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): September 1, 2017 (August 31, 2017)
E. I. du Pont de Nemours and Company
(Exact name of registrant as specified in its charter)
| Delaware | 1-815 | 51-0014090 | ||
|
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
974 Centre Road
Wilmington, DE 19805
(Address of principal executive offices)(Zip Code)
(302) 774-1000
(Registrant’s telephone numbers, including area code)
(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:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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 ☐
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. ☐
| Item 2.01. | Completion of Acquisition or Disposition of Assets |
The information set forth in Item 8.01 is incorporated by reference herein.
| Item 3.01. | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
The information set forth in Item 8.01 is incorporated by reference herein.
| Item 3.03. | Material Modification to Rights of Security Holders. |
The information set forth in Item 5.03 and Item 8.01 is incorporated by reference herein.
| Item 5.01. | Changes in Control of Registrant. |
The information contained in Item 8.01 is incorporated by reference herein.
| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Immediately following the effective time of the Orion Merger (as defined in Item 8.01), all members of the board of directors of E. I. du Pont de Nemours and Company (the “ Company ”) were replaced by Edward D. Breen and Nicholas C. Fanandakis.
The executive officers of the Company as of immediately prior to the effective time of the Orion Merger continue to be the executive officers of the Company.
On August 31, 2017, the Company entered into an Employment Agreement (the “ Employment Agreement ”) with Mr. Breen pursuant to which Mr. Breen will, as of the effective time of the Mergers (as defined in Item 8.01), serve as the Chief Executive Officer of DowDuPont (as defined in Item 8.01). The Employment Agreement has a term of three years from August 31, 2017.
Pursuant to the Employment Agreement, Mr. Breen is entitled to an annual base salary of $1,930,800, a target annual cash bonus of 165% of base salary, future annual long-term incentive compensation grants with a grant date fair value for financial accounting purposes of $12,700,000 at target and, in respect of 2017, a long-term incentive grant in the form of nonqualified stock options with a grant date fair value for financial accounting purposes of $1,600,000. As soon as practicable following August 31, 2017, the Compensation Committee of DowDuPont will also establish a synergy incentive program with such terms as it shall determine in its discretion in which Mr. Breen will be a participant to incentivize the contemplated intended business separation transactions and achieve anticipated synergies in respect of the Mergers.
If Mr. Breen’s employment is terminated during the term of the Employment Agreement by the Company without Cause or by Mr. Breen for Good Reason (as those terms are defined in the Company’s Senior Executive Severance Plan (the “ SESP ”)), then subject to execution of a release of claims and compliance with any restrictive covenants that apply under the SESP, he will be entitled to the benefits provided under the SESP as presently in effect. Mr. Breen acknowledges and agrees that he will not have Good Reason under the SESP or the Employment Agreement solely by reason of changes in his status or duties to reflect consummation of the Mergers.
The foregoing summary of certain material Employment Agreement terms is qualified in its entirety by the terms of the Employment Agreement, which is attached hereto as Exhibit 10.1 and incorporated herein by reference.
Effective as of August 31, 2017, the Company entered into a transition letter agreement (the “ Transition Agreement ”) with Stacy L. Fox, the Company’s Senior Vice President and General Counsel. Pursuant to the Transition Agreement, upon consummation of the Mergers, Ms. Fox will serve as the General Counsel and Secretary of DowDuPont on an at-will basis with the same annual salary and target short- and long-term incentive opportunities, she will continue to participate in the SESP for three years following consummation of the Mergers on terms as presently in effect, and she will be eligible to participate in any synergy incentive plan with respect to the Mergers and intended business separations provided she remains continuously employed by the Company for the six-month period following consummation of the Mergers. The Company also agreed to reimburse her for reasonable attorney’s fees incurred in connection with the negotiation and documentation of the Transition Agreement.
The information set forth in Item 8.01 is incorporated by reference herein.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
In connection with the completion of the Orion Merger and pursuant to the Merger Agreement, on August 31, 2017, upon the effective time of the Orion Merger, the Company’s certificate of incorporation and bylaws were amended and restated in their entirety. Copies of the Company’s Fourth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws are filed as Exhibits 3.1 and 3.2, respectively, to this Current Report on Form 8-K and are incorporated by reference herein.
| Item 8.01. | Other Events. |
Effective August 31, 2017, the Company and The Dow Chemical Company (“ Dow ”) completed the previously announced merger of equals transaction contemplated by the Agreement and Plan of Merger dated as of December 11, 2015, as amended on March 31, 2017, (the “ Merger Agreement ”), by and among Dow, the Company, DowDuPont Inc. (f/k/a Diamond-Orion Holdco, Inc.) (“ DowDuPont ”), Diamond Merger Sub, Inc. (“ Diamond Merger Sub ”) and Orion Merger Sub, Inc. (“ Orion Merger Sub ”). Pursuant to the Merger Agreement, (i) Diamond Merger Sub was merged with and into Dow, with Dow surviving the merger as a subsidiary of DowDuPont (the “ Diamond Merger ”) and (ii) Orion Merger Sub was merged with and into the Company, with the Company surviving the merger as a subsidiary of DowDuPont (the “ Orion Merger ” and together with the Diamond Merger, the “ Mergers ”). Following the consummation of the Mergers, each of Dow and the Company became subsidiaries of DowDuPont.
Upon completion of the Diamond Merger, each share of common stock, par value $2.50 per share, of Dow (the “ Dow Common Stock ”) (excluding any shares of Dow Common Stock that were held in treasury immediately prior to the effective time of the Diamond Merger, which were automatically canceled and retired for no consideration) was converted into the right to receive one fully paid and non-assessable share of common stock, par value $0.01 per share, of DowDuPont (the “ DowDuPont Common Stock ”). Upon completion of the Orion Merger, (i) each share of common stock, par value $0.30 per share, of the Company (the “ DuPont Common Stock ”) (excluding any shares of DuPont Common Stock that were held in treasury immediately prior to the effective time of the Orion Merger, which were automatically canceled and retired for no consideration) was converted into the right to receive 1.2820 fully paid and non-assessable shares of DowDuPont Common Stock, in addition to cash in lieu of any fractional shares of DowDuPont Common Stock, and (ii) each share of DuPont Preferred Stock—$4.50 Series and DuPont Preferred Stock—$3.50 Series (collectively, the “ DuPont Preferred Stock ”) issued and outstanding immediately prior to the effective time of the Mergers remains issued and outstanding and was unaffected by the Mergers.
As provided in the Merger Agreement, at the effective time of the Mergers, (i) all options, deferred stock, performance deferred stock and other equity awards relating to shares of Dow Common Stock outstanding immediately prior to the effective time of the Mergers were generally automatically converted into options, deferred stock, performance deferred stock and other equity awards, respectively, relating to shares of DowDuPont Common Stock after giving effect to appropriate adjustments to reflect the Mergers and otherwise generally on the same terms and conditions as applied under the applicable plans and award agreements immediately prior to the effective time of the Mergers, and (ii) all options relating to shares of DuPont Common Stock that were outstanding immediately prior to the effective time of the Mergers were generally automatically converted into options relating to shares of DowDuPont Common Stock and all restricted stock units and performance based restricted stock units relating to shares of DuPont Common Stock that were outstanding immediately prior to the effective time of the Mergers were generally automatically converted into restricted stock units relating to shares of DowDuPont Common Stock, in each case, after giving effect to appropriate adjustments to reflect the Mergers and otherwise generally on the same terms and conditions as applied under the applicable plans and award agreements immediately prior to the effective time of the Mergers.
The issuance of shares of DowDuPont Common Stock in connection with the Mergers, as described above, was registered under the Securities Act of 1933, as amended, pursuant to a registration statement on Form S–4 (File No. 333-209869), filed by DowDuPont with the Securities and Exchange Commission (the “ SEC ”) and declared effective on June 9, 2016.
The description of the Merger Agreement contained herein does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as Exhibits 2.1 and 2.2 hereto and is incorporated herein by reference. This summary is not intended to modify or supplement any factual disclosures about the Company, Dow or DowDuPont, and should not be relied upon as disclosure about the Company, Dow or DowDuPont without consideration of any periodic and current reports and statements that the Company, Dow and DowDuPont may file with the SEC. The terms of the Merger Agreement govern the contractual rights and relationships, and allocate risks, among the parties in relation to the transactions contemplated by the Merger Agreement. In particular, the representations and warranties made by the parties to each other in the Merger Agreement reflect negotiations between, and are solely for the benefit of, the parties thereto and may be limited or modified by a variety of factors, including: subsequent events, information included in public filings, disclosures made during negotiations, correspondence between the parties and disclosure schedules to the Merger Agreement. Accordingly, the representations and warranties may not describe the actual state of affairs at the date they were made or at any other time and you should not rely on them as statements of fact.
Prior to the Orion Merger, shares of DuPont Common Stock were registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended and listed on the New York Stock Exchange (the “ NYSE ”). As a result of the Orion Merger, on August 31, 2017, the Company requested that the NYSE withdraw the shares of DuPont Common Stock from listing on the NYSE and file a Form 25 with the SEC to report that the shares of DuPont Common Stock are no longer listed on the NYSE. The shares of DuPont Common Stock were suspended from trading on the NYSE prior to the open of trading on September 1, 2017.
The DuPont Preferred Stock remains listed on the NYSE.
| Item 9.01 | Financial Statements and Exhibits. |
|
Exhibit Number |
Description of Exhibit |
|
| 2.1 | Agreement and Plan of Merger, dated as of December 11, 2015, by and among DowDuPont, Dow, the Company, Diamond Merger Sub and Orion Merger Sub (incorporated by reference to Annex A of the Company’s Registration Statement on Form S-4 initially filed with the SEC on March 1, 2016 (File No. 333-209869)). | |
| 2.2 | Amendment No. 1 to Agreement and Plan of Merger, dated as of March 31, 2017, by and among DowDuPont, Dow, the Company, Diamond Merger Sub and Orion Merger Sub. (incorporated by reference to the Company’s Current Report on Form 8-K filed with the SEC on March 31, 2017). | |
| 3.1 | Fourth Amended and Restated Certificate of Incorporation of the Company. | |
| 3.2 | Amended and Restated Bylaws of the Company. | |
| 10.1 | Employment Agreement by and between the Company and Edward D. Breen, dated as of August 31, 2017. | |
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.
| E. I. DU PONT DE NEMOURS AND COMPANY | ||
| (Registrant) | ||
| By: |
/s/ Jeanmarie F. Desmond |
|
| Name: | Jeanmarie F. Desmond | |
| Title: | Vice President and Controller | |
Date: September 1, 2017
EXHIBIT INDEX
Exhibit 3.1
FOURTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
E. I. DU PONT DE NEMOURS AND COMPANY
FIRST: The name of the corporation is E. I. du Pont de Nemours and Company (the “ Corporation ”).
SECOND: The address of the registered office of the Corporation in the State of Delaware is: Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801, County of New Castle. The name of its registered agent for service of process in the State of Delaware at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “ DGCL ”), as amended from time to time. The Corporation shall have all powers that may now or hereafter be lawful for a corporation to exercise under the DGCL.
FOURTH: The total authorized stock of the Corporation is as follows:
The total number of shares of all classes of stock which the Corporation shall have authority to issue shall be One Billion Eight Hundred Twenty-Three Million (1,823,000,000), of which Twenty-Three Million (23,000,000) shares shall be Preferred Stock without par value (the “ Preferred Stock ”) and One Billion Eight Hundred Million (1,800,000,000) shares shall be Common Stock having a par value of Thirty Cents ($0.30) each (the “ Common Stock ”).
I. The Preferred Stock may be issued from time to time in one or more series, each of such series to have such designation, preferences and relative, optional or other rights, and qualifications, limitations or restrictions thereof, as are stated and expressed herein, or in a resolution or resolutions providing for the issue of such series adopted by the Board of Directors as hereinafter provided.
II.
| (a) | The 1,688,850 shares of the Corporation’s Preferred Stock issued and outstanding on April 25, 1947, shall constitute a series of Preferred Stock, designated as “Preferred Stock—$4.50 Series” (hereinafter sometimes called the “ $4.50 Series Stock ”). The Board of Directors may from time to time authorize the issuance of additional shares of Preferred Stock as $4.50 Series Stock. |
| (b) | The shares of $4.50 Series Stock shall bear dividends at the rate of Four Dollars and Fifty Cents ($4.50) per annum from and after April 25, 1947, provided , however , that any shares of said Series issued after April 25, 1947 shall bear dividends from and after such date or dates as the Board of Directors from time to time may determine. |
| (c) | In the event of any liquidation or dissolution or winding-up of the Corporation, whether voluntary or involuntary, the Preferred Stock—$4.50 Series shall entitle the holders thereof to be paid, in the event of any involuntary liquidation or dissolution or winding-up of the Corporation, One Hundred Dollars ($100.00) per share with all unpaid accumulated dividends thereon to the date of such payment or, in the event of any voluntary liquidation or dissolution or winding-up of the Corporation, One Hundred Fifteen Dollars ($115.00) per share with all unpaid accumulated dividends thereon to the date of such payment. |
| (d) | The Preferred Stock—$4.50 Series shall be subject to redemption on or before April 25, 1952 at One Hundred Twenty-Five Dollars ($125.00) per share and accumulated dividends thereon to the date of redemption, and thereafter at One Hundred Twenty Dollars ($120.00) per share and accumulated dividends thereon to the date of redemption, upon the terms and in the manner as hereinafter provided. |
III. Authority is hereby expressly granted to the Board of Directors of the Corporation, subject to the provisions of this Article Fourth, to authorize the issue of one or more series of Preferred Stock in addition to the $4.50 Series Stock and with respect to each such series to fix by resolution or resolutions providing for the issue of such series:
| (a) | The number of shares to constitute such series and the distinctive designation thereof; |
| (b) | The dividend rate on the shares of such series and the date or dates from which dividends shall accumulate; |
| (c) | The amount per share over and above any accumulated dividends thereon which the shares of such series shall be entitled to receive upon redemption; |
| (d) | The amount per share over and above accumulated dividends which such series shall be entitled to receive (1) upon involuntary liquidation or dissolution or winding-up of the Corporation, which amount shall not exceed $100.00 a share, and (2) upon voluntary liquidation or dissolution or winding-up of the Corporation; and |
| (e) | The rights, if any, which the shares of such series may have for conversion into shares of any other class or classes or any other series of the same or any other class or classes of stock of the Corporation. |
All shares of any one series of Preferred Stock shall be identical with each other in all respects, except that shares of any one series issued at different times may differ as to the dates from which the initial dividends thereon shall accumulate; and all series shall rank equally and be identical in all respects, except as permitted in the foregoing provisions of this Article Fourth, Section III.
IV. A new series of Preferred Stock without par value of the Corporation shall have the designation, the number of shares to be issued, the dividend rate, the redemption price and the amount payable upon liquidation or dissolution or winding-up of the Corporation with respect to such new series of Preferred Stock without par value as follows, such attributes to be in addition to the other provisions set forth in this Article Fourth, which are applicable to all shares of Preferred Stock without par value irrespective of any variations between the shares of Preferred Stock without par value of the different series.
| (a) | The new series of Preferred Stock without par value of the Corporation is designated “Preferred Stock—$3.50 Series”; |
| (b) | Preferred Stock—$3.50 Series is authorized to be issued in the amount of 700,000 shares; |
| (c) | The dividend rate on the Preferred Stock—$3.50 Series shall be Three Dollars and Fifty Cents ($3.50) per share per annum and no more, and dividends on the 700,000 shares of Preferred Stock—$3.50 Series shall accumulate from and after April 25, 1947; |
| (d) | The amount per share over and above any accumulated dividends thereon which the shares of Preferred Stock—$3.50 Series shall be entitled to receive upon redemption is as follows: if redeemed on or before April 25, 1952, $107.00 a share; thereafter on or before April 25, 1955, $106.00 a share; thereafter on or before April 25, 1958, $105.00 a share; thereafter on or before April 25, 1961, $104.00 a share; thereafter on or before April 25, 1964, $103.00 a share, and thereafter, $102.00 a share; and |
| (e) | The amount per share over and above accumulated dividends which the shares of Preferred Stock—$3.50 Series shall be entitled to receive upon involuntary liquidation or dissolution or winding-up of the Corporation is $100.00 a share, and upon voluntary liquidation or dissolution or winding-up of the Corporation is $107.00 a share. |
V. The Preferred Stock shall entitle the holders thereof to receive, when and as declared from the surplus or net earnings of the Corporation, cumulative dividends, payable quarterly on such dates as the Board of Directors may determine, at the rates fixed herein or fixed by the Board of Directors for the respective series, as herein provided, and no more, which dividends shall be paid or set apart before any dividend shall be set apart or paid on the Common Stock. The dividend payment dates for all series of Preferred Stock shall be the same and no dividends shall be declared on any series in respect of any quarterly dividend payment unless there shall likewise be or have been declared on all shares of Preferred Stock of each other series at the time outstanding like proportionate dividends ratably in proportion to the respective annual dividend rates fixed therefor.
VI. In the event of any liquidation or dissolution or winding-up of the Corporation, whether voluntary or involuntary, the Preferred Stock shall entitle the holders thereof to be paid the amounts fixed herein or fixed by the Board of Directors for the respective series as herein provided, including all unpaid accumulated dividends thereon to the date of such payment, before any amount shall be paid to the holders of the Common Stock of the Corporation.
Such payments to the holders of the Preferred Stock shall be made without preference or priority of one series over any other series and shall be made before any amount shall be paid to the holders of the Common Stock. If the assets of the Corporation distributable upon any such liquidation or dissolution or winding-up of the Corporation shall be insufficient to permit the payments to the holders of the Preferred Stock of the full amounts above provided for, including an amount equivalent to all unpaid accumulated dividends as aforesaid, the said assets shall be allocated to the respective series of Preferred Stock in the ratios that such aggregate liquidation value of the issued shares of each series bears to the aggregate liquidation value of the issued shares of all series of Preferred Stock as fixed for the respective series of Preferred Stock in the Certificate of Incorporation or in the resolution or resolutions of the Board of Directors providing for the issuance of the respective series, and shall be distributed among the holders of the respective series of Preferred Stock according to their respective shares.
VII. The Preferred Stock of any series shall be subject to redemption at any time in whole or in part at the amount fixed herein, or fixed by the Board of Directors as herein provided, for the redemption of such series including an amount equivalent to all unpaid accumulated dividends thereon, upon not less than sixty (60) days’ notice addressed to the respective holders of record of the stock to be redeemed at their addresses as the same shall appear on the stock transfer records of the Corporation in such manner as the Board of Directors shall determine.
VIII. The holders of the Preferred Stock shall have no voting power on any questions whatsoever except as otherwise provided by law, and except that in the event that the Corporation shall fail to pay any dividend on the Preferred Stock when it regularly
becomes due and such default shall continue for the period of six (6) months, then until but not after such time as accumulated and unpaid dividends on all outstanding Preferred Stock of all series shall have been paid, the holders of the outstanding Preferred Stock shall have the exclusive right, voting separately and as a class, to elect two directors or, if the total number of directors of the Corporation be only three, then only one director, at each meeting of the stockholders of the Corporation held for the purpose of electing directors. At all meetings of stockholders held for the purpose of electing directors at which the holders of Preferred Stock shall have the exclusive right, voting separately and as a class, to elect any directors as aforesaid, the presence in person or by proxy of the holders of a majority of the outstanding shares of Preferred Stock shall be required to constitute a quorum of such class for the election of any directors by holders of Preferred Stock, as a class, provided , however , that the absence of a quorum of the holders of Preferred Stock shall not prevent the election at any such meeting or adjournment thereof of the remaining directors for whose election a class vote of the holders of Preferred Stock is not required, if the necessary quorum of the stockholders entitled to vote in the election of such remaining directors is present in person or by proxy in accordance with the bylaws of the Corporation; and provided further , that in the absence of a quorum of the holders of Preferred Stock, a majority of those holders of such Preferred Stock who are present in person or by proxy shall have power to adjourn the election of those directors to be elected by their class from time to time without notice other than announcement at the meeting until the requisite amount of holders of Preferred Stock shall be present in person or by proxy.
IX. Whenever, at any time, full accumulated dividends as aforesaid for all past dividend periods and for the current dividend period shall have been paid, or declared and set apart for payment, on the then outstanding Preferred Stock, the Board of Directors may declare dividends on the Common Stock of the Corporation.
X. Upon any liquidation or dissolution or winding-up of the Corporation, whether voluntary or involuntary, the assets and funds of the Corporation remaining, after the payments have been made to the holders of the Preferred Stock, as provided in this Article Fourth, Section VI, shall be divided and paid to the holders of the Common Stock according to their respective shares.
XI. From time to time the Preferred Stock or the Common Stock may be increased according to law.
XII. From time to time the Preferred Stock and the Common Stock may be issued in such amounts and proportions and for such consideration as may be fixed by the Board of Directors.
XIII. No stockholder of the Corporation, of whatever class or series, shall have any preemptive or preferential right of subscription to any shares of any series of the Preferred Stock of the Corporation, authorized hereunder or under any amendment hereof, or to any obligations convertible into said Preferred Stock of any series of the Corporation, issued or sold, nor any right of subscription to any thereof other than such, if any, as the
Board of Directors of the Corporation in its discretion from time to time may determine, and the Board of Directors may issue said Preferred Stock of any series of the Corporation, or obligations convertible into said Preferred Stock of any series, without offering said Preferred Stock, or said obligations, either in whole or in part, to any stockholders of the Corporation.
No holder of any shares of the Preferred Stock of any series of the Corporation shall have any preemptive or preferential right of subscription to any shares of stock of any class of the Corporation, or to any obligations convertible into shares of stock of any class of the Corporation, issued or sold, nor any right of subscription to any thereof other than such, if any, as the Board of Directors of the Corporation in its discretion from time to time may determine.
FIFTH: In addition to the powers and authority herein before or by statute expressly conferred upon them, the Board of Directors of the Corporation is hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject to the provisions of the DGCL, this Certificate of Incorporation and the bylaws of the Corporation.
SIXTH: Election of directors need not be by written ballot unless the bylaws of the Corporation so provide.
SEVENTH: A director of the Corporation shall not be personally liable either to the Corporation or to any stockholder for monetary damages for breach of fiduciary duty as a director, except (I) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (II) for acts or omissions which are not in good faith or which involve intentional misconduct or knowing violation of the law, (III) for any matter in respect of which such director shall be liable under Section 174 of Title 8 of the DGCL or any amendment thereto or successor provision thereto or (IV) for any transaction from which the director shall have derived an improper personal benefit. Neither amendment nor repeal of this Article Seventh nor the adoption of any provision of the Certificate of Incorporation inconsistent with this Article Seventh shall eliminate or reduce the effect of this Article Seventh in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article Seventh, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
EIGHTH: Meetings of stockholders may be held within or without the State of Delaware, as the bylaws may provide. The books of the Corporation may be kept (subject to any provision contained in the DGCL) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the bylaws of the Corporation.
NINTH: The Board of Directors reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
E. I. DU PONT DE NEMOURS AND COMPANY
(a Delaware corporation)
ARTICLE I
Stockholders
SECTION 1. Annual Meetings . The annual meeting of stockholders of E. I. du Pont de Nemours and Company, a Delaware corporation (the “ Corporation ”) for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held each year at such date and time, within or outside the State of Delaware, as the Board of Directors (the “ Board of Directors” or “ Board ”) shall determine.
SECTION 2. Special Meetings . Special meetings of stockholders for the transaction of such business as may properly come before the meeting may be called by order of the Board of Directors or by stockholders holding together at least a majority of all the shares of the Corporation entitled to vote at the meeting, and shall be held at such date and time, within or without the State of Delaware, as may be specified by such order. Whenever the directors shall fail to fix such place, the meeting shall be held at the principal executive office of the Corporation.
SECTION 3. Notice of Meetings . Written notice of all meetings of the stockholders, stating the place (if any), date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and the place within the city or other municipality or community at which the list of stockholders may be examined, shall be mailed or delivered to each stockholder not less than 10 nor more than 60 days prior to the meeting. Notice of any special meeting shall state in general terms the purpose or purposes for which the meeting is to be held.
SECTION 4. Stockholder Lists . The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.
The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this section or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.
SECTION 5. Quorum . Except as otherwise provided by law or the Corporation’s Certificate of Incorporation, a quorum for the transaction of business at any meeting of stockholders shall consist of the holders of record of a majority of the issued and outstanding shares of the capital stock of the Corporation entitled to vote at the meeting, present in person or by proxy. At all meetings of the stockholders at which a quorum is present, all matters, except as otherwise provided by law or the Certificate of Incorporation, shall be decided by the vote of the holders of a majority of the shares entitled to vote thereat present in person or by proxy. If there be no such quorum, the holders of a majority of such shares so present or represented may adjourn the meeting from time to time, without further notice, until a quorum shall have been obtained. When a quorum is once present it is not broken by the subsequent withdrawal of any stockholder.
SECTION 6. Organization . Meetings of stockholders shall be presided over by the Chairman, if any, or if none or in the Chairman’s absence, the Vice-Chairman, if any, or if none or in the Vice-Chairman’s absence the President, if any, or if none or in the President’s absence, a Vice-President, or, if none of the foregoing is present, by a chairman to be chosen by the stockholders entitled to vote who are present in person or by proxy at the meeting. The Secretary of the Corporation, or in the Secretary’s absence, the presiding officer of the meeting shall appoint any person present to act as secretary of the meeting.
SECTION 7. Voting; Proxies; Required Vote .
(a) At each meeting of stockholders, every stockholder shall be entitled to vote in person or by proxy appointed by instrument in writing, subscribed by such stockholder or by such stockholder’s duly authorized attorney-in-fact (but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period), and, unless the Certificate of Incorporation provides otherwise, shall have one vote for each share of stock entitled to vote registered in the name of such stockholder on the books of the Corporation on the applicable record date fixed pursuant to these Bylaws. At all elections of directors the voting may but need not be by ballot and a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors shall elect. Except as otherwise required by law or the Certificate of Incorporation, any other action shall be authorized by the vote of the majority of the shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter.
(b) Any action required or permitted to be taken at any meeting of stockholders may, except as otherwise required by law or the Certificate of Incorporation, be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of record of the issued and outstanding capital stock of the Corporation having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, and the writing or writings are filed with the permanent records of the Corporation. Prompt notice of the taking of corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
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(c) Where a separate vote by a class or classes, present in person or represented by proxy, shall constitute a quorum entitled to vote on that matter, the affirmative vote of the majority of shares of such class or classes present in person or represented by proxy at the meeting shall be the act of such class, unless otherwise provided in the Corporation’s Certificate of Incorporation.
SECTION 8. Inspectors . The Board of Directors, in advance of any meeting, may, but need not, appoint one or more inspectors of election to act at the meeting or any adjournment thereof. If an inspector or inspectors are not so appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors. In case any person who may be appointed as an inspector fails to appear or act, the vacancy may be filled by appointment made by the directors in advance of the meeting or at the meeting by the person presiding thereat. Each inspector, if any, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his ability. The inspectors, if any, shall determine the number of shares of stock outstanding and the voting power of each, the shares of stock represented at the meeting, the existence of a quorum, and the validity and effect of proxies, and shall receive votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all stockholders. On request of the person presiding at the meeting, the inspector or inspectors, if any, shall make a report in writing of any challenge, question or matter determined by such inspector or inspectors and execute a certificate of any fact found by such inspector or inspectors.
ARTICLE II
Board of Directors
SECTION 1. General Powers . The business, property and affairs of the Corporation shall be managed by, or under the direction of, the Board of Directors.
SECTION 2. Qualification; Number; Term; Remuneration .
(a) Each director shall be at least 18 years of age. A director need not be a stockholder, a citizen of the United States, or a resident of the State of Delaware. The number of directors constituting the entire Board shall be fixed by the Board and shall be at least one, or such greater number as may be fixed from time to time by action of the Board of Directors, one of whom may be selected by the Board of Directors to be its Chairman. The use of the phrase “entire Board” herein refers to the total number of directors which the Corporation would have if there were no vacancies.
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(b) Directors who are elected at an annual meeting of stockholders, and directors who are elected in the interim to fill vacancies and newly created directorships, shall hold office until the next annual meeting of stockholders and until their successors are elected and qualified or until their earlier resignation or removal.
(c) Directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.
SECTION 3. Quorum and Manner of Voting . Except as otherwise provided by law, a majority of the entire Board shall constitute a quorum. A majority of the directors present, whether or not a quorum is present, may adjourn a meeting from time to time to another time and place without notice. The vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.
SECTION 4. Places of Meetings . Meetings of the Board of Directors may be held at any place within or without the State of Delaware, as may from time to time be fixed by resolution of the Board of Directors, or as may be specified in the notice of meeting.
SECTION 5. Annual Meeting . Following the annual meeting of stockholders, the newly elected Board of Directors shall meet for the purpose of the election of officers and the transaction of such other business as may properly come before the meeting. Such meeting may be held without notice immediately after the annual meeting of stockholders at the same place at which such stockholders’ meeting is held.
SECTION 6. Regular Meetings . Regular meetings of the Board of Directors shall be held at such times and places as the Board of Directors shall determine from time to time. Notice need not be given of regular meetings of the Board of Directors held at times and places fixed by resolution of the Board of Directors.
SECTION 7. Special Meetings . Special meetings of the Board of Directors shall be held whenever called by the Chairman of the Board, President or by a majority of the directors then in office.
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SECTION 8. Notice of Meetings . A notice of the place, date and time and the purpose or purposes of each meeting of the Board of Directors shall be given to each director by mailing the same at least two days before the meeting, or by telephoning or emailing the same or by delivering the same personally not later than the day before the day of the meeting.
SECTION 9. Organization . At all meetings of the Board of Directors, the Chairman, if any, or if none or in the Chairman’s absence or inability to act the Vice Chairman, if any, or if none or in the Vice Chairman’s absence or inability to act the President, or in the President’s absence or inability to act any Vice-President who is a member of the Board of Directors, or in such Vice-President’s absence or inability to act a chairman chosen by the directors, shall preside. The Secretary of the Corporation shall act as secretary at all meetings of the Board of Directors when present, and, in the Secretary’s absence, the presiding officer may appoint any person to act as secretary.
SECTION 10. Resignation; Removal . Any director may resign at any time upon written notice to the Corporation and such resignation shall take effect upon receipt thereof by the President or Secretary, unless otherwise specified in the resignation. Any or all of the directors may be removed, with or without cause, by the holders of a majority of the shares of stock outstanding and entitled to vote for the election of directors.
SECTION 11. Vacancies . Unless otherwise provided in these Bylaws, vacancies on the Board of Directors, whether caused by resignation, death, disqualification, removal, an increase in the authorized number of directors or otherwise, may be filled by the affirmative vote of a majority of the remaining directors, although less than a quorum, or by a sole remaining director, or at a special meeting of the stockholders, by the holders of shares entitled to vote for the election of directors.
SECTION 12. Action by Written Consent . Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all the directors consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors.
SECTION 13. Meetings by Means of Conference Telephone . Unless otherwise provided in the Certificate of Incorporation or these Bylaws, members of the Board of Directors of the Corporation, or any committee thereof, may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 13 of Article II shall constitute presence in person at such meeting.
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ARTICLE III
Committees
SECTION 1. Appointment . From time to time the Board of Directors by a resolution adopted by a majority of the entire Board may appoint any committee or committees for any purpose or purposes, to the extent lawful, which shall have powers as shall be determined and specified by the Board of Directors in the resolution of appointment.
SECTION 2. Procedures, Quorum and Manner of Acting . Each committee shall fix its own rules of procedure, and shall meet where and as provided by such rules or by resolution of the Board of Directors. Except as otherwise provided by law, the presence of a majority of the then appointed members of a committee shall constitute a quorum for the transaction of business by that committee, and in every case where a quorum is present the affirmative vote of a majority of the members of the committee present shall be the act of the committee. Each committee shall keep minutes of its proceedings, and actions taken by a committee shall be reported to the Board of Directors.
SECTION 3. Action by Written Consent . Any action required or permitted to be taken at any meeting of any committee of the Board of Directors may be taken without a meeting if all the members of the committee consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the committee.
SECTION 4. Term; Termination . In the event any person shall cease to be a director of the Corporation, such person shall simultaneously therewith cease to be a member of any committee appointed by the Board of Directors.
ARTICLE IV
Officers
SECTION 1. Election and Qualifications . The Board of Directors shall elect the officers of the Corporation, which shall include a President and a Secretary, and may include, by election or appointment, one or more Vice-Presidents (any one or more of whom may be given an additional designation of rank or function), a Treasurer, and such Assistant Secretaries, such Assistant Treasurers and such other officers as the Board may from time to time deem proper. Each officer shall have such powers and duties as may be prescribed by these Bylaws and as may be assigned by the Board of Directors, the President or the Vice President and Treasurer. Any two or more offices may be held by the same person except offices of President and Secretary together. The Chairman of the Board, if one is appointed, shall, if present, preside at all meetings of the stockholders and directors.
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SECTION 2. Term of Office and Remuneration . All officers shall hold office until their successors are elected and qualified, but any officer may be removed from office, either with or without cause, at any time by the Board of Directors. Any vacancy in any office arising from any cause may be filled for the unexpired portion of the term by the Board of Directors. The remuneration of all officers of the Corporation may be fixed by the Board of Directors or in such manner as the Board of Directors shall provide.
SECTION 3. Resignation; Removal . Any officer may resign at any time upon written notice to the Corporation and such resignation shall take effect upon receipt thereof by the President or Secretary, unless otherwise specified in the resignation. Any officer shall be subject to removal, with or without cause, at any time by vote of a majority of the entire Board.
SECTION 4. President . The President shall, subject to control of the Board of Directors, have direction and control of the business and officers of the Corporation, shall have the general powers and duties of management usually vested in the president of a corporation, and shall have such other powers and duties as may from time to time be assigned by the Board of Directors. The President may appoint and remove assistant officers and other agents and employees; and may execute and deliver in the name of the Corporation powers of attorney, contracts, bonds and other obligations and instruments.
SECTION 5. Vice-President . A Vice-President may execute and deliver in the name of the Corporation contracts and other obligations and instruments pertaining to the regular course of the duties of said office, and shall have such other authority as from time to time may be assigned by the Board of Directors.
SECTION 6. Treasurer . The Treasurer shall in general have all duties incident to the position of Treasurer and such other duties as may be assigned by the Board of Directors.
SECTION 7. Secretary . The Secretary shall in general have all the duties incident to the office of Secretary and such other duties as may be assigned by the Board of Directors.
SECTION 8. Other Officers . Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers.
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ARTICLE V
Books and Records
SECTION 1. Location . The books and records of the Corporation may be kept at such place or places within or outside the State of Delaware as the Board of Directors or the respective officers in charge thereof may from time to time determine. The record books containing the names and addresses of all stockholders, the number and class of shares of stock held by each and the dates when they respectively became the owners of record thereof shall be kept by the Secretary as prescribed in the Bylaws and by such officer or agent as shall be designated by the Board of Directors.
SECTION 2. Addresses of Stockholders . Notices of meetings and all other corporate notices may be delivered personally or mailed to each stockholder at the stockholder’s address as it appears on the records of the Corporation.
SECTION 3. Fixing Date for Determination of Stockholders of Record .
(a) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and if no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in this State, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by this article, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.
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(c) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted and if no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
ARTICLE VI
Certificates Representing Stock
SECTION 1. Certificates; Signatures . Upon request every holder of uncertificated shares shall be entitled to have a certificate, signed by or in the name of the Corporation by the Chairman or Vice-Chairman of the Board of Directors, or the President or Vice-President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, representing the number of shares registered in certificate form. Any and all signatures on any such certificate may be facsimiles. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. The name of the holder of record of the shares represented thereby, with the number of such shares and the date of issue, shall be entered on the books of the Corporation.
SECTION 2. Transfers of Stock . Upon compliance with provisions restricting the transfer or registration of transfer of shares of stock, if any, shares of capital stock shall be transferable on the books of the Corporation only by the holder of record thereof in person, or by a duly authorized attorney, upon surrender and cancellation of certificates for a like number of shares, properly endorsed, and the payment of all taxes due thereon.
SECTION 3. Fractional Shares . The Corporation may, but shall not be required to, issue certificates for fractions of a share where necessary to effect authorized transactions, or the Corporation may pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined, or it may issue scrip in registered or bearer form over the manual or facsimile signature of an officer of the Corporation or of its agent, exchangeable as therein provided for full shares, but such scrip shall not entitle the holder to any rights of a stockholder except as therein provided.
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The Board of Directors shall have power and authority to make all such rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the Corporation.
SECTION 4. Lost, Stolen or Destroyed Certificates . The Corporation may issue a new certificate of stock in place of any certificate, theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Board of Directors may require the owner of any lost, stolen or destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of any such new certificate.
ARTICLE VII
INDEMNIFICATION
SECTION 1. Scope . The Corporation shall, to the fullest extent permitted by Section 145 of the Delaware General Corporation Law, as that Section may be amended and supplemented from time to time (the “ DGCL ”), indemnify any director, officer, employee or agent of the Corporation, against expenses (including attorneys’ fees), judgments, fines, amounts paid in settlement and/or other matters referred to in or covered by such Section, by reason of the fact that such person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
SECTION 2. Exculpation .
(a) Subject to Section 145 of the DGCL, no Indemnified Party (as defined below) shall be liable, in damages or otherwise, to the Corporation, its stockholders, the directors or any of their affiliates for any act or omission performed or omitted by any of them in good faith (including, without limitation, any act or omission performed or omitted by any of them in reliance upon and in accordance with the opinion or advice of experts, including, without limitation, of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation), except with respect to (i) any act taken by such Indemnified Party purporting to bind the Corporation that has not been authorized pursuant to these Bylaws or (ii) any act or omission with respect to which such Indemnified Party was grossly negligent or engaged in intentional misconduct.
(b) To the extent that, at law or in equity, any Indemnified Party has duties (including fiduciary duties) and liabilities relating thereto to the Corporation or to its stockholders, such Indemnified Party acting under these Bylaws shall not be liable to the Corporation or to its stockholders for its good faith reliance on the provisions of these Bylaws. The provisions of these Bylaws, to the extent that they restrict, modify or eliminate the duties and liabilities of an Indemnified Party otherwise existing at law or in equity, shall replace such other duties and liabilities of such Indemnified Party, to the maximum extent permitted by applicable law.
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SECTION 3. Indemnification .
(a) To the fullest extent permitted by applicable law, the Corporation shall indemnify and hold harmless and pay all judgments and claims against (i) the Board of Directors (ii) each officer of the Corporation, (iii) each director and (iv) each stockholder or their respective affiliates, officers, directors, employees, shareholders, partners, managers and members (each, an “ Indemnified Party ”, each of which shall be a third party beneficiary of these Bylaws solely for purposes of Sections 3 and 4 of this Article VII ) from and against any loss or damage incurred by an Indemnified Party or by the Corporation for any act or omission taken or suffered by such Indemnified Party in good faith (including, without limitation, any act or omission taken or suffered by any of them in reliance upon and in accordance with the opinion or advice of experts, including, without limitation, of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation) in connection with the purpose and business of the Corporation, including costs and reasonable attorneys’ fees and any amount expended in the settlement of any claims or loss or damage, except with respect to (i) any act taken by such Indemnified Party purporting to bind the Corporation that has not been authorized pursuant to these Bylaws or (ii) any act or omission with respect to which such Indemnified Party was grossly negligent or engaged in intentional misconduct.
(b) The satisfaction of any indemnification obligation pursuant to Section 3(a) of this Article VII shall be from and limited to Corporation assets (including insurance and any agreements pursuant to which the Corporation, its officers or employees are entitled to indemnification) and the stockholder, in such capacity, shall not be subject to personal liability therefor.
(c) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification hereunder shall be advanced by the Corporation prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final adjudication after all possible appeals have been exhausted that such Indemnified Party is not entitled to be indemnified hereunder.
(d) The Corporation may purchase and maintain insurance, on behalf of all Indemnified Parties and other persons against any liability which may be asserted against, or expense which may be incurred by, any such person in connection with the Corporation’s activities, whether or not the Corporation would have the power to indemnify such person against such liabilities under the provisions of these Bylaws.
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(e) Promptly after receipt by an Indemnified Party of notice of the commencement of any investigation, action, suit, arbitration or other proceeding, whether civil or criminal (collectively, “ Proceeding ”), such Indemnified Party shall, if a claim for indemnification in respect thereof is to be made against the Corporation, give written notice to the Corporation of the commencement of such Proceeding; provided , however , that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Corporation of its obligations under this Section 3 of this Article VII , except to the extent that the Corporation is actually prejudiced by such failure to give notice. In case any such Proceeding is brought against an Indemnified Party (other than a derivative suit in right of the Corporation), the Corporation will be entitled to participate in and to assume the defense thereof to the extent that the Corporation may wish, with counsel reasonably satisfactory to such Indemnified Party. After notice from the Corporation to such Indemnified Party of the Corporation’s election to assume the defense of such Proceeding, the Corporation will not be liable for expenses subsequently incurred by such Indemnified Party in connection with the defense thereof. The Corporation will not consent to entry of any judgment or enter into any settlement of such Proceeding that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect of such Proceeding and the related claim.
(f) The right to indemnification and the advancement of expenses conferred in this Section 3 of this Article VII shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, agreement, bylaw, vote of the Board of Directors or otherwise. The rights conferred upon any Indemnified Party in Sections 2 and 3 of this Article VII shall be contract rights that vest upon the occurrence or alleged occurrence of any act or omission giving rise to any proceeding or threatened proceeding and such rights shall continue as to any Indemnified Party who has ceased to be a manager, director or officer and shall inure to the benefit of such Indemnified Party’s heirs, executors and administrators. Any amendment, alteration or repeal of Sections 2 and 3 of this Article VII that adversely affects any right of any Indemnified Party or its successors shall be prospective only and shall not limit or eliminate any such right with respect to any proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment, alteration or repeal.
SECTION 4. Primary Obligation . With respect to any Indemnified Party who is employed, retained or otherwise associated with, or appointed or nominated by a stockholder or any of its affiliates and who acts or serves as a director, officer, manager, fiduciary, employee, consultant, advisor or agent of, for or to the Corporation or any of its subsidiaries, the Corporation or its subsidiaries shall be primarily liable for all indemnification, reimbursements, advancements or similar payments (the “ Indemnity Obligations ”) afforded to such Indemnified Party acting in such capacity or capacities on behalf or at the request of the Corporation or any of its subsidiaries, in such capacity, whether the Indemnity Obligations are created by law, organizational or constituent documents, contract (including these Bylaws) or otherwise. Notwithstanding the fact that such stockholder and/or any of its affiliates, other than the Corporation (such persons, together with its and their heirs, successors and assigns, the “ Stockholder Parties ”) may have concurrent liability to an Indemnified Party with respect to the Indemnity Obligations, in no event shall the Corporation or any of its subsidiaries have any right or claim against any of the Stockholder Parties for contribution or have rights of subrogation against any of the Stockholder Parties through an Indemnified Party for any payment made by the Corporation or any of its subsidiaries with respect to any Indemnity Obligation. In addition, in the event that any Stockholder Parties pay or advance to an Indemnified Party any amount with respect to an Indemnity Obligation, the Corporation shall, or shall cause its subsidiaries to, as applicable, promptly reimburse such Stockholder Party for such payment or advance upon request.
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SECTION 5. Continuing Obligation . The provisions of this Article VII shall be deemed to be a contract between the Corporation and each director of the Corporation who serves in such capacity at any time while these Bylaws are in effect, and any repeal or modification thereof shall not affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought based in whole or in part upon any such state of facts.
SECTION 6. Nonexclusive . The indemnification and advancement of expenses provided for under this Article VII shall (i) not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement or vote of stockholders or disinterested directors or otherwise, both as to action in their official capacities and as to action in another capacity while holding such office, (ii) continue unto a person who has ceased to be a director and (iii) inure to the benefit of the heirs, executors and administrators of such a person.
SECTION 7. Other Persons . In addition to the indemnification rights of directors, officers, employees or agents of the Corporation, the Board of Directors in its discretion shall have the power, on behalf of the Corporation, to indemnify any other person made a party to any action, suit or proceeding who the Corporation may indemnify under Section 145 of the DGCL.
SECTION 8. Definitions . The phrases and terms set forth in this Article VII shall be given the same meaning as the identical terms and phrases are given in Section 145 of the DGCL, as that Section may be amended and supplemented from time to time.
ARTICLE VIII
Dividends
Subject always to the provisions of law and the Certificate of Incorporation, the Board of Directors shall have full power to determine whether any, and, if any, what part of any, funds legally available for the payment of dividends shall be declared as dividends and paid to stockholders; the division of the whole or any part of such funds of the Corporation shall rest wholly within the lawful discretion of the Board of Directors, and it shall not be required at any time, against such discretion, to divide or pay any part of such funds among or to the stockholders as dividends or otherwise; and before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the Board of Directors shall think conducive to the interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created.
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ARTICLE IX
Ratification
Any transaction, questioned in any law suit on the ground of lack of authority, defective or irregular execution, adverse interest of director, officer or stockholder, non-disclosure, miscomputation, or the application of improper principles or practices of accounting, may be ratified before or after judgment, by the Board of Directors or by the stockholders, and if so ratified shall have the same force and effect as if the questioned transaction had been originally duly authorized. Such ratification shall be binding upon the Corporation and its stockholders and shall constitute a bar to any claim or execution of any judgment in respect of such questioned transaction.
ARTICLE X
Corporate Seal
The corporation may have a corporate seal. The corporate seal shall have inscribed thereon the name of the Corporation and the year of its incorporation, and shall be in such form and contain such other words and/or figures as the Board of Directors shall determine. The corporate seal may be used by printing, engraving, lithographing, stamping or otherwise making, placing or affixing, or causing to be printed, engraved, lithographed, stamped or otherwise made, placed or affixed, upon any paper or document, by any process whatsoever, an impression, facsimile or other reproduction of said corporate seal.
ARTICLE XI
Fiscal Year
The fiscal year of the Corporation shall be fixed, and shall be subject to change, by the Board of Directors. Unless otherwise fixed by the Board of Directors, the fiscal year of the Corporation shall be the calendar year.
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ARTICLE XII
Waiver of Notice
Whenever notice is required to be given by these Bylaws or by the Certificate of Incorporation or by law, a written waiver thereof, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to notice.
ARTICLE XIII
Amendments
The Board of Directors shall have the power to adopt, amend or repeal these Bylaws. Bylaws adopted by the Board of Directors may be repealed or changed, and new Bylaws made, by the stockholders, and the stockholders may prescribe that any Bylaw made by them shall not be altered, amended or repealed by the Board of Directors.
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Exhibit 10.1
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this “ Agreement ”) is hereby entered into as of August 31, 2017 by and between E. I. du Pont de Nemours and Company (“ DuPont ”) and Edward D. Breen, an individual (the “ Executive ” and, together with DuPont, the “ Parties ” and each a “ Party ”).
RECITALS
WHEREAS, pursuant to the transactions contemplated by that certain Agreement and Plan of Merger, dated as of December 11, 2015 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “ Merger Agreement ”), by and among DowDuPont Inc. (f/k/a Diamond-Orion HoldCo, Inc.), a Delaware corporation (the “ Company ”), The Dow Chemical Company (“ Dow ”), Diamond Merger Sub, Inc., DuPont and Orion Merger Sub, Inc., it is contemplated that DuPont and Dow will each become subsidiaries of the Company (such transactions the “ Mergers ” and the date of consummation of the Mergers the “ Closing Date ”);
WHEREAS, Executive is employed as the Chief Executive Officer of DuPont and serves as the Chair of the Board of Directors of DuPont;
WHEREAS, DuPont and Executive intend that, effective as of the consummation of the Mergers on the Closing Date (such date for purposes of this Agreement, the “ Commencement Date ”) and pursuant to the terms and conditions set forth herein, Executive shall be employed by DuPont and shall serve as the Chief Executive Officer of the Company and serve as a member of the Board of Directors of the Company (the “ Board ”);
WHEREAS, following the Commencement Date, the Company intends to pursue the separation of its agriculture business, material science business and specialty products business through one or more tax-efficient transactions, resulting in three independent, publicly traded companies (the “ Split-Offs ”);
WHEREAS, the Company intends to establish three committees (the “ Advisory Committees ”) of its Board to generally oversee the business and affairs of each of the Company’s agriculture business, material science business and specialty products business in preparation for the Split-Offs;
WHEREAS, Executive is presently a Tier I participant in the DuPont Senior Executive Severance Plan (the “ SESP ”); and
WHEREAS, the Parties intend that the SESP and Executive’s Tier I participation therein shall continue in effect as of and following the Commencement Date in accordance with and subject to the terms and conditions of the SESP and this Agreement.
NOW, THEREFORE, in consideration of the respective agreements of the Parties contained herein, it is agreed as follows:
1. Term . The term (the “ Employment Term ”) of Executive’s employment under this Agreement shall be for the period commencing upon consummation of the Mergers and ending on the third anniversary of the Commencement Date.
2. Employment . During the Employment Term:
(a) Position, Duties and Reporting . Executive shall be employed by DuPont and shall serve as Chief Executive Officer of the Company. Executive shall report directly to the Board in his capacity as Chief Executive Officer of the Company. Executive shall perform the duties, undertake the responsibilities and exercise the authority customarily performed, undertaken and exercised by persons situated in similar executive capacities and consistent with Section 2.2(b) (as well as, to the extent applicable, Section 2.2(d) and 2.2(e)) of the Merger Agreement.
(b) Service on Board and Other Positions . The Company shall, commencing the Commencement Date appoint, and thereafter nominate and re-nominate Executive for election to the Board and, before the consummation of each respective Split-Off, the respective Advisory Committee, and Executive shall not receive separate or additional compensation for such service. At, or any time after, the time of his termination of employment with DuPont for any reason, Executive shall resign from the Board and any Advisory Committee if requested to do so by the Company and Executive shall resign from each other position he holds with the Company or its affiliates within the meaning of Rule 12b-2 promulgated under Section 12 of the Securities Exchange Act of 1934, as amended (each, an “ Affiliate ”). The preceding sentence shall survive any termination of the Employment Term.
(c) Other Activities . Excluding periods of vacation and sick leave to which Executive is entitled and other service outside of the Company contemplated in this Section 2(c), Executive shall devote his full professional time and attention to the business and affairs of the Company to discharge the responsibilities of Executive hereunder. Before joining or agreeing to serve on corporate, civil or charitable boards or committees on which he does not serve as of the date hereof, Executive shall obtain approval of the Board. It is acknowledged and agreed that, as of the date hereof, Executive serves as a member of the Board of Directors of Comcast Corporation and the Advisory Board of New Mountain Capital LLC and that such service does not violate the terms of this Section 2(c). Executive may manage personal and family investments, participate in industry organizations and deliver lectures at educational institutions, so long as such activities do not interfere with the performance of Executive’s responsibilities hereunder.
(d) Employment Location . Executive’s principal place of employment shall be located in the headquarters of DuPont effective as of the Commencement Date or such other location as mutually agreed upon by the Board and Executive, provided that Executive shall travel and shall temporarily render services at other locations as may reasonably be required by his duties hereunder.
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(e) Company Policies . Executive shall be subject to and shall abide by each of the personnel policies applicable to senior executives of the Company, including without limitation any policy restricting pledging and hedging investments in Company equity by Company executives, any policy the Company adopts regarding the recovery of incentive compensation (sometimes referred to as “clawback”) and any additional clawback provisions as required by law and applicable listing rules. This Section 2(e) shall survive the termination of the Employment Term.
3. Annual Compensation .
(a) Base Salary . Effective beginning September 1, 2017, and during the Employment Term, Executive shall be paid an annual base salary of $1,930,800 (as it may be modified in accordance with the succeeding provisions of this subsection (a), “ Base Salary ”) in accordance with DuPont’s regular payroll practices as in effect from time to time. During the Employment Term, the Base Salary will be reviewed at least annually and is subject to increase at the discretion of the independent members of the Board upon recommendation from the Compensation Committee of the Board (the “ Committee ”). Any such increase shall be Executive’s “Base Salary” for all purposes under this Agreement and the SESP.
(b) Annual Bonus . With respect to each fiscal year of the Company beginning during the Employment Term, Executive shall be eligible to receive a target annual cash bonus of 165% of Base Salary (the “ Target Bonus ”) based on the achievement of such performance criteria as may be established by the independent members of the Board upon recommendation from the Committee. In respect of calendar year 2017, Executive shall be eligible to receive a target annual cash bonus of 165% of Base Salary based on performance metrics in respect of DuPont, provided that the performance in respect of the portion of 2017 before the Commencement Date shall be based on performance during the first half of 2017 as determined by the Board of Directors of DuPont prior to the Commencement Date.
4. Long-Term Incentive Compensation . With respect to each fiscal year of the Company beginning during the Employment Term, Executive shall be eligible to receive long-term incentive compensation grants with a grant date fair value for financial accounting purposes of $12,700,000 at target based on the achievement of such performance criteria as may be established by the independent members of the Board upon recommendation from the Committee. To the extent that eligibility for “retirement” (or analogous concept) favorably affects rights under any such grant, Executive’s age and years of service with the Company from time to time shall be deemed to satisfy the requirements for such retirement. As soon as practicable following the Commencement Date but in any event during 2017, the Executive shall receive a long-term incentive compensation grant in respect of 2017 with a grant date fair value for financial accounting purposes of $1,600,000 and in the form of non-qualified stock options.
5. Synergy Incentive Grant . As soon as practicable following the Commencement Date, the Committee shall establish a synergy incentive program with such terms as it shall determine in its discretion (the “ Synergy Incentive Program ”) in which Executive shall be a participant to incentivize the Split-Offs and achieve anticipated synergies in respect of the Mergers.
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6. Other Benefits . During the Employment Term:
(a) Employee Benefits . Executive shall be entitled to participate in all employee benefit plans, practices and programs maintained by the Company and its Affiliates on the same basis and terms as are applicable to senior executives of the Company generally.
(b) Business Expenses . Upon submission of proper invoices in accordance with, and subject to, the normal policies and procedures of the Company and its Affiliates, Executive shall be entitled to receive prompt reimbursement of all reasonable out-of-pocket business, entertainment and travel expenses incurred by him in connection with the performance of his duties hereunder.
(c) Office and Facilities . Executive shall be provided with an appropriate permanent office and with such permanent secretarial and other support facilities as are commensurate with Executive’s status with the Company, which facilities shall be adequate for the performance of his duties hereunder.
(d) Vacation . Executive shall be entitled to paid time off in accordance with the policies as periodically established for senior executives of the Company, provided that he shall be eligible for not less than four weeks of vacation per calendar year (pro-rated for any partial calendar year during the Employment Term).
7. Termination Events . Executive’s employment with the Company and its Affiliates hereunder may be terminated under the circumstances set forth below in this Section 7:
(a) Death . Executive’s employment shall be terminated as of the date of Executive’s death.
(b) Disability . The Company may terminate Executive’s employment upon and at any time during the continuance of his disability within the meaning of the long-term disability plan maintained by the Company or its Affiliates in respect of senior executives of the Company as in effect from time to time (“ Disability ”).
(c) By the Company . The Company may terminate Executive’s employment (either for Cause or without Cause (within the meaning of the SESP (“ Cause ”))) effective as of the date specified in the applicable Notice of Termination (as defined below).
(d) By Executive . Executive may terminate his employment (either for Good Reason or without Good Reason (within the meaning of the SESP (“ Good Reason ”))) effective as of the date specified in the applicable Notice of Termination.
Notwithstanding anything in this Agreement to the contrary, to the extent required to avoid the imposition of a tax under Section 409A (“ Section 409A ”) of the Internal Revenue Code of 1986, as amended (the “ Code ”), Executive shall not be considered to have terminated employment with the Company and its Affiliates for purposes of this Agreement until he would be considered to have incurred a “separation from service” from the Company and its Affiliates within the meaning of Section 409A.
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8. Termination Procedures .
(a) Notice of Termination . Any purported termination of Executive’s employment (other than by reason of death) shall be communicated by written Notice of Termination provided in accordance with Section 11(d) hereof. For purposes of this Agreement, a “Notice of Termination” shall mean a notice which shall (i) indicate the specific termination provision in this Agreement relied upon, (ii) specify the Date of Termination (as defined below) and (iii) set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated.
(b) Date of Termination . For purposes of this Agreement, “Date of Termination” shall mean (i) if Executive’s employment is terminated for Disability, thirty (30) days after Notice of Termination is given (provided that Executive shall not have returned to the full-time performance of Executive’s duties during such thirty (30) day period), and (ii) if Executive’s employment is terminated for any other reason, the date specified in the Notice of Termination (which, in the case of a termination by the Company, shall not be less than thirty (30) days (except in the case of a termination for Cause) and, in the case of a termination by Executive, shall not be less than fifteen (15) days nor more than sixty (60) days, respectively, from the date such Notice of Termination is given).
9. Compensation Upon Termination . Upon termination of Executive’s employment during the Employment Term, Executive (or his estate, as the case may be) shall be entitled to compensation and benefits as follows:
(a) Accrued Compensation . If Executive’s employment is terminated for any reason, the Company shall pay (or cause to be paid) to Executive or his estate, as the case may be, except to the extent it would result in a duplication of benefits payable under the SESP, (i) any unpaid Base Salary earned by Executive, and any unused paid time off accrued by Executive, through the Date of Termination, (ii) any expenses incurred but not yet reimbursed in accordance with Section 6(b) hereof, (iii) any vested employee benefits to which Executive is entitled as of the Date of Termination under the employee benefit plans of the Company or an Affiliate, and (iv) except in the case of a termination by the Company for Cause, any annual cash bonus earned by Executive for a prior year but not yet paid to Executive as of the Date of Termination (collectively, as applicable, the “ Accrued Compensation ”).
(b) For Cause or Without Good Reason . If Executive’s employment is terminated by the Company for Cause or by Executive without Good Reason, the Company shall pay (or cause to be paid) to Executive the Accrued Compensation and shall have no further obligation to provide compensation or benefits to Executive by reason of such termination.
(c) Without Cause or for Good Reason . If Executive’s employment by the Company shall be terminated by the Company without Cause or by Executive for Good Reason during the Employment Term, then Executive’s entitlements shall be those determined for a
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Tier I participant under the terms of the SESP (without regard for any expiration of the Term (as defined under the SESP) thereunder). The Parties acknowledge and agree that Good Reason shall be deemed (i) not to exist under the SESP or this Agreement solely by reason of changes in his status or duties to reflect consummation of the Mergers and (ii) to exist under the SESP and this Agreement in the event of any failure to appoint Executive as Chief Executive Officer of the Company and a member of the Board upon or immediately following the consummation of the Mergers. The release of claims required under the SESP as a condition of such entitlements shall be in the form attached hereto as Exhibit A (“ Release ”).
(d) Death/Disability . If Executive’s employment by the Company shall be terminated by reason of Executive’s death or Disability, the Company shall provide (or cause to be provided) to Executive (or his estate, as the case may be) the compensation and benefits to which Executive would have been entitled as a Tier I participant under the SESP upon a termination of his employment by the Company without Cause, subject to a Release from Executive (or his estate, as the case may be) on the terms otherwise applicable under the SESP.
(e) Equity and Other Long-Term Incentive Awards . All unvested equity or other long-term incentive compensation awards outstanding immediately prior to a termination of Executive’s employment shall be governed by the respective terms of the awards.
10. Non-Disparagement . From and following the Date of Termination, Executive agrees not to make negative comments or otherwise disparage the Company or any of its controlled affiliates, or any of their directors or officers at a level of Vice President or above, in any manner reasonably likely to be harmful to them or their business, business reputation or personal reputation, as applicable. The Company agrees that the Company will not, and the Company will instruct the individuals reporting directly to Executive as of the Date of Termination and the members of the Board as of the Date of Termination to not, while employed by the Company or its Affiliates or serving as a member of the Board, as the case may be, make negative comments about Executive or otherwise disparage Executive in any manner that is reasonably likely to be harmful to his business reputation or personal reputation. The Company and DuPont on the one hand and Executive on the other will not assist, encourage, discuss, cooperate, incite, or otherwise confer with or aid any others in discrediting the other or in pursuit of a claim or other action against the other, except as required by law. Nothing contained in this Section 10 shall prevent any Party from making truthful statements in any judicial, arbitration, governmental, or other appropriate forum for adjudication of disputes between or among the Parties or in any response or disclosure by any Party compelled by legal process or required by applicable law.
11. Miscellaneous .
(a) Identity of Company; Actions of Company, Board and Committee . For purposes of this Agreement, references to the Company include reference to its Affiliates, including DuPont, as applicable. To the extent the provisions of this Agreement require any action or omission by DowDuPont Inc., the Board or the Committee, DuPont shall use its best efforts to cause such action or omission and agrees that it shall be liable in respect of any failure to cause such action or omission.
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(b) Successors and Assigns .
(i) This Agreement shall be binding upon and shall inure to the benefit of the Company and DuPont, their respective successors and permitted assigns and the Company and DuPont shall require any respective successor or assign to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company and DuPont, respectively, would be required to perform if no such succession or assignment had taken place. Neither the Company nor DuPont may assign or delegate any rights or obligations hereunder except to a successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company or DuPont, as applicable.
(ii) Neither this Agreement nor any right or interest hereunder shall be assignable or transferable by Executive, his beneficiaries or legal representatives, except by will or by the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by Executive’s legal personal representatives.
(c) Fees and Expenses . The Company will reimburse (or cause to be reimbursed) Executive’s reasonable attorney’s fees incurred in connection with the negotiation of this Agreement up to a maximum of $50,000. The Company shall reimburse Executive (or cause him to be reimbursed) for all expenses (including reasonable attorney’s fees) incurred by Executive in enforcing this Agreement or any provision hereof or as a result of the Company or DuPont contesting the validity or enforceability of this Agreement or any provision hereof, regardless of the outcome thereof, provided, that the Company shall not be obligated to pay any such fees and expenses arising out of any action brought by Executive if the finder of fact in such action determines that Executive’s position in such action was frivolous or maintained in bad faith. Such costs shall be paid to Executive promptly upon presentation of expense statements or other supporting information evidencing the incurrence of such expenses.
(d) Notice . For the purposes of this Agreement, notices and all other communications provided for in the Agreement (including any Notice of Termination) shall be in writing and shall be deemed to have been duly given when personally delivered or sent by Certified mail, return receipt requested, postage prepaid, addressed to the respective addresses last given by one Party to another Party or, if none, in the case of the Company or DuPont, to the Company’s headquarters directed to the attention of the Company’s General Counsel and, in the case of Executive, to the most recent address shown in the personnel records of the Company or its Affiliates. All notices and communications shall be deemed to have been received on the date of personal delivery thereof or on the third business day after the mailing thereof, except that notice of change of address shall be effective only upon receipt.
(e) Withholding . The Company shall be entitled to withhold (or to cause the withholding of) the amount, if any, of all taxes of any applicable jurisdiction required to be withheld by an employer with respect to any amount paid to Executive hereunder. The Company or DuPont, in its sole and absolute discretion, shall make all determinations as to whether it is obligated to withhold any taxes hereunder and the amount thereof.
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(f) Modification . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by Executive and DuPont and, on or after the Commencement Date, the Company. No waiver by any Party at any time of any breach by another Party of, or compliance with, any condition or provision of this Agreement to be performed by the other Party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.
(g) Effect of Other Law . Anything herein to the contrary notwithstanding, the terms of this Agreement shall be modified to the extent required to meet the provisions of the Sarbanes-Oxley Act of 2002, Section 409A, the Dodd-Frank Wall Street Reform and Consumer Protection Act or other federal law applicable to the employment arrangements between Executive and the Company; provided, and for the avoidance of doubt, the adjudication of any dispute between Executive and the Company in respect of Executive’s entitlements under the SESP shall be de novo by a court of competent jurisdiction. Any delay in providing benefits or payments, any failure to provide a benefit or payment, or any repayment of compensