days after the record date for the annual meeting, written statements from the record holder and intermediaries verifying such person’s continuous ownership of the Proxy Access Request Required Shares through the record date, together with any additional information reasonably requested to verify such person’s ownership of the Proxy Access Request Required Shares; and

 

(b)           immediate notice if the Eligible Shareholder ceases to own any of the Proxy Access Request Required Shares prior to the date of the applicable annual meeting of shareholders;

 

(3)           the information contemplated by Section 1.09(b)(i)(A), (C), and (D) of these Bylaws (with references to a “Proposing Person” therein to include such Eligible Shareholder (including each Constituent Holder));

 

(4)           a representation that such person:

 

(a)           acquired the Proxy Access Request Required Shares in the ordinary course of business and not with the intent to change or influence control of the Company, and does not presently have such intent;

 

(b)           has not nominated and will not nominate for election to the Board of Directors at the annual meeting any person other than the Shareholder Nominee(s) being nominated pursuant to this Section 1.11;

 

(c)           has not engaged and will not engage in, and has not and will not be a “participant” in another person’s, “solicitation” within the meaning of Rule 14a-1(l) promulgated under the Exchange Act in support of the election of any individual as a Director at the annual meeting other than its Shareholder Nominee(s) or a nominee of the Board of Directors;

 

(d)           will not distribute to any shareholder any form of proxy for the annual meeting other than the form distributed by the Company; and

 

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(e)           will provide facts, statements and other information in all communications with the Company and its shareholders that are and will be true and correct in all material respects and do not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, and will otherwise comply with all applicable laws, rules and regulations in connection with any actions taken pursuant to this Section 1.11;

 

(5)           in the case of a nomination by an Eligible Shareholder comprised of a group of shareholders that together is such an Eligible Shareholder, the designation by all group members (including Constituent Holders), as evidenced by a written agreement provided to the Company signed by all group members (including Constituent Holders), of one group member that is authorized to act on behalf of all members of the nominating shareholder group with respect to the nomination and matters related thereto, including withdrawal of the nomination; and

 

(6)           an undertaking that such person agrees to:

 

(a)           assume all liability stemming from, and indemnify and hold harmless the Company and each of its Directors, officers and employees individually against any liability, loss or damages in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the Company or any of its Directors, officers or employees arising out of any legal or regulatory violation arising out of the Eligible Shareholder’s communications with the shareholders of the Company or out of the information that the Eligible Shareholder provided to the Company; and

 

(b)           file with the Securities and Exchange Commission any solicitation by the Eligible Shareholder of shareholders of the Company relating to the annual meeting at which the Shareholder Nominee will be nominated.

 

In addition, no later than the final date on which a Proxy Access Notice may be submitted under this Section 1.11, a Qualifying Fund whose stock ownership is counted for purposes of qualifying as an Eligible Shareholder must provide to the Secretary of the Company documentation reasonably satisfactory to the Company that demonstrates that the funds included within the Qualifying Fund are either part of the same family of funds or sponsored by the same employer.  In order to be considered timely, any information required by this Section 1.11 to be provided to the Company must be supplemented (by delivery to the Secretary of the Company) (1) no later than five (5) days following the record date for the applicable annual meeting, to disclose the foregoing information as of such record date, and (2) no later than the eighth (8th) day before the annual meeting, to disclose the foregoing information as of the date that is ten (10) days prior to such annual meeting.  For the avoidance of doubt, the requirement to update and supplement such information shall not permit any Eligible Shareholder or other person to change or add any proposed Shareholder Nominee or be deemed to cure any defects or limit the remedies (including without limitation under these Bylaws) available to the Company relating to any defect.

 

(F)           The Eligible Shareholder may provide to the Secretary of the Company, at the time the information required by this Section 1.11 is originally provided, a

 

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written statement for inclusion in the Company’s proxy statement for the annual meeting, not to exceed five hundred (500) words, in support of the candidacy of such Eligible Shareholder’s Shareholder Nominee (the “Statement”).  Notwithstanding anything to the contrary contained in this Section 1.11, the Company may omit from its proxy materials any information or Statement that it, in good faith, believes is materially false or misleading, omits to state any material fact, or would violate any applicable law or regulation.

 

(G)          No later than the final date when a nomination pursuant to this Section 1.11 may be delivered to the Company, each Shareholder Nominee must provide the Secretary at the principal executive offices of the Company the completed and signed questionnaire, representation, agreement and majority voting-related conditional resignation required by Section 1.10 of these Bylaws and:

 

(1)           provide an executed agreement, in a form deemed satisfactory by the Board of Directors or its designee (which form shall be provided by the Company reasonably promptly upon written request of a shareholder), that such Shareholder Nominee consents to being named in the Company’s proxy statement and form of proxy card (and will not agree to be named in any other person’s proxy statement or form of proxy card) as a nominee and to serving as a Director of the Company if elected;

 

(2)           complete, sign and submit all other questionnaires required of the Company’s Directors generally; and

 

(3)           provide such additional information as necessary to permit the Board of Directors to determine if any of the matters contemplated by paragraph (I) below apply to such Shareholder Nominee or if such nominee has any direct or indirect relationship with the Company or is or has previously been subject to any event specified in Item 401(f) of Regulation S-K (or successor rule) of the Securities and Exchange Commission.

 

In the event that any information or communications provided by the Eligible Shareholder (or any Constituent Holder) or the Shareholder Nominee to the Company or its shareholders ceases to be true and correct in all material respects or omits a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, each Eligible Shareholder or Shareholder Nominee, as the case may be, shall promptly notify the Secretary of the Company of any defect in such previously provided information and of the information that is required to correct any such defect; it being understood for the avoidance of doubt that providing any such notification shall not be deemed to cure any such defect or limit the remedies (including without limitation under these Bylaws) available to the Company relating to any such defect.

 

(H)          For the avoidance of doubt, any Shareholder Nominee who is included in the Company’s proxy statement for a particular annual meeting of shareholders, but subsequently is determined not to satisfy the eligibility requirements of this Section 1.11 or any other provision of the Company’s Bylaws, Restated Articles or other applicable regulation any time before the annual meeting of shareholders, will not be eligible for election at such annual meeting of shareholders.

 

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(I)            The Company shall not be required to include, pursuant to this Section 1.11, a Shareholder Nominee in its proxy materials for any annual meeting of shareholders, or, if the proxy statement already has been filed, to allow the nomination of a Shareholder Nominee, notwithstanding that proxies in respect of such vote may have been received by the Company:

 

(1)           who is not independent under the listing standards of the principal U.S. exchange upon which the common stock of the Company is listed (or other listing standards applicable to the Company), any applicable rules of the Securities and Exchange Commission and any publicly disclosed standards used by the Board of Directors in determining and disclosing independence of the Company’s Directors, in each case as determined by the Board of Directors;

 

(2)           whose service as a member of the Board of Directors would violate or cause the Company to be in violation of these Bylaws, the Restated Articles, the rules and listing standards of the principal U.S. exchange upon which the common stock of the Company is traded (or other such rules and listing standards applicable to the Company), or any applicable law, rule or regulation;

 

(3)           if the Eligible Shareholder (or any Constituent Holder) or applicable Shareholder Nominee otherwise breaches or fails to comply in any material respect with its obligations pursuant to this Section 1.11 or any agreement, representation or undertaking required by this Section; or

 

(4)           if the Eligible Shareholder ceases to be an Eligible Shareholder for any reason, including but not limited to not owning the Proxy Access Request Required Shares through the date of the applicable annual meeting.

 

For the purposes of this paragraph (I), clauses (1) and (2) and, to the extent related to a breach or failure by the Shareholder Nominee, clause (3) will result in the exclusion from the proxy materials pursuant to this Section 1.11 of the specific Shareholder Nominee to whom the ineligibility applies, or, if the proxy statement already has been filed, the ineligibility of such Shareholder Nominee to be nominated; provided , however , that clause (4) and, to the extent related to a breach or failure by an Eligible Shareholder (or any Constituent Holder), clause (3) will result in the Voting Stock owned by such Eligible Shareholder (or Constituent Holder) being excluded from the Proxy Access Request Required Shares (and, if as a result the Proxy Access Notice shall no longer have been filed by an Eligible Shareholder, the exclusion from the proxy materials pursuant to this Section 1.11 of all of the applicable shareholder’s Shareholder Nominees from the applicable annual meeting of shareholders or, if the proxy statement has already been filed, the ineligibility of all of such shareholder’s Shareholder Nominees to be nominated).

 

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ARTICLE II

 

GENERAL PROVISIONS

 

Section 2.01           The principal office of the Company shall be in the City of Pittsburgh, Pennsylvania, and shall be kept open during business hours every day except Saturdays, Sundays, and legal holidays, unless otherwise ordered by the Board of Directors or the Chief Executive Officer.

 

Section 2.02           The Company shall have a corporate seal which shall contain within a circle the following words:  “EQT Corporation, Pittsburgh, Pennsylvania” and in an inner circle the words “Corporate Seal.”

 

Section 2.03           The fiscal year of the Company shall begin with January 1 and end with December 31 of the same calendar year.

 

Section 2.04           The Board of Directors shall fix a time, not more than ninety (90) days prior to the date of any meeting of shareholders, or the date fixed for the payment of any dividend or distribution, or the date for any allotment of rights, or the date when any change or conversion or exchange of shares will be made or go into effect, as a record date for the determination of the shareholders entitled to notice of, or to vote at, any such meeting, or entitled to receive payment of any such dividend or distribution, or to receive any such allotment of rights, or to exercise the rights in respect of any such change, conversion, or exchange of shares.

 

ARTICLE III

 

BOARD OF DIRECTORS

 

Section 3.01           Regular meetings of the Board of Directors shall be held at least six (6) times each year, immediately after the annual meeting of shareholders and at such other times and places as the Board of Directors shall from time to time designate by resolution of the Board.  Notice need not be given of regular meetings of the Board held at the times and places fixed by resolution of the Board.

 

If the Board shall fail to designate the specific time and place of any regular meeting, such regular meeting shall be held at such time and place as designated by the Chief Executive Officer and, in such case, oral, telegraphic or written notice shall be duly served or sent or mailed by the Secretary to each Director not less than five (5) days before the meeting.

 

Section 3.02           Special meetings may be held at any time upon the call of the Chief Executive Officer, or the President in the absence of the Chief Executive Officer, at such time and place as he may deem necessary, or by the Secretary at the request of any two (2) members of the Board, by oral, telegraphic or written notice duly served or sent or mailed to each Director not less than twenty-four (24) hours before the meeting.

 

Section 3.03           Fifty percent (50%) of the Directors at the time in office shall constitute a quorum for the transaction of business.  Vacancies in the Board of Directors, including vacancies resulting from an increase in the number of Directors, shall be filled only by

 

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a majority vote of the remaining Directors then in office, though less than a quorum, except that vacancies resulting from removal from office by a vote of the shareholders may be filled by the shareholders at the same meeting at which such removal occurs.  A person elected to fill a vacancy in the Board of Directors shall hold office for a term expiring at the next annual meeting of shareholders held immediately following such person being elected to fill the vacancy.

 

Section 3.04           One (1) or more Directors may participate in a meeting of the Board or of a committee of the Board by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and all Directors so participating shall be deemed present at the meeting.

 

Section 3.05           The full Board of Directors shall consist of not less than five (5) nor more than fifteen (15) persons, the exact number to be fixed from time to time by the Board of Directors pursuant to a resolution adopted by a majority vote of the Directors then in office.

 

Section 3.06           The Board of Directors may elect one (1) of its members as its Chairman and one (1) of its members Vice Chairman.  Such persons may also be officers of the Company.  If the Chairman so elected is not also the Chief Executive Officer of the Company, he or she shall confer with the Chief Executive Officer as to the content of agendas for such meetings and shall consult with the Chief Executive Officer as to matters affecting or relating to the Board of Directors.  The Chairman and the Vice Chairman so elected shall serve until the first meeting of the Board following the next annual meeting of the shareholders.  The Board shall also fix the annual rate of compensation to be paid to the Chairman and the Vice Chairman for serving as such in addition to compensation paid to all non-officer members of the Board.  The Chairman shall preside at all meetings of the Board, preserve order, and regulate debate according to the usual parliamentary rules.  In the absence of the Chairman, the Vice Chairman shall be the presiding officer.

 

Section 3.07           No Director of this Company shall be permitted to serve in that capacity after the date of the annual meeting of shareholders next following his or her seventy-fourth (74th) birthday.  In order for any officer to become a nominee for election by the shareholders as a Director of the Company, such officer must have submitted to the Board of Directors prior to the time of such officer’s nomination an irrevocable resignation from the Board to take effect upon the termination of his employment as an officer of the Company, which resignation the Board shall have the discretion to determine whether to accept or reject, without the participation of the Director whose resignation is under consideration.

 

Section 3.08           No Director shall be personally liable for monetary damages as such (except to the extent otherwise provided by law) for any action taken, or any failure to take any action, unless such Director has breached or failed to perform the duties of his or her office under Title 42, Chapter 83, Subchapter F of the Pennsylvania Consolidated Statutes (or any successor statute relating to Directors’ standard of care and justifiable reliance); and the breach or failure to perform constitutes self-dealing, willful misconduct or recklessness.

 

If the Pennsylvania Consolidated Statutes are amended after May 22, 1987, the date this Section received shareholder approval, to further eliminate or limit the personal liability of Directors, then a Director shall not be liable, in addition to the circumstances set forth in this

 

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Section, to the fullest extent permitted by the Pennsylvania Consolidated Statutes, as so amended.

 

The provisions of this Section shall not apply to any actions filed prior to January 27, 1987, nor to any breach of performance of duty, or any failure of performance of duty, by any Director occurring prior to January 27, 1987.

 

Section 3.09           (a) In order for any person to be nominated as a Director of the Company, such person must have submitted to the Board of Directors prior to the time of such person’s nomination as a Director an irrevocable conditional resignation from the Board of Directors, to take effect upon the occurrence of all of the following conditions:  (i) such person stood for election to the Board of Directors at a shareholder meeting where the number of nominees did not exceed the number of Directors to be elected; (ii) at such shareholder meeting the votes by the shareholders entitled to vote in the election cast against such person’s reelection (excluding abstentions) exceeded the votes cast for such person’s reelection; and (iii) such resignation having been accepted by the Board of Directors.  Not later than ninety (90) days after the certification of an election by shareholders satisfying clauses (i) and (ii) the Board of Directors will decide, after receipt of a recommendation of the Corporate Governance Committee, whether to accept such conditional resignation.  The Director whose conditional resignation is being considered shall not participate in the recommendation of the Corporate Governance Committee or the decision of the Board of Directors with respect to his or her conditional resignation.  If there are not sufficient unaffected members of the Corporate Governance Committee to form a quorum, the unaffected independent Directors shall name a committee made up solely of unaffected independent Directors to make recommendations to the Board as to the acceptance of tendered resignation(s).  If the number of unaffected independent Directors is three (3) or fewer, all Directors may participate, with or without the naming of such committee as the Directors may deem appropriate, in the decision as to whether to accept the tendered resignations.  If the incumbent Director’s resignation is not accepted by the Board of Directors, such Director shall continue to serve until the next annual meeting and until his or her successor is duly elected, or his or her earlier resignation or removal.  If a Director’s resignation is accepted by the Board of Directors pursuant to this Bylaw, or if a nominee for Director is not elected and the nominee is not an incumbent Director, then the Board of Directors, in its sole discretion, may fill any resulting vacancy pursuant to the provisions of Section 3.03 of these Bylaws or may decrease the size of the Board of Directors pursuant to the provisions of Section 3.05 of these Bylaws.

 

(b)           In considering the question of whether to accept a conditional resignation, the Corporate Governance Committee and the Board of Directors shall be entitled to consider such facts and circumstances as deemed appropriate, including (i) whether the concerns raised by shareholders that led to the votes against can or should be cured, (ii) whether resignation of the Director is an appropriate response to the concerns raised by the shareholders, (iii) the Director’s historical and anticipated future commitment and contribution to the Board of Directors, (iv) whether the Director’s service on the Board of Directors is consistent with applicable regulatory requirements and listing standards, and without limitation (v) other matters in the interests of the Company.  The Board of Directors’ explanation of its decision shall be promptly disclosed on Form 8-K furnished to or filed with the Securities and Exchange Commission.

 

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ARTICLE IV

 

INDEMNIFICATION

 

Section 4.01           Directors and officers of the Company shall be indemnified as of right to the fullest extent not prohibited by law in connection with any actual or threatened action, suit or proceeding, civil, criminal, administrative, investigative or other (whether brought by or in the right of the Company or otherwise) arising out of their service to the Company or to another corporation, partnership, joint venture, trust or other enterprise at the request of the Company; provided , however , that the Company shall not indemnify any Director or officer in connection with a proceeding (or part thereof) initiated by such Director or officer (other than a proceeding to enforce such person’s rights to indemnification under this Article) unless such proceeding (or part thereof) was authorized by the Board.

 

Section 4.02           Employees of the Company who are not Directors or officers of the Company shall be indemnified as of right in connection with any actual or threatened action, suit or proceeding, civil, criminal, administrative, investigative or other (whether brought by or in the right of the Company or otherwise) arising out of their service to the Company or to another enterprise at the request of the Company if, as determined by the Company in its sole discretion, such employee acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Company and, with respect to any criminal proceeding, had no reasonable cause to believe that his conduct was unlawful; provided , however , that the Company shall not indemnify an employee in connection with a proceeding (or part thereof) initiated by such employee (other than a proceeding to enforce such person’s rights to indemnification under this Article) unless such proceeding (or part thereof) was authorized by the Board.

 

Section 4.03           The Company may indemnify agents of the Company who are not Directors, officers or employees of the Company with such scope and effect as determined by the Company.

 

Section 4.04           As soon as practicable after receipt by any person entitled to indemnification hereunder of actual knowledge of any action, suit or proceeding, such indemnified person shall notify the Company thereof if a claim for indemnification in respect thereof may be or is being made by such indemnified person against the Company under this Article.  With respect to any such action, suit or proceeding, the Company will be entitled to participate therein at its own expense and may assume the defense thereof.  After the Company notifies the indemnified person of its election to so assume the defense, the Company will not be liable to the indemnified person under this Article for any legal or other expenses subsequently incurred by the indemnified person in connection with the defense.  The Company shall not be obligated to indemnify an indemnified person under this Article for any amounts paid in settlement of any action or claim effected without its written consent.

 

Section 4.05           The Company may purchase and maintain insurance to protect itself and any Director, officer, agent or employee against any liability asserted against and incurred by him or her in respect of such service, whether or not the Company would have the power to indemnify him or her against such liability by law or under the provisions of this

 

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Article.  The provisions of this Article shall be applicable to persons who have ceased to be Directors, officers, agents, and employees and shall inure to the benefit of the heirs, executors, and administrators of persons entitled to indemnity hereunder.

 

Indemnification under this Article shall include the right to be paid expenses incurred in advance of the final disposition of any action, suit or proceeding for which indemnification is provided, upon receipt of an undertaking by or on behalf of the indemnified person to repay such amount if it ultimately shall be determined that he or she is not entitled to be indemnified by the Company; provided , however , that the indemnified person shall reimburse the Company for any amounts paid by the Company as indemnification of expenses to the extent the indemnified person receives payment for the same expenses from any insurance carrier or from another party.  The indemnification rights granted herein are not intended to be exclusive of any other rights to which those seeking indemnification may be entitled and the Company may enter into contractual agreements with any Director, officer, agent or employee to provide such individual with indemnification rights as set forth in such agreement or agreements, which rights shall be in addition to the rights set forth in this Section.

 

The provisions of this Article shall be applicable to actions, suits or proceedings commenced after the adoption hereof, whether arising from acts or omissions occurring before or after the adoption hereof.

 

ARTICLE V

 

STANDING COMMITTEES

 

Section 5.01           The Board of Directors shall have authority to appoint an Executive Committee, a Finance Committee, an Audit Committee, and such other committees as it deems advisable, each to consist of two (2) or more Directors, and from time to time to define the duties and fix the number of members of each committee.  In the absence or disqualification of any member of any such committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not constituting a quorum, may unanimously appoint another Director or Directors to act at the meeting in the place of any such absent or disqualified member or members.

 

ARTICLE VI

 

OFFICERS

 

Section 6.01           The principal officers of the Company shall be chosen by the Board of Directors and shall be a Chief Executive Officer, a President, a Secretary, and a Treasurer.  The Board of Directors may also choose such other officers, including one (1) or more Executive Vice Presidents, Senior Vice Presidents and Vice Presidents, one (1) or more Assistant Secretaries and Assistant Treasurers, and one (1) or more persons having such other titles, as it may determine.

 

Section 6.02           The Board of Directors shall, at the first meeting of the Board after its election, elect the principal officers of the Company, and may elect additional officers at that

 

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or any subsequent meeting.  All officers elected by the Board of Directors shall hold office at the pleasure of the Board.

 

Section 6.03           At the discretion of the Board of Directors, any two (2) of the offices mentioned in Section 6.01 hereof may be held by the same person except the offices of Chief Executive Officer and Secretary.

 

Section 6.04           The officers of the Company shall hold office until the next annual meeting of the Board and until their successors are chosen and qualify in their stead or until their earlier resignation or removal.  Any officer or agent may be removed by the Board of Directors whenever in its judgment the best interests of the Company will be served thereby.  Such removal, however, shall be without prejudice to the contract rights of the person so removed.  If the office of any officer becomes vacant for any reason, the vacancy may be filled by the Board of Directors.

 

CHIEF EXECUTIVE OFFICER

 

Section 6.05           The Chief Executive Officer shall have general and active management of the business of the Company; and shall see that all orders and resolutions of the Board of Directors are carried into effect.  In addition to any specific powers conferred upon the Chief Executive Officer by these Bylaws, he or she shall have and exercise such further powers and duties as from time to time may be conferred upon or assigned to him or her by the Board of Directors.

 

PRESIDENT

 

Section 6.06           The President shall have such duties and powers as may be assigned to him or her from time to time by the Board of Directors or the Chief Executive Officer and shall also be the Chief Operating Officer of the Company.  During the absence or inability of the Chief Executive Officer to serve, the President shall have all the powers and perform the duties of the Chief Executive Officer, including in the absence of the Chairman presiding at all meetings of the shareholders.

 

SECRETARY

 

Section 6.07           The Secretary shall attend all meetings of the shareholders and Board of Directors; shall record all votes and the minutes of all proceedings in a book to be kept for that purpose; and shall perform like duties for all committees of the Board, if so designated by the Board.  The Secretary shall keep in safe custody the seal of the Company and when authorized by the Board of Directors, affix the seal of the Company to any instrument requiring it and, when so affixed, it shall be attested by the signature of the Secretary or by the signature of the Treasurer or an Assistant Secretary.  The Secretary shall have custody of all contracts, leases, assignments, and all other valuable instruments unless the Board of Directors or the Chief Executive Officer shall otherwise direct.  The Secretary shall give, or cause to be given, notice of all annual meetings of the shareholders and any other meetings of the shareholders and, when required, notice of the meetings of the Board of Directors; and, in general, shall perform all duties incident to the office of a secretary of a corporation, and such other duties as may be prescribed by the Board of Directors or the Chief Executive Officer.

 

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Section 6.08           The Board of Directors may elect one (1) or more Assistant Secretaries who shall perform the duties of the Secretary in the event of the Secretary’s absence or inability to act, as well as such other duties as the Board of Directors, the Chief Executive Officer, or the Secretary may from time to time designate.

 

TREASURER

 

Section 6.09           The Treasurer shall have charge of all moneys and securities belonging to the Company subject to the direction and control of the Board of Directors.  The Treasurer shall deposit all moneys received by the Company in the name and to the credit of the Company in such bank or other place or places of deposit as the Board of Directors shall designate; and for that purpose the Treasurer shall have power to endorse for collection or payment all checks or other negotiable instruments drawn payable to the Treasurer’s order or to the order of the Company.  The Treasurer shall disburse the moneys of the Company upon properly drawn checks which shall bear the signature of the Treasurer or of any Assistant Treasurer or of the Cashier (who shall be appointed by the Assistant Treasurer with the approval of the Treasurer).  All checks shall be covered by vouchers which shall be certified by the Controller or the Auditor of Disbursements or such other employee of the Company (other than the Cashier) as may be designated by the Treasurer from time to time.  The Treasurer may create, from time to time, such special imprest funds as may, in the Treasurer’s discretion, be deemed advisable and necessary, and may open accounts with such bank or banks as may be deemed advisable for the deposit therein of such special imprest funds, and may authorize disbursements therefrom by checks drawn against such accounts by the Treasurer, any Assistant Treasurer, or such other employee of the Company as may be designated by the Treasurer from time to time.  The Treasurer shall perform such other duties as may be assigned from time to time by the Board of Directors, the Chief Executive Officer or the Chief Financial Officer.

 

Section 6.10           No notes or similar obligations shall be made except jointly by the Chief Executive Officer or the Chief Financial Officer and the Treasurer or an Assistant Treasurer, except as otherwise authorized by the Board of Directors.

 

Section 6.11           The Board of Directors may elect one (1) or more Assistant Treasurers who shall perform the duties of the Treasurer in the event of the Treasurer’s absence or inability to act, as well as such other duties as the Board of Directors, the Chief Executive Officer, the Chief Financial Officer or the Treasurer may from time to time designate.

 

VICE PRESIDENTS AND OTHER OFFICERS

 

Section 6.12           Vice Presidents and other officers shall perform such duties as may be assigned to them from time to time by the Board of Directors or the Chief Executive Officer as their positions are established or changed.

 

GENERAL

 

Section 6.13           Fidelity bond coverage shall be obtained on such officers and employees of the Company, and of such type and in such amounts as may be deemed proper and advisable.

 

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ARTICLE VII

 

CERTIFICATED AND UNCERTIFICATED SHARES

 

Section 7.01           All classes and series of shares of capital stock of the Company, or any part thereof, shall be represented by stock certificates or shall be uncertificated shares, as determined by the Board of Directors, provided , that every shareholder shall be entitled to a share certificate if he or she so requests in the manner prescribed by the Company.

 

(a)           Shares of capital stock of the Company represented by certificates shall be signed by the Chief Executive Officer, the President or a Vice President, and countersigned by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer, and sealed with the corporate seal of the Company.  Said certificates shall be in such form as the Board of Directors may from time to time prescribe.

 

(b)           Within a reasonable time after the issuance or transfer of uncertificated shares, the Company shall send to the registered owner thereof a written notice containing the information otherwise required to be set forth or stated on a stock certificate.

 

Section 7.02           The Board of Directors may from time to time appoint an incorporated company or companies to act as Transfer Agent and Registrar of shares of the Company, and in the case of the appointment of such Transfer Agent, the officers of the Company may sign and seal stock certificates in blank and place them with the transfer books in the custody and control of such Transfer Agent.  If any stock certificate is signed by a Transfer Agent or Registrar, the signature of any such officer and the corporate seal upon any such certificate may be a facsimile, engraved or printed.

 

Section 7.03           New certificates for shares of stock may be issued to replace certificates lost, stolen, destroyed or mutilated upon such terms and conditions as the Board may from time to time determine.

 

ARTICLE VIII

 

EXCLUSIVE FORUM FOR ADJUDICATION OF DISPUTES

 

Section 8.01           Unless the Company consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Company, (ii) any action asserting a claim of breach of a fiduciary duty owed by any Director or officer or other employee of the Company to the Company or the Company’s shareholders, (iii) any action asserting a claim against the Company or any Director or officer or other employee of the Company arising pursuant to any provision of the Pennsylvania Business Corporation Law or the Company’s Restated Articles or these Bylaws (as either may be amended from time to time), or (iv) any action asserting a claim against the Company or any Director or officer or other employee of the Company governed by the internal affairs doctrine shall be the state and federal courts sitting in the judicial district of the Commonwealth of Pennsylvania embracing the county in which the registered office of the Company is located.

 

22



 

ARTICLE IX

 

AMENDMENTS

 

Section 9.01           (a) The Board of Directors may make, amend, and repeal the Bylaws with respect to those matters which are not, by statute, reserved exclusively to the shareholders, subject always to the power of the shareholders to change such action as provided herein.  No Bylaw may be made, amended or repealed by the shareholders unless such action is approved by the affirmative vote of the holders of not less than eighty percent (80%) of the voting power of the then outstanding shares of capital stock of the Company entitled to vote in an annual election of Directors, voting together as a single class, unless such action has been previously approved by a two-thirds vote of the whole Board of Directors, in which event (unless otherwise expressly provided in the Restated Articles of the Company or the Bylaws) the vote specified by applicable law for valid shareholder action shall be required.

 

(b)           Unless otherwise provided by a Bylaw, by the Restated Articles of the Company or by law, any Bylaw may be amended, altered or repealed, and new Bylaws may be adopted, by vote of a majority of the Directors present at any regular or special meeting duly convened, but only if notice of the specific Sections to be amended, altered, repealed or added is included in the notice of meeting.  No provision of the Bylaws shall vest any property or contract right in any shareholder.

 

ARTICLE X

 

PENNSYLVANIA CORPORATION LAW

 

Section 10.01        Subchapter G — Control Share Acquisitions and Subchapter H — Disgorgement by Certain Controlling Shareholders Following Attempts to Acquire Control of Title 15, Chapter 25, of the Pennsylvania Consolidated Statutes, shall not be applicable to the Company.

 

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Exhibit 3.4

 

EQT CORPORATION

 

AMENDED AND RESTATED

 

BYLAWS

 

(Amended through October 14, 2015 November 13, 2017 )

 

ARTICLE I

 

MEETINGS OF SHAREHOLDERS

 

Section 1.01                              All meetings of the shareholders shall be held at the principal office of the Company or such other places, either within or without the Commonwealth of Pennsylvania, as the Board of Directors may from time to time determine.

 

Section 1.02                              An annual meeting of shareholders shall be held in each calendar year at such time and place as the Board of Directors shall determine.  If the annual meeting shall not be called and held during such calendar year, any shareholder may call such meeting at any time thereafter.

 

Section 1.03                              Each person elected as a Director of the Company, whether to succeed a person whose term of office as a Director has expired (including the expiration of such person’s term) or to fill any vacancy, shall be elected for a term expiring at the next annual meeting.  Notwithstanding the foregoing, each Director elected shall hold office until such Director’s successor shall have been duly elected and qualified or until such Director’s earlier death, resignation or removal.

 

All elections of Directors shall be conducted by three (3) Judges of Election, who need not be shareholders, appointed by the Board of Directors.  If any such appointees are not present, the vacancy shall be filled by the presiding officer of the meeting.  The Chairman of the Board shall preside and the Secretary shall take the minutes at all meetings of the shareholders.  In the absence of the Chairman of the Board, the Chief Executive Officer shall preside.  In the absence of both, the presiding officer shall be the Chairman of the Executive Committee or such other presiding officer as may be designated by the Board of Directors or, if not so designated, by the shareholders of the Company, and if the Secretary is unable to do so, the presiding officer shall designate any person to take the minutes of the meeting.

 

Section 1.04                              The presence, in person or by proxy, of the holders of a majority of the voting power of all shareholders shall constitute a quorum except as otherwise provided by law or by the Restated Articles of Incorporation (the “Restated Articles”) of the Company.  If a meeting is not organized because a quorum is not present,

 



 

the shareholders present may adjourn the meeting to such time and place as they may determine, except that any meeting at which Directors are to be elected shall be adjourned only from day to day, or for such longer periods not exceeding fifteen (15) days each, as may be directed by a majority of the voting stock present.

 

Section 1.05                              Shareholders entitled to vote on any matter shall be entitled to one (1) vote for each share of capital stock standing in their respective names upon the books of the Company to be voted by the shareholder in person or by his or her duly authorized proxy or attorney.  The validity of every unrevoked proxy shall cease eleven (11) months after the date of its execution unless some other definite period of validity shall be expressly provided therein, but in no event shall a proxy, unless coupled with an interest, be voted on after three (3) years from the date of its execution.  All questions shall be decided by the affirmative vote of a majority of the shares cast (excluding abstentions) and entitled to vote on the matter, unless otherwise expressly provided by law, the Restated Articles of the Company or these Bylaws.

 

Section 1.06                              Special meetings of shareholders may be called by the Board of Directors or by the Chief Executive Officer.

 

Section 1.07                              Notice of the annual meeting and of all special meetings of shareholders shall be given by sending a written or printed notice thereof by mail or, to the extent permitted by applicable law, electronic transmission, specifying the place, day, and hour of the meeting and, in the case of a special meeting of shareholders, the general nature of the business to be transacted, to each shareholder at the address appearing on the books of the Company, or the address supplied by such shareholder to the Company for the purpose of notice, at least five (5) days before the day named for the meeting, unless such shareholders shall waive notice or be in attendance at the meeting.

 

Section 1.08                              (a) At any annual meeting of shareholders, only such nominations of persons for election to the Board of Directors shall be made, and only such other business shall be conducted or considered, as shall have been properly brought before the meeting.  For nominations to be properly made at an annual meeting, and proposals of other business to be properly brought before an annual meeting, nominations and proposals of other business must be (i) specified in the notice of the meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (ii) otherwise properly brought before the annual meeting, by or at the direction of the Board of Directors, (iii) otherwise properly requested to be brought before the annual meeting by a shareholder of the Company in accordance with Sections 1.08 and 1.09 of these Bylaws, or (iv) with respect to a nomination at an annual meeting of shareholders held in or after 2017 of a Shareholder Nominee by an Eligible Shareholder, in accordance with Section 1.11 of these Bylaws (each such capitalized term as defined in Section 1.11, and such nominations, “Proxy Access Nominations”), in accordance with such Section.  For nominations of persons for election to the Board of Directors or proposals of other business to be properly requested by a shareholder to be brought before an annual meeting, a shareholder must (i)

 



 

be a shareholder of record at the time of giving of notice of such annual meeting by or at the direction of the Board of Directors and at the time of the annual meeting or, with respect to Proxy Access Nominations, qualify as an Eligible Shareholder pursuant to Section 1.11 of these Bylaws and otherwise comply with such Section, (ii) be entitled to vote at such annual meeting, and (iii) comply with the procedures set forth in these Bylaws as to such business or nomination.  The immediately preceding sentence (and, as applicable, Section 1.11 of these Bylaws with respect to Proxy Access Nominations) shall be the exclusive means for a shareholder to make nominations for election to the Board of Directors or to bring other business proposals (other than matters properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and included in the Company’s notice of meeting) before an annual meeting of shareholders.  Subject to Section 1.11 of these Bylaws with respect to Proxy Access Nominations and subject to Rule 14a-8 under the Exchange Act with respect to qualifying shareholder proposals submitted thereunder, nothing in these Bylaws shall be construed to permit any shareholder, or give any shareholder the right, to include or have disseminated or described in the Company’s proxy statement any nomination of a Director or Directors or any other business proposal.

 

(b)                                  At any special meeting of the shareholders, only such business shall be conducted or considered, as shall have been properly brought before the meeting pursuant to the Company’s notice of meeting.  To be properly brought before a special meeting, proposals of business must be (i) specified in the Company’s notice of meeting (or any supplements thereto) given by or at the direction of the Board of Directors or (ii) otherwise properly brought before the special meeting by or at the direction of the Board of Directors.

 

(c)                                   Except as otherwise provided by law, the Restated Articles of the Company or these Bylaws, the presiding officer of a shareholders’ meeting shall have the power to determine whether a proposed nomination for election to the Board of Directors or any other business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with these Bylaws and, if any proposed nomination or other business is not in compliance with these Bylaws, to declare that no action shall be taken on such nomination or other proposal and such nomination or other proposal shall be disregarded.

 

Section 1.09                              (a) For any nomination or any other business to be properly brought before an annual meeting by a shareholder pursuant to Section 1.08(a)(iii) of these Bylaws, the shareholder must have given timely written notice thereof (including, in the case of nominations, the completed and signed questionnaire, representation, agreement and majority voting-related conditional resignation required by Section 1.10 of these Bylaws) and timely updates and supplements thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder action.  For the avoidance of doubt, Proxy Access Nominations pursuant to Section 1.08(a)(iv) are governed by the timing, notice and other provisions set forth in Section 1.11 of these Bylaws.

 



 

To be timely, a shareholder’s notice must be delivered to the Secretary at the principal executive offices of the Company not earlier than the close of business on the one hundred and twentieth (120th) day, and not later than the close of business on the ninetieth (90th) day, prior to the first anniversary of the preceding year’s annual meeting; provided , however , that if the Company changes the date of its annual meeting by more than thirty (30) days from the anniversary date of the prior year’s annual meeting, then to be timely such notice must be so delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not later than the later of (i) the close of business on the ninetieth (90th) day prior to such annual meeting or (ii) the close of business on the tenth (10th) day following the date of the Company’s Public Announcement (as defined below) of such annual meeting.  In no event shall any adjournment or postponement of an annual meeting, or the Public Announcement thereof, commence a new time period for the giving of a shareholder’s notice as described above.

 

In addition, to be timely, a shareholder’s notice shall further be updated and supplemented, if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of the record date for the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to the Secretary at the principal executive offices of the Company no later than five (5) business days after the record date for the meeting in the case of the update and supplement required to be made as of the record date, and not later than eight (8) business days prior to the date for the meeting, any adjournment or postponement thereof in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof.  For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these Bylaws shall not limit the Company’s rights with respect to any deficiencies in any notice provided by a shareholder, extend any applicable deadlines hereunder or under any other provision of the Bylaws or enable or be deemed to permit a shareholder who has previously submitted notice hereunder, or under any other provision of the Bylaws, to amend or update any proposal or to submit any new proposal, including without limitation by changing or adding nominees, matters, business and/or resolutions proposed to be brought before a meeting of the shareholders.

 

(b)                                  (i) To be in proper form, a shareholder’s notice to the Secretary must include the following, as applicable:

 

(A)                                as to each Proposing Person (as defined below), a shareholder’s notice must set forth:  (1) the name and address of such Proposing Person (including, if applicable, the name and address that appear on the Company’s books and records), (2)(a) the class or series and number of shares of the Company which are, directly or indirectly, beneficially owned (as defined below) or owned of record by such Proposing Person and whether such person has sole beneficial ownership of such shares (and if not solely beneficially owned, a description of such person’s beneficial ownership in such

 



 

shares), (b) any option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to, or with a value derived in whole or in part from the value (or change in value) of, any class or series of shares of the Company, or any derivative or synthetic arrangement having the characteristics of a long position in any class or series of shares of the Company, or any contract, derivative, swap or other transaction or series of transactions designed to produce economic benefits and risks that correspond substantially to the ownership of any class or series of shares of the Company, including due to the fact that the value of such contract, derivative, swap or other transaction or series of transactions is determined by reference to the price, value or volatility of any class or series of shares of the Company, whether or not such instrument, contract or right shall be subject to settlement in the underlying class or series of shares of the Company, through the delivery of cash or other property, or otherwise, and without regard of whether any Proposing Person may have entered into transactions that hedge or mitigate the economic effect of such instrument, contract or right or any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the Company (any of the foregoing, a “Derivative Instrument”) directly or indirectly owned beneficially by such Proposing Person, (c) any proxy, contract, arrangement, understanding, or relationship pursuant to which such Proposing Person has a right to vote any class or series of shares of any security of the Company, (d) any agreement, arrangement, understanding, relationship or otherwise, including any repurchase or similar so-called “stock borrowing” agreement or arrangement, engaged in, directly or indirectly, by such Proposing Person, the purpose or effect of which is to mitigate loss to, or reduce the economic risk of ownership of any class or series of the shares of the Company by, or manage the risk of share price changes for, or increase or decrease the voting power of, such Proposing Person with respect to any class or series of the shares of the Company, or which provides, directly or indirectly, the opportunity to profit or share in any profit derived from any decrease in the price or value of any class or series of the shares of the Company (any of the foregoing, “Short Interests”), (e) any rights to dividends on the shares of the Company beneficially owned by such Proposing Person that are separated or separable from the underlying shares of the Company, (f) any proportionate interest in shares of the Company or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such Proposing Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner of such general or limited partnership, (g) any performance-related fees (other than an asset-based fee) that such Proposing Person is entitled to based on any increase or decrease in the value of shares of the Company or Derivative Instruments, if any, as of the date of such notice, including without limitation any such interests held by members of such Proposing Person’s immediate family sharing the same household, (h) any equity interests or any Derivative Instruments or Short Interests in any competitor of the Company or any affiliate thereof held by such Proposing Person, and (i) any direct or indirect interest of such Proposing Person in any contract with the Company, any affiliate of the Company or any competitor of the Company (including, in any such case, without limitation any employment agreement, collective bargaining agreement, commercial contract, or consulting

 



 

agreement), (3) any other information relating to such Proposing Person that would be required to be disclosed in a proxy statement and form of proxy or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of Directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (4) any other information that would be required to be set forth in a Schedule 13D filed pursuant to Rule 13d-1(a) or an amendment pursuant to Rule 13d-2(a) if such a statement were required to be filed under the Exchange Act and the rules and regulations promulgated thereunder by such Proposing Person.

 

(B)                                If the notice relates to any business other than a nomination of a Director or Directors that the shareholder proposes to bring before the meeting, a shareholder’s notice must, in addition to the matters set forth in paragraph (A) above, also set forth:  (1) a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest of such shareholder and beneficial owner, if any, in such business, (2) the text of the proposal or business (including the text of any resolutions proposed for consideration), (3) any material interest of the Proposing Person in the business being proposed by such Proposing Person (whether by holdings of securities, by virtue of being a creditor or contractual counterparty of the Company or of a third party, or otherwise), and (4) a description of all agreements, arrangements and understandings between such Proposing Person, if any, and any other person or persons (including their names) in connection with the proposal of such business by such Proposing Person.

 

(C)                                As to each person, if any, whom the shareholder proposes (including on behalf of any Proposing Person) to nominate for election or reelection to the Board of Directors, a shareholder’s notice must, in addition to the matters set forth in paragraph (A) above, also set forth:  (1) all information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of Directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected) and (2) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three (3) years, and any other material relationships, between or among any Proposing Person, on the one hand, and each proposed nominee and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the Proposing Person were the “registrant” for purposes of such rule and the nominee were a Director or executive officer of such registrant.

 

(D)                                With respect to each person, if any, whom the shareholder proposes (including on behalf of a Proposing Person) to nominate for election

 



 

or reelection to the Board of Directors, a shareholder’s notice must, in addition to the matters set forth in paragraphs (A) and (C) above, also include a completed and signed questionnaire, representation, agreement and majority voting-related conditional resignation required by Section 1.10 of these Bylaws.  The Company may require any proposed nominee to furnish such other information as may reasonably be required by the Company to determine the eligibility of such proposed nominee to serve as an independent Director of the Company or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nominee.

 

(ii)                                   For purposes of these Bylaws, (A) “Public Announcement” shall mean disclosure in a press release reported by a national news service or in a document publicly filed by the Company with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder; (B) the term “Proposing Person” shall mean (1) the shareholder providing the notice of nomination or business proposed to be brought before an annual meeting, (2) if the shareholder providing the notice of nomination or business proposed to be brought before an annual meeting is not the sole beneficial owner of all of the shares of the Company’s Common Stock or Preferred Stock listed in such notice, the other beneficial owner or beneficial owners of any of the shares of the Company’s Common Stock or Preferred Stock listed in such notice, (3) any affiliate or associate (each within the meaning of Rule 12b-2 under the Exchange Act) of such shareholder or beneficial owner and (4) any other person with whom or with which such shareholder or beneficial owner (or any of their respective affiliates or associates) is acting in concert; and (C) a person shall be deemed a “beneficial owner” of, and shall be deemed to “beneficially own” (1) any securities or interest that such person or any of such person’s affiliates or associates (each within the meaning of Rule 12b-2 under the Exchange Act), directly or indirectly, has the right to acquire (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding (whether or not in writing) or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise and (2) any securities or interest of which such person or any of such person’s affiliates or associates (each within the meaning of Rule 12b-2 under the Exchange Act) is a “beneficial owner” within the meaning of Rule 13d-3 promulgated under the Exchange Act.

 

(iii)                                Notwithstanding the provisions of these Bylaws, a shareholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder with respect to the matters set forth in these Bylaws; provided , however , that any references in these Bylaws to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit the requirements applicable to nominations or proposals as to any other business to be considered pursuant to Section 1.08 or, as applicable, Section 1.11, of these Bylaws.

 

Section 1.10                              For a nominee of a Proposing Person to be eligible for election as a Director of the Company, there must be delivered for such nominee (in

 



 

accordance with the time periods described for delivery of notice under Section 1.09 or, as applicable, Section 1.11 of these Bylaws) to the Secretary at the principal executive offices of the Company:  (1) a completed written questionnaire of such nominee with respect to the background and qualification of such nominee and the background of any other person or entity on whose behalf the nomination is being made (which questionnaire shall be provided by the Secretary upon written request); (2) an executed written representation and agreement of such nominee (in the form provided by the Secretary upon request) that such nominee (i) is not and will not become a party to (A) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a Director of the Company, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed therein or (B) any Voting Commitment that could limit or interfere with such nominee’s ability to comply, if elected as a Director of the Company, with such nominee’s fiduciary duties under applicable law, (ii) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a Director that has not been disclosed therein, and (iii) in such nominee’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a Director of the Company, and will comply with all applicable corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Company publicly disclosed from time to time; and (3) a conditional resignation in accordance with the Company’s resignation policy in connection with majority voting (the form of which shall be provided by the Secretary upon written request).

 

Section 1.11                              Subject to the terms and conditions set forth in these Bylaws, the Company shall include in its proxy materials for an annual meeting of shareholders held in or after 2017 the name, together with the Required Information (as defined below), of any person properly nominated for election (the “Shareholder Nominee”) to the Board of Directors by a shareholder or group of shareholders that satisfy the requirements of Section 1.11, including qualifying as an Eligible Shareholder (as defined in paragraph (D) below), and that expressly elects at the time of providing the written notice required by this Section 1.11 (a “Proxy Access Notice”) to have its nominee included in the Company’s proxy materials pursuant to this Section 1.11.  For the purposes of this Section 1.11:

 

(1)                                  “Voting Stock” shall mean outstanding shares of capital stock of the Company entitled to vote generally for the election of Directors;

 

(2)                                  “Constituent Holder” shall mean any shareholder, collective investment fund included within a Qualifying Fund (as defined in paragraph (D) below) or beneficial holder whose stock ownership is counted for the purposes of qualifying as holding the Proxy Access Request Required Shares (as defined in paragraph (D) below) or qualifying as an Eligible Shareholder (as defined in paragraph (D) below);

 



 

(3)                                  “affiliate” and “associate” shall have the meanings ascribed thereto in Rule 405 under the Exchange Act; provided , however , that the term “partner” as used in the definition of “associate” shall not include any limited partner that is not involved in the management of the relevant partnership; and

 

(4)                                  a shareholder (and any Constituent Holders) shall be deemed to “own” only those outstanding shares of Voting Stock as to which the shareholder or any Constituent Holder possesses both (a) the full voting and investment rights pertaining to the shares and (b) the full economic interest in (including the opportunity for profit and risk of loss on) such shares.  The number of shares calculated in accordance with the foregoing clauses (a) and (b) shall be deemed not to include (and to the extent any of the following arrangements have been entered into by affiliates of the shareholder (or of any Constituent Holder), shall be reduced by) any shares (x) sold by such shareholder (or any of its affiliates) or such Constituent Holder (or any of its affiliates) in any transaction that has not been settled or closed, including any short sale, (y) borrowed by such shareholder (or any of its affiliates) or such Constituent Holder (or any of its affiliates) for any purposes or purchased by such shareholder (or any of its affiliates) or such Constituent Holder (or any of its affiliates) pursuant to an agreement to resell or (z) subject to any Short Interest or Derivative Instrument, which interest or instrument has, or is intended to have, or if exercised by either party thereto would have, the purpose or effect of (i) reducing in any manner, to any extent or at any time in the future, such shareholder’s (or affiliate’s) or such Constituent Holder’s (or affiliate’s) full right to vote or direct the voting of any such shares, and/or (ii) hedging, offsetting or altering to any degree gain or loss arising from the full economic ownership of such shares by such shareholder (or affiliate) or such Constituent Holder (or affiliate), other than any such arrangements solely involving an exchange listed multi-industry market index fund in which Voting Stock represents at the time of entry into such arrangement less than ten percent (10%) of the proportionate value of such index.  A shareholder or Constituent Holder shall “own” shares held in the name of a nominee or other intermediary so long as the shareholder or Constituent Holder retains the right to instruct how the shares are voted with respect to the election of Directors and the right to direct the disposition thereof and possesses the full economic interest in the shares.  A shareholder’s ownership or Constituent Holder’s ownership of shares shall be deemed to continue during any period in which such shareholder or Constituent Holder has loaned such shares or delegated any voting power over such shares by means of a proxy, power of attorney or other instrument or arrangement which in either case of such loan or delegation is recallable and/or revocable at any time by the shareholder or Constituent Holder, as applicable.  The terms “owned,” “owning” and other variations of the word “own” shall have correlative meanings.

 

(A)                                For purposes of this Section 1.11, the “Required Information” that the Company will include in its proxy statement is (1) the information

 



 

concerning the Shareholder Nominee and the Eligible Shareholder that the Company determines is required to be disclosed in the Company’s proxy statement by the regulations promulgated under the Exchange Act; and (2) if the Eligible Shareholder so elects, a Statement (as defined in paragraph F below).  The Company shall also include the name of the Shareholder Nominee in its proxy card.  For the avoidance of doubt, and any other provision of these Bylaws notwithstanding, the Company may in its sole discretion solicit against, and include in the proxy statement its own statements or other information relating to, any Eligible Shareholder and/or Shareholder Nominee, including any information provided to the Company with respect to the foregoing.

 

(B)                                To be timely, a shareholder’s Proxy Access Notice must be delivered to the principal executive offices of the Company not later than the close of business on the one hundred twentieth (120th) day nor earlier than the close of business on the one hundred fiftieth (150th) day prior to the first anniversary of the date that the Company mailed its proxy statement for the preceding year’s annual meeting of shareholders.  In no event shall any adjournment or postponement of an annual meeting, or the Public Announcement thereof, commence a new time period for the giving of a Proxy Access Notice.

 

(C)                                The number of Shareholder Nominees (including Shareholder Nominees that were submitted by an Eligible Shareholder for inclusion in the Company’s proxy materials pursuant to this Section 1.11 but either are subsequently withdrawn or that the Board of Directors decides to nominate as Board of Directors’ nominees) appearing in the Company’s proxy materials with respect to an annual meeting of shareholders shall be the greater of (x) two and (y) the largest whole number that does not exceed twenty percent (20%) of the number of directors in office as of the last day on which a Proxy Access Notice may be delivered in accordance with the procedures set forth in this Section 1.11 (such greater number, the “Permitted Number”); provided , however , that the Permitted Number shall be reduced by:

 

(1)                                  the number of such director candidates for which the Company shall have received one or more valid shareholder notices nominating director candidates pursuant to Section 1.08 (but not Section 1.11) of these Bylaws;

 

(2)                                  the number of directors in office or director candidates that in either case will be included in the Company’s proxy materials with respect to such annual meeting as an unopposed (by the Company) nominee pursuant to any agreement, arrangement or other understanding with any shareholder or group of shareholders (other than any such agreement, arrangement or understanding entered into in connection with an acquisition of Voting Stock, by such shareholder or group of shareholders, from the Company), other than any such director referred to in this clause (2) who at the time of such annual meeting will have served as a director continuously, as a nominee of the Board of Directors, for at least two annual terms, but only to the extent the

 



 

Permitted Number after such reduction with respect to this clause (2) equals or exceeds one; and

 

(3)                                  the number of directors in office that will be included in the Company’s proxy materials with respect to such annual meeting for whom access to the Company’s proxy materials was previously provided pursuant to this Section 1.11, other than any such director referred to in this clause (3) who at the time of such annual meeting will have served as a director continuously, as a nominee of the Board of Directors, for at least two annual terms;

 

provided , further , that in the event the Board of Directors resolves to reduce the size of the Board of Directors effective on or prior to the date of the annual meeting, the Permitted Number shall be calculated based on the number of directors in office as so reduced.  In the event that the number of Shareholder Nominees submitted by Eligible Shareholders pursuant to this Section 1.11 exceeds the Permitted Number, each Eligible Shareholder will select one Shareholder Nominee for inclusion in the Company’s proxy materials until the Permitted Number is reached, going in order of the amount (largest to smallest) of shares of Voting Stock each Eligible Shareholder disclosed as owned in its Proxy Access Notice submitted to the Company.  If the Permitted Number is not reached after each Eligible Shareholder has selected one Shareholder Nominee, this selection process will continue as many times as necessary, following the same order each time, until the Permitted Number is reached.

 

(D)                                An “Eligible Shareholder” is one or more shareholders of record or of beneficial ownership who own and have owned, or are acting on behalf of one (1) or more beneficial owners who own and have owned (in each case as defined above), in each case continuously for at least three (3) years as of both the date that the Proxy Access Notice is received by the Company pursuant to this Section 1.11, and as of the record date for determining shareholders eligible to vote at the annual meeting, at least three percent (3%) of the aggregate voting power of the Voting Stock (the “Proxy Access Request Required Shares”), and who continue to own the Proxy Access Request Required Shares at all times between the date such Proxy Access Notice is received by the Company and the date of the applicable annual meeting, provided that the aggregate number of shareholders, and, if and to the extent that a shareholder is acting on behalf of one or more beneficial owners, of such beneficial owners, whose stock ownership is counted for the purpose of satisfying the foregoing ownership requirement shall not exceed twenty (20).  Two (2) or more collective investment funds that are part of the same family of funds or sponsored by the same employer (a “Qualifying Fund”) shall be treated as one shareholder for the purpose of determining the aggregate number of shareholders in this paragraph (D), provided that each fund included within a Qualifying Fund otherwise meets the requirements set forth in this Section 1.11.  No shares may be attributed to more than one group constituting an Eligible Shareholder under this Section 1.11 (and, for the avoidance of doubt, no shareholder may be a member of more than one group constituting an Eligible Shareholder).  A record holder acting on behalf of one or more beneficial

 



 

owners will not be counted separately as a shareholder with respect to the shares owned by beneficial owners on whose behalf such record holder has been directed in writing to act, but each such beneficial owner will be counted separately, subject to the other provisions of this paragraph (D), for purposes of determining the number of shareholders whose holdings may be considered as part of an Eligible Shareholder’s holdings.  For the avoidance of doubt, Proxy Access Request Required Shares will qualify as such if and only if the beneficial owner of such shares as of the date of the Proxy Access Notice has itself individually beneficially owned such shares continuously for the three-year (3-year) period ending on that date and through the other applicable dates referred to above (in addition to all other applicable requirements being met).

 

(E)                                 No later than the final date when a nomination pursuant to this Section 1.11 may be delivered to the Company, an Eligible Shareholder (including each Constituent Holder) must provide the following information in writing to the Secretary of the Company:

 

(1)                                  the name and address of, and number of shares of Voting Stock owned by, such person;

 

(2)                                  one or more written statements from the record holder of the shares (and from each intermediary through which the shares are or have been held during the requisite three-year (3 year) holding period) verifying that, as of a date within seven (7) calendar days prior to the date the Proxy Access Notice is delivered to the Company, such Eligible Shareholder (and each Constituent Holder) owns, and has owned continuously for the preceding three (3) years, the Proxy Access Request Required Shares, and such person’s agreement to provide:

 

(a)                                  within five (5) days after the record date for the annual meeting, written statements from the record holder and intermediaries verifying such person’s continuous ownership of the Proxy Access Request Required Shares through the record date, together with any additional information reasonably requested to verify such person’s ownership of the Proxy Access Request Required Shares; and

 

(b)                                  immediate notice if the Eligible Shareholder ceases to own any of the Proxy Access Request Required Shares prior to the date of the applicable annual meeting of shareholders;

 

(3)                                  the information contemplated by Section 1.09(b)(i)(A), (C), and (D) of these Bylaws (with references to a “Proposing Person” therein to include such Eligible Shareholder (including each Constituent Holder));

 



 

(4)                                  a representation that such person:

 

(a)                                  acquired the Proxy Access Request Required Shares in the ordinary course of business and not with the intent to change or influence control of the Company, and does not presently have such intent;

 

(b)                                  has not nominated and will not nominate for election to the Board of Directors at the annual meeting any person other than the Shareholder Nominee(s) being nominated pursuant to this Section 1.11;

 

(c)                                   has not engaged and will not engage in, and has not and will not be a “participant” in another person’s, “solicitation” within the meaning of Rule 14a-1(l) promulgated under the Exchange Act in support of the election of any individual as a Director at the annual meeting other than its Shareholder Nominee(s) or a nominee of the Board of Directors;

 

(d)                                  will not distribute to any shareholder any form of proxy for the annual meeting other than the form distributed by the Company; and

 

(e)                                   will provide facts, statements and other information in all communications with the Company and its shareholders that are and will be true and correct in all material respects and do not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, and will otherwise comply with all applicable laws, rules and regulations in connection with any actions taken pursuant to this Section 1.11;

 

(5)                                  in the case of a nomination by an Eligible Shareholder comprised of a group of shareholders that together is such an Eligible Shareholder, the designation by all group members (including Constituent Holders), as evidenced by a written agreement provided to the Company signed by all group members (including Constituent Holders), of one group member that is authorized to act on behalf of all members of the nominating shareholder group with respect to the nomination and matters related thereto, including withdrawal of the nomination; and

 

(6)                                  an undertaking that such person agrees to:

 

(a)                                  assume all liability stemming from, and indemnify and hold harmless the Company and each of its Directors, officers and employees individually against any liability, loss or damages in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the Company or any of its Directors, officers or employees arising out of any legal or regulatory violation arising out of the Eligible Shareholder’s

 



 

communications with the shareholders of the Company or out of the information that the Eligible Shareholder provided to the Company; and

 

(b)                                  file with the Securities and Exchange Commission any solicitation by the Eligible Shareholder of shareholders of the Company relating to the annual meeting at which the Shareholder Nominee will be nominated.

 

In addition, no later than the final date on which a Proxy Access Notice may be submitted under this Section 1.11, a Qualifying Fund whose stock ownership is counted for purposes of qualifying as an Eligible Shareholder must provide to the Secretary of the Company documentation reasonably satisfactory to the Company that demonstrates that the funds included within the Qualifying Fund are either part of the same family of funds or sponsored by the same employer.  In order to be considered timely, any information required by this Section 1.11 to be provided to the Company must be supplemented (by delivery to the Secretary of the Company) (1) no later than five (5) days following the record date for the applicable annual meeting, to disclose the foregoing information as of such record date, and (2) no later than the eighth (8th) day before the annual meeting, to disclose the foregoing information as of the date that is ten (10) days prior to such annual meeting.  For the avoidance of doubt, the requirement to update and supplement such information shall not permit any Eligible Shareholder or other person to change or add any proposed Shareholder Nominee or be deemed to cure any defects or limit the remedies (including without limitation under these Bylaws) available to the Company relating to any defect.

 

(F)                                  The Eligible Shareholder may provide to the Secretary of the Company, at the time the information required by this Section 1.11 is originally provided, a written statement for inclusion in the Company’s proxy statement for the annual meeting, not to exceed five hundred (500) words, in support of the candidacy of such Eligible Shareholder’s Shareholder Nominee (the “Statement”).  Notwithstanding anything to the contrary contained in this Section 1.11, the Company may omit from its proxy materials any information or Statement that it, in good faith, believes is materially false or misleading, omits to state any material fact, or would violate any applicable law or regulation.

 

(G)                                No later than the final date when a nomination pursuant to this Section 1.11 may be delivered to the Company, each Shareholder Nominee must provide the Secretary at the principal executive offices of the Company the completed and signed questionnaire, representation, agreement and majority voting-related conditional resignation required by Section 1.10 of these Bylaws and:

 

(1)                                  provide an executed agreement, in a form deemed satisfactory by the Board of Directors or its designee (which form shall be provided by the Company reasonably promptly upon written request of a shareholder), that such Shareholder Nominee consents to being named in the Company’s proxy statement and form of proxy card (and will not agree to be named in any other person’s proxy

 



 

statement or form of proxy card) as a nominee and to serving as a Director of the Company if elected;

 

(2)                                  complete, sign and submit all other questionnaires required of the Company’s Directors generally; and

 

(3)                                  provide such additional information as necessary to permit the Board of Directors to determine if any of the matters contemplated by paragraph (I) below apply to such Shareholder Nominee or if such nominee has any direct or indirect relationship with the Company or is or has previously been subject to any event specified in Item 401(f) of Regulation S-K (or successor rule) of the Securities and Exchange Commission.

 

In the event that any information or communications provided by the Eligible Shareholder (or any Constituent Holder) or the Shareholder Nominee to the Company or its shareholders ceases to be true and correct in all material respects or omits a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, each Eligible Shareholder or Shareholder Nominee, as the case may be, shall promptly notify the Secretary of the Company of any defect in such previously provided information and of the information that is required to correct any such defect ; it being understood for the avoidance of doubt that providing any such notification shall not be deemed to cure any such defect or limit the remedies (including without limitation under these Bylaws) available to the Company relating to any such defect.

 

(H)                               For the avoidance of doubt, any Shareholder Nominee who is included in the Company’s proxy statement for a particular annual meeting of shareholders, but subsequently is determined not to satisfy the eligibility requirements of this Section 1.11 or any other provision of the Company’s Bylaws, Restated Articles or other applicable regulation any time before the annual meeting of shareholders, will not be eligible for election at such annual meeting of shareholders.

 

(I)                                    The Company shall not be required to include, pursuant to this Section 1.11, a Shareholder Nominee in its proxy materials for any annual meeting of shareholders, or, if the proxy statement already has been filed, to allow the nomination of a Shareholder Nominee, notwithstanding that proxies in respect of such vote may have been received by the Company:

 

(1)                                  who is not independent under the listing standards of the principal U.S. exchange upon which the common stock of the Company is listed (or other listing standards applicable to the Company), any applicable rules of the Securities and Exchange Commission and any publicly disclosed standards used by the Board of Directors in determining and disclosing independence of the Company’s Directors, in each case as determined by the Board of Directors;

 



 

(2)                                  whose service as a member of the Board of Directors would violate or cause the Company to be in violation of these Bylaws, the Restated Articles, the rules and listing standards of the principal U.S. exchange upon which the common stock of the Company is traded (or other such rules and listing standards applicable to the Company), or any applicable law, rule or regulation;

 

(3)                                  if the Eligible Shareholder (or any Constituent Holder) or applicable Shareholder Nominee otherwise breaches or fails to comply in any material respect with its obligations pursuant to this Section 1.11 or any agreement, representation or undertaking required by this Section; or

 

(4)                                  if the Eligible Shareholder ceases to be an Eligible Shareholder for any reason, including but not limited to not owning the Proxy Access Request Required Shares through the date of the applicable annual meeting.

 

For the purposes of this paragraph (I), clauses (1) and (2) and, to the extent related to a breach or failure by the Shareholder Nominee, clause (3) will result in the exclusion from the proxy materials pursuant to this Section 1.11 of the specific Shareholder Nominee to whom the ineligibility applies, or, if the proxy statement already has been filed, the ineligibility of such Shareholder Nominee to be nominated ; provided , however , that clause (4) and, to the extent related to a breach or failure by an Eligible Shareholder (or any Constituent Holder), clause (3) will result in the Voting Stock owned by such Eligible Shareholder (or Constituent Holder) being excluded from the Proxy Access Request Required Shares (and, if as a result the Proxy Access Notice shall no longer have been filed by an Eligible Shareholder, the exclusion from the proxy materials pursuant to this Section 1.11 of all of the applicable shareholder’s Shareholder Nominees from the applicable annual meeting of shareholders or, if the proxy statement has already been filed, the ineligibility of all of such shareholder’s Shareholder Nominees to be nominated).

 

ARTICLE II

 

GENERAL PROVISIONS

 

Section 2.01                              The principal office of the Company shall be in the City of Pittsburgh, Pennsylvania, and shall be kept open during business hours every day except Saturdays, Sundays, and legal holidays, unless otherwise ordered by the Board of Directors or the Chief Executive Officer.

 

Section 2.02                              The Company shall have a corporate seal which shall contain within a circle the following words:  “EQT Corporation, Pittsburgh, Pennsylvania” and in an inner circle the words “Corporate Seal.”

 

Section 2.03                              The fiscal year of the Company shall begin with January 1 and end with December 31 of the same calendar year.

 



 

Section 2.04                              The Board of Directors shall fix a time, not more than ninety (90) days prior to the date of any meeting of shareholders, or the date fixed for the payment of any dividend or distribution, or the date for any allotment of rights, or the date when any change or conversion or exchange of shares will be made or go into effect, as a record date for the determination of the shareholders entitled to notice of, or to vote at, any such meeting, or entitled to receive payment of any such dividend or distribution, or to receive any such allotment of rights, or to exercise the rights in respect of any such change, conversion, or exchange of shares.

 

ARTICLE III

 

BOARD OF DIRECTORS

 

Section 3.01                              Regular meetings of the Board of Directors shall be held at least six (6) times each year, immediately after the annual meeting of shareholders and at such other times and places as the Board of Directors shall from time to time designate by resolution of the Board.  Notice need not be given of regular meetings of the Board held at the times and places fixed by resolution of the Board.

 

If the Board shall fail to designate the specific time and place of any regular meeting, such regular meeting shall be held at such time and place as designated by the Chief Executive Officer and, in such case, oral, telegraphic or written notice shall be duly served or sent or mailed by the Secretary to each Director not less than five (5) days before the meeting.

 

Section 3.02                              Special meetings may be held at any time upon the call of the Chief Executive Officer, or the President in the absence of the Chief Executive Officer, at such time and place as he may deem necessary, or by the Secretary at the request of any two (2) members of the Board, by oral, telegraphic or written notice duly served or sent or mailed to each Director not less than twenty-four (24) hours before the meeting.

 

Section 3.03                              Fifty percent (50%) of the Directors at the time in office shall constitute a quorum for the transaction of business.  Vacancies in the Board of Directors, including vacancies resulting from an increase in the number of Directors, shall be filled only by a majority vote of the remaining Directors then in office, though less than a quorum, except that vacancies resulting from removal from office by a vote of the shareholders may be filled by the shareholders at the same meeting at which such removal occurs.  A person elected to fill a vacancy in the Board of Directors shall hold office for a term expiring at the next annual meeting of shareholders held immediately following such person being elected to fill the vacancy.

 

Section 3.04                              One (1) or more Directors may participate in a meeting of the Board or of a committee of the Board by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and all Directors so participating shall be deemed present at the meeting.

 



 

Section 3.05                              The full Board of Directors shall consist of not less than five (5) nor more than twelve fifteen ( 12 15 ) persons, the exact number to be fixed from time to time by the Board of Directors pursuant to a resolution adopted by a majority vote of the Directors then in office.

 

Section 3.06                              The Board of Directors may elect one (1) of its members as its Chairman and one (1) of its members Vice Chairman.  Such persons may also be officers of the Company.  If the Chairman so elected is not also the Chief Executive Officer of the Company, he or she shall confer with the Chief Executive Officer as to the content of agendas for such meetings and shall consult with the Chief Executive Officer as to matters affecting or relating to the Board of Directors.  The Chairman and the Vice Chairman so elected shall serve until the first meeting of the Board following the next annual meeting of the shareholders.  The Board shall also fix the annual rate of compensation to be paid to the Chairman and the Vice Chairman for serving as such in addition to compensation paid to all non-officer members of the Board.  The Chairman shall preside at all meetings of the Board, preserve order, and regulate debate according to the usual parliamentary rules.  In the absence of the Chairman, the Vice Chairman shall be the presiding officer.

 

Section 3.07                              No Director of this Company shall be permitted to serve in that capacity after the date of the annual meeting of shareholders next following his or her seventy-fourth (74th) birthday.  In order for any officer to become a nominee for election by the shareholders as a Director of the Company, such officer must have submitted to the Board of Directors prior to the time of such officer’s nomination an irrevocable resignation from the Board to take effect upon the termination of his employment as an officer of the Company, which resignation the Board shall have the discretion to determine whether to accept or reject, without the participation of the Director whose resignation is under consideration.

 

Section 3.08                              No Director shall be personally liable for monetary damages as such (except to the extent otherwise provided by law) for any action taken, or any failure to take any action, unless such Director has breached or failed to perform the duties of his or her office under Title 42, Chapter 83, Subchapter F of the Pennsylvania Consolidated Statutes (or any successor statute relating to Directors’ standard of care and justifiable reliance); and the breach or failure to perform constitutes self-dealing, willful misconduct or recklessness.

 

If the Pennsylvania Consolidated Statutes are amended after May 22, 1987, the date this Section received shareholder approval, to further eliminate or limit the personal liability of Directors, then a Director shall not be liable, in addition to the circumstances set forth in this Section, to the fullest extent permitted by the Pennsylvania Consolidated Statutes, as so amended.

 

The provisions of this Section shall not apply to any actions filed prior to January 27, 1987, nor to any breach of performance of duty, or any failure of performance of duty, by any Director occurring prior to January 27, 1987.

 



 

Section 3.09                              (a) In order for any person to be nominated as a Director of the Company, such person must have submitted to the Board of Directors prior to the time of such person’s nomination as a Director an irrevocable conditional resignation from the Board of Directors, to take effect upon the occurrence of all of the following conditions:  (i) such person stood for election to the Board of Directors at a shareholder meeting where the number of nominees did not exceed the number of Directors to be elected; (ii) at such shareholder meeting the votes by the shareholders entitled to vote in the election cast against such person’s reelection (excluding abstentions) exceeded the votes cast for such person’s reelection; and (iii) such resignation having been accepted by the Board of Directors.  Not later than ninety (90) days after the certification of an election by shareholders satisfying clauses (i) and (ii) the Board of Directors will decide, after receipt of a recommendation of the Corporate Governance Committee, whether to accept such conditional resignation.  The Director whose conditional resignation is being considered shall not participate in the recommendation of the Corporate Governance Committee or the decision of the Board of Directors with respect to his or her conditional resignation.  If there are not sufficient unaffected members of the Corporate Governance Committee to form a quorum, the unaffected independent Directors shall name a committee made up solely of unaffected independent Directors to make recommendations to the Board as to the acceptance of tendered resignation(s).  If the number of unaffected independent Directors is three (3) or fewer, all Directors may participate, with or without the naming of such committee as the Directors may deem appropriate, in the decision as to whether to accept the tendered resignations.  If the incumbent Director’s resignation is not accepted by the Board of Directors, such Director shall continue to serve until the next annual meeting and until his or her successor is duly elected, or his or her earlier resignation or removal.  If a Director’s resignation is accepted by the Board of Directors pursuant to this Bylaw, or if a nominee for Director is not elected and the nominee is not an incumbent Director, then the Board of Directors, in its sole discretion, may fill any resulting vacancy pursuant to the provisions of Section 3.03 of these Bylaws or may decrease the size of the Board of Directors pursuant to the provisions of Section 3.05 of these Bylaws.

 

(b)                                  In considering the question of whether to accept a conditional resignation, the Corporate Governance Committee and the Board of Directors shall be entitled to consider such facts and circumstances as deemed appropriate, including (i) whether the concerns raised by shareholders that led to the votes against can or should be cured, (ii) whether resignation of the Director is an appropriate response to the concerns raised by the shareholders, (iii) the Director’s historical and anticipated future commitment and contribution to the Board of Directors, (iv) whether the Director’s service on the Board of Directors is consistent with applicable regulatory requirements and listing standards, and without limitation (v) other matters in the interests of the Company.  The Board of Directors’ explanation of its decision shall be promptly disclosed on Form 8-K furnished to or filed with the Securities and Exchange Commission.

 



 

ARTICLE IV

 

INDEMNIFICATION

 

Section 4.01                              Directors and officers of the Company shall be indemnified as of right to the fullest extent not prohibited by law in connection with any actual or threatened action, suit or proceeding, civil, criminal, administrative, investigative or other (whether brought by or in the right of the Company or otherwise) arising out of their service to the Company or to another corporation, partnership, joint venture, trust or other enterprise at the request of the Company; provided , however , that the Company shall not indemnify any Director or officer in connection with a proceeding (or part thereof) initiated by such Director or officer (other than a proceeding to enforce such person’s rights to indemnification under this Article) unless such proceeding (or part thereof) was authorized by the Board.

 

Section 4.02                              Employees of the Company who are not Directors or officers of the Company shall be indemnified as of right in connection with any actual or threatened action, suit or proceeding, civil, criminal, administrative, investigative or other (whether brought by or in the right of the Company or otherwise) arising out of their service to the Company or to another enterprise at the request of the Company if, as determined by the Company in its sole discretion, such employee acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Company and, with respect to any criminal proceeding, had no reasonable cause to believe that his conduct was unlawful; provided , however , that the Company shall not indemnify an employee in connection with a proceeding (or part thereof) initiated by such employee (other than a proceeding to enforce such person’s rights to indemnification under this Article) unless such proceeding (or part thereof) was authorized by the Board.

 

Section 4.03                              The Company may indemnify agents of the Company who are not Directors, officers or employees of the Company with such scope and effect as determined by the Company.

 

Section 4.04                              As soon as practicable after receipt by any person entitled to indemnification hereunder of actual knowledge of any action, suit or proceeding, such indemnified person shall notify the Company thereof if a claim for indemnification in respect thereof may be or is being made by such indemnified person against the Company under this Article.  With respect to any such action, suit or proceeding, the Company will be entitled to participate therein at its own expense and may assume the defense thereof.  After the Company notifies the indemnified person of its election to so assume the defense, the Company will not be liable to the indemnified person under this Article for any legal or other expenses subsequently incurred by the indemnified person in connection with the defense.  The Company shall not be obligated to indemnify an indemnified person under this Article for any amounts paid in settlement of any action or claim effected without its written consent.

 



 

Section 4.05                              The Company may purchase and maintain insurance to protect itself and any Director, officer, agent or employee against any liability asserted against and incurred by him or her in respect of such service, whether or not the Company would have the power to indemnify him or her against such liability by law or under the provisions of this Article.  The provisions of this Article shall be applicable to persons who have ceased to be Directors, officers, agents, and employees and shall inure to the benefit of the heirs, executors, and administrators of persons entitled to indemnity hereunder.

 

Indemnification under this Article shall include the right to be paid expenses incurred in advance of the final disposition of any action, suit or proceeding for which indemnification is provided, upon receipt of an undertaking by or on behalf of the indemnified person to repay such amount if it ultimately shall be determined that he or she is not entitled to be indemnified by the Company; provided , however , that the indemnified person shall reimburse the Company for any amounts paid by the Company as indemnification of expenses to the extent the indemnified person receives payment for the same expenses from any insurance carrier or from another party.  The indemnification rights granted herein are not intended to be exclusive of any other rights to which those seeking indemnification may be entitled and the Company may enter into contractual agreements with any Director, officer, agent or employee to provide such individual with indemnification rights as set forth in such agreement or agreements, which rights shall be in addition to the rights set forth in this Section.

 

The provisions of this Article shall be applicable to actions, suits or proceedings commenced after the adoption hereof, whether arising from acts or omissions occurring before or after the adoption hereof.

 

ARTICLE V

 

STANDING COMMITTEES

 

Section 5.01                              The Board of Directors shall have authority to appoint an Executive Committee, a Finance Committee, an Audit Committee, and such other committees as it deems advisable, each to consist of two (2) or more Directors, and from time to time to define the duties and fix the number of members of each committee.  In the absence or disqualification of any member of any such committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not constituting a quorum, may unanimously appoint another Director or Directors to act at the meeting in the place of any such absent or disqualified member or members.

 

ARTICLE VI

 

OFFICERS

 

Section 6.01                              The principal officers of the Company shall be chosen by the Board of Directors and shall be a Chief Executive Officer, a President, a Secretary, and a

 



 

Treasurer.  The Board of Directors may also choose such other officers, including one (1) or more Executive Vice Presidents, Senior Vice Presidents and Vice Presidents, one (1) or more Assistant Secretaries and Assistant Treasurers, and one (1) or more persons having such other titles, as it may determine.

 

Section 6.02                              The Board of Directors shall, at the first meeting of the Board after its election, elect the principal officers of the Company, and may elect additional officers at that or any subsequent meeting.  All officers elected by the Board of Directors shall hold office at the pleasure of the Board.

 

Section 6.03                              At the discretion of the Board of Directors, any two (2) of the offices mentioned in Section 6.01 hereof may be held by the same person except the offices of Chief Executive Officer and Secretary.

 

Section 6.04                              The officers of the Company shall hold office until the next annual meeting of the Board and until their successors are chosen and qualify in their stead or until their earlier resignation or removal.  Any officer or agent may be removed by the Board of Directors whenever in its judgment the best interests of the Company will be served thereby.  Such removal, however, shall be without prejudice to the contract rights of the person so removed.  If the office of any officer becomes vacant for any reason, the vacancy may be filled by the Board of Directors.

 

CHIEF EXECUTIVE OFFICER

 

Section 6.05                              The Chief Executive Officer shall have general and active management of the business of the Company; and shall see that all orders and resolutions of the Board of Directors are carried into effect.  In addition to any specific powers conferred upon the Chief Executive Officer by these Bylaws, he or she shall have and exercise such further powers and duties as from time to time may be conferred upon or assigned to him or her by the Board of Directors.

 

PRESIDENT

 

Section 6.06                              The President shall have such duties and powers as may be assigned to him or her from time to time by the Board of Directors or the Chief Executive Officer and shall also be the Chief Operating Officer of the Company.  During the absence or inability of the Chief Executive Officer to serve, the President shall have all the powers and perform the duties of the Chief Executive Officer, including in the absence of the Chairman presiding at all meetings of the shareholders.

 

SECRETARY

 

Section 6.07                              The Secretary shall attend all meetings of the shareholders and Board of Directors; shall record all votes and the minutes of all proceedings in a book to be kept for that purpose; and shall perform like duties for all committees of the Board, if

 



 

so designated by the Board.  The Secretary shall keep in safe custody the seal of the Company and when authorized by the Board of Directors, affix the seal of the Company to any instrument requiring it and, when so affixed, it shall be attested by the signature of the Secretary or by the signature of the Treasurer or an Assistant Secretary.  The Secretary shall have custody of all contracts, leases, assignments, and all other valuable instruments unless the Board of Directors or the Chief Executive Officer shall otherwise direct.  The Secretary shall give, or cause to be given, notice of all annual meetings of the shareholders and any other meetings of the shareholders and, when required, notice of the meetings of the Board of Directors; and, in general, shall perform all duties incident to the office of a secretary of a corporation, and such other duties as may be prescribed by the Board of Directors or the Chief Executive Officer.

 

Section 6.08                              The Board of Directors may elect one (1) or more Assistant Secretaries who shall perform the duties of the Secretary in the event of the Secretary’s absence or inability to act, as well as such other duties as the Board of Directors, the Chief Executive Officer, or the Secretary may from time to time designate.

 

TREASURER

 

Section 6.09                              The Treasurer shall have charge of all moneys and securities belonging to the Company subject to the direction and control of the Board of Directors.  The Treasurer shall deposit all moneys received by the Company in the name and to the credit of the Company in such bank or other place or places of deposit as the Board of Directors shall designate; and for that purpose the Treasurer shall have power to endorse for collection or payment all checks or other negotiable instruments drawn payable to the Treasurer’s order or to the order of the Company.  The Treasurer shall disburse the moneys of the Company upon properly drawn checks which shall bear the signature of the Treasurer or of any Assistant Treasurer or of the Cashier (who shall be appointed by the Assistant Treasurer with the approval of the Treasurer).  All checks shall be covered by vouchers which shall be certified by the Controller or the Auditor of Disbursements or such other employee of the Company (other than the Cashier) as may be designated by the Treasurer from time to time.  The Treasurer may create, from time to time, such special imprest funds as may, in the Treasurer’s discretion, be deemed advisable and necessary, and may open accounts with such bank or banks as may be deemed advisable for the deposit therein of such special imprest funds, and may authorize disbursements therefrom by checks drawn against such accounts by the Treasurer, any Assistant Treasurer, or such other employee of the Company as may be designated by the Treasurer from time to time.  The Treasurer shall perform such other duties as may be assigned from time to time by the Board of Directors, the Chief Executive Officer or the Chief Financial Officer.

 

Section 6.10                              No notes or similar obligations shall be made except jointly by the Chief Executive Officer or the Chief Financial Officer and the Treasurer or an Assistant Treasurer, except as otherwise authorized by the Board of Directors.

 



 

Section 6.11                              The Board of Directors may elect one (1) or more Assistant Treasurers who shall perform the duties of the Treasurer in the event of the Treasurer’s absence or inability to act, as well as such other duties as the Board of Directors, the Chief Executive Officer, the Chief Financial Officer or the Treasurer may from time to time designate.

 

VICE PRESIDENTS AND OTHER OFFICERS

 

Section 6.12                              Vice Presidents and other officers shall perform such duties as may be assigned to them from time to time by the Board of Directors or the Chief Executive Officer as their positions are established or changed.

 

GENERAL

 

Section 6.13                              Fidelity bond coverage shall be obtained on such officers and employees of the Company, and of such type and in such amounts as may be deemed proper and advisable.

 

ARTICLE VII

 

CERTIFICATED AND UNCERTIFICATED SHARES

 

Section 7.01                              All classes and series of shares of capital stock of the Company, or any part thereof, shall be represented by stock certificates or shall be uncertificated shares, as determined by the Board of Directors, provided , that every shareholder shall be entitled to a share certificate if he or she so requests in the manner prescribed by the Company.

 

(a)                                  Shares of capital stock of the Company represented by certificates shall be signed by the Chief Executive Officer, the President or a Vice President, and countersigned by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer, and sealed with the corporate seal of the Company.  Said certificates shall be in such form as the Board of Directors may from time to time prescribe.

 

(b)                                  Within a reasonable time after the issuance or transfer of uncertificated shares, the Company shall send to the registered owner thereof a written notice containing the information otherwise required to be set forth or stated on a stock certificate.

 

Section 7.02                              The Board of Directors may from time to time appoint an incorporated company or companies to act as Transfer Agent and Registrar of shares of the Company, and in the case of the appointment of such Transfer Agent, the officers of the Company may sign and seal stock certificates in blank and place them with the transfer books in the custody and control of such Transfer Agent.  If any stock certificate is signed

 



 

by a Transfer Agent or Registrar, the signature of any such officer and the corporate seal upon any such certificate may be a facsimile, engraved or printed.

 

Section 7.03                              New certificates for shares of stock may be issued to replace certificates lost, stolen, destroyed or mutilated upon such terms and conditions as the Board may from time to time determine.

 

ARTICLE VIII

 

EXCLUSIVE FORUM FOR ADJUDICATION OF DISPUTES

 

Section 8.01                              Unless the Company consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Company, (ii) any action asserting a claim of breach of a fiduciary duty owed by any Director or officer or other employee of the Company to the Company or the Company’s shareholders, (iii) any action asserting a claim against the Company or any Director or officer or other employee of the Company arising pursuant to any provision of the Pennsylvania Business Corporation Law or the Company’s Restated Articles or these Bylaws (as either may be amended from time to time), or (iv) any action asserting a claim against the Company or any Director or officer or other employee of the Company governed by the internal affairs doctrine shall be the state and federal courts sitting in the judicial district of the Commonwealth of Pennsylvania embracing the county in which the registered office of the Company is located.

 

ARTICLE IX

 

AMENDMENTS

 

Section 9.01                              (a) The Board of Directors may make, amend, and repeal the Bylaws with respect to those matters which are not, by statute, reserved exclusively to the shareholders, subject always to the power of the shareholders to change such action as provided herein.  No Bylaw may be made, amended or repealed by the shareholders unless such action is approved by the affirmative vote of the holders of not less than eighty percent (80%) of the voting power of the then outstanding shares of capital stock of the Company entitled to vote in an annual election of Directors, voting together as a single class, unless such action has been previously approved by a two-thirds vote of the whole Board of Directors, in which event (unless otherwise expressly provided in the Restated Articles of the Company or the Bylaws) the vote specified by applicable law for valid shareholder action shall be required.

 

(b)                                  Unless otherwise provided by a Bylaw, by the Restated Articles of the Company or by law, any Bylaw may be amended, altered or repealed, and new Bylaws may be adopted, by vote of a majority of the Directors present at any regular or special meeting duly convened, but only if notice of the specific Sections to be amended, altered,

 



 

repealed or added is included in the notice of meeting.  No provision of the Bylaws shall vest any property or contract right in any shareholder.

 

ARTICLE X

 

PENNSYLVANIA CORPORATION LAW

 

Section 10.01                       Subchapter G — Control Share Acquisitions and Subchapter H — Disgorgement by Certain Controlling Shareholders Following Attempts to Acquire Control of Title 15, Chapter 25, of the Pennsylvania Consolidated Statutes, shall not be applicable to the Company.

 


Exhibit 99.1

 

 

NEWS RELEASE

 

 

 

EQT COMPLETES ACQUISITION OF RICE ENERGY

 

PITTSBURGH — November 13, 2017 — EQT Corporation (NYSE: EQT) today announced that it has completed its acquisition of Rice Energy Inc.

 

“With the closing of the transaction, we are combining two of the leading operators in the Appalachian Basin to create an even stronger company that is positioned to deliver greater returns to shareholders through operating efficiencies and improved overall well economics,” said Steve Schlotterbeck, EQT’s president and chief executive officer. “This transaction complements our production and midstream businesses and will deliver significant operational synergies to help us maintain our status as one of the lowest-cost operators in the United States. The EQT Board and management team have taken considerable steps to strengthen the Company’s platform and we look forward to identifying additional opportunities to maximize value for all EQT shareholders.”

 

In conjunction with the closing, and as previously announced under the terms of the merger agreement, two former Rice directors, Daniel J. Rice IV and Robert F. Vagt, have joined the EQT Board, effective immediately.

 

In addition, the Company previously announced that it had commenced a search for two additional, independent Board members with extensive midstream experience to be appointed to the Board and serve on the Committee being formed to evaluate options for addressing the Company’s sum-of-the-parts discount. A separate news release is expected to be issued later today regarding EQT’s new director appointments.

 

About EQT Corporation:

 

EQT Corporation is an integrated energy company with emphasis on Appalachian area natural gas production, gathering, and transmission. With more than 125 years of experience, EQT continues to be a leader in the use of advanced horizontal drilling technology — designed to minimize the potential impact of drilling-related activities and reduce the overall environmental footprint. Through safe and responsible operations, the Company is committed to meeting the country’s growing demand for clean-burning energy, while continuing to provide a rewarding workplace and enrich the communities where its employees live and work. EQT also owns a 90% limited partner interest in EQT GP Holdings, LP. EQT GP Holdings, LP owns the general partner interest, all of the incentive distribution rights, and a portion of the limited partner interests in EQT Midstream Partners, LP.

 

Visit EQT Corporation at www.EQT.com.

 

Cautionary Statement Regarding Forward-Looking Information

 

This communication may contain certain forward-looking statements, including certain plans, expectations, goals, projections, and statements about the benefits of the proposed transaction, EQT’s and Rice’s plans, objectives, expectations and intentions, the expected timing of completion of the transaction, and other statements that are not

 



 

historical facts. Such statements are subject to numerous assumptions, risks, and uncertainties. Statements that do not describe historical or current facts, including statements about beliefs and expectations, are forward-looking statements. Forward-looking statements may be identified by words such as expect, anticipate, believe, intend, estimate, plan, target, goal, or similar expressions, or future or conditional verbs such as will, may, might, should, would, could, or similar variations. The forward-looking statements are intended to be subject to the safe harbor provided by Section 27A of the Securities Act of 1933, Section 21E of the Securities Exchange Act of 1934, and the Private Securities Litigation Reform Act of 1995.

 

While there is no assurance that any list of risks and uncertainties or risk factors is complete, below are certain factors which could cause actual results to differ materially from those contained or implied in the forward-looking statements including: risks related to EQT’s acquisition and integration of acquired businesses and assets; the cost of defending EQT’s intellectual property; technological changes and other trends affecting the oil and gas industry; potential adverse reactions or changes to business or employee relationships, including those resulting from the announcement or completion of the transaction; competitive responses to the transaction; the possibility that the anticipated benefits of the transaction are not realized when expected or at all, including as a result of the impact of, or problems arising from, the integration of the two companies; EQT’s ability to complete the integration of Rice successfully; the outcome of litigation relating to the transaction; and other factors that may affect future results of EQT and Rice. Additional factors that could cause results to differ materially from those described above can be found in EQT’s Annual Report on Form 10-K for the year ended December 31, 2016 and in its subsequent Quarterly Reports on Form 10-Q for the quarters ended March 31, 2017,  June 30, 2017 or September 30, 2017, each of which is on file with the SEC and available in the “Investors” section of EQT’s website, https://www.eqt.com/, under the heading “SEC Filings” and in other documents EQT files with the SEC, and in Rice’s Annual Report on Form 10-K for the year ended December 31, 2016 and in its subsequent Quarterly Reports on Form 10-Q for the quarters ended March 31, 2017, June 30, 2017 or September 30, 2017, each of which is on file with the SEC and available in the “Investor Relations” section of Rice’s website, https://www.riceenergy.com/, under the subsection “Financial Information” and then under the heading “SEC Filings” and in other documents Rice files with the SEC.

 

All forward-looking statements speak only as of the date they are made and are based on information available at that time. Neither EQT nor Rice assumes any obligation to update forward-looking statements to reflect circumstances or events that occur after the date the forward-looking statements were made or to reflect the occurrence of unanticipated events except as required by federal securities laws. As forward-looking statements involve significant risks and uncertainties, caution should be exercised against placing undue reliance on such statements.

 

EQT analyst inquiries:
Patrick Kane, 412-553-7833
Chief Investor Relations Officer
pkane@eqt.com

 

EQT Midstream Partners / EQT GP Holdings analyst inquiries:
Nate Tetlow, 412-553-5834
Investor Relations Director
ntetlow@eqt.com

 

Media inquiries:
Natalie Cox, 412-395-3941
Corporate Director, Communications
ncox@eqt.com

 

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Exhibit 99.2

 

 

NEWS RELEASE

 

 

 

EQT ANNOUNCES APPOINTMENT OF TWO NEW DIRECTORS

 

PITTSBURGH — November 13, 2017 — EQT Corporation (NYSE: EQT) today announced that its Board of Directors has appointed Thomas F. Karam, founder and Chairman of Karbon Partners, LLC; and Norman J. Szydlowski, former President and Chief Executive Officer of SemGroup Corporation, to the EQT Board of Directors, effective immediately. With these appointments, EQT has expanded its Board size to 15 Directors.

 

“Following a comprehensive search process that included significant engagement with shareholders, we are pleased to welcome Tom and Norm to the EQT Board,” said James E. Rohr, EQT’s lead independent director. “With Thomas’ more than 25 years of experience in the midstream energy sector, and Norman’s significant Board and executive leadership experience in midstream and across the energy industry, their individual and independent perspectives will be a valuable resource to the Board. In connection with the closing of the Rice Energy transaction, we are also pleased to welcome Danny Rice and Bobby Vagt to the Board.”

 

About Thomas F. Karam

 

Mr. Karam has been a senior executive and entrepreneur in the midstream energy sector for more than 25 years. He is the founder and Chairman of Karbon Partners, LLC, which invests in, owns, constructs, and operates midstream energy assets. Mr. Karam previously served as the founder, Chairman and Chief Executive Officer of PennTex Midstream Partners, LLC, a publicly traded MLP with operations in North Louisiana and the Permian Basin from 2014 until its sale to Energy Transfer Partners in 2016. Preceding PennTex, he was the founder, Chairman and Chief Executive Officer of Laser Midstream Partners, LLC, one of the first independent natural gas gathering systems in the northeast Marcellus shale, from 2010 until 2012 when it was acquired by Williams Partners. Prior to Laser, Mr. Karam was the President, Chief Operating Officer and Director of Southern Union Company, where he led its successful transformation from a large LDC company to one of the largest pipeline companies in the United States at the time. Prior to Southern Union, Mr. Karam was the President and Chief Executive Officer of Pennsylvania Enterprises and PG Energy, a natural gas utility in central and northeastern Pennsylvania until its acquisition by Southern Union Company. Mr. Karam began his professional career in investment banking with Legg Mason Inc. and Thomson McKinnon.

 

About Norman J. Szydlowski

 

Mr. Szydlowski has served as a director of the general partner of 8point3 Energy Partners, LP since 2015. He also served as a director of the general partner of JP Energy Partners LP from 2014 to 2017, and he was a director of Transocean Partners, LLC from 2014 to 2016. From 2009 to 2014, Mr. Szydlowski served as President and Chief Executive Officer of SemGroup Corporation, and as a director

 



 

from 2010 to 2014. During his career with SemGroup, Mr. Szydlowski served as President, Chief Executive Officer and Chairman of the Board of Directors of Rose Rock Midstream GP, LLC.  From 2006 to 2008, Mr. Szydlowski served as President and Chief Executive Officer of Colonial Pipeline Company and from 2011 to 2014 served as a director of NGL Energy Partners. He also has served as a senior consultant to the Iraqi Ministry of Oil in Baghdad on behalf of the U.S. Department of Defense, where he led an advisory team in the rehabilitation, infrastructure security and development of future strategy of the Iraqi oil sector. Earlier career experience includes several leadership roles at Chevron Corporation.

 

About EQT Corporation:

 

EQT Corporation is an integrated energy company with emphasis on Appalachian area natural gas production, gathering, and transmission. With more than 125 years of experience, EQT continues to be a leader in the use of advanced horizontal drilling technology — designed to minimize the potential impact of drilling-related activities and reduce the overall environmental footprint. Through safe and responsible operations, the Company is committed to meeting the country’s growing demand for clean-burning energy, while continuing to provide a rewarding workplace and enrich the communities where its employees live and work. EQT also owns a 90% limited partner interest in EQT GP Holdings, LP. EQT GP Holdings, LP owns the general partner interest, all of the incentive distribution rights, and a portion of the limited partner interests in EQT Midstream Partners, LP.

 

Visit EQT Corporation at www.EQT.com.

 

EQT analyst inquiries:
Patrick Kane, 412-553-7833
Chief Investor Relations Officer
pkane@eqt.com

 

EQT Midstream Partners / EQT GP Holdings analyst inquiries:
Nate Tetlow, 412-553-5834
Investor Relations Director
ntetlow@eqt.com

 

Media inquiries:
Natalie Cox, 412-395-3941
Corporate Director, Communications
ncox@eqt.com

 

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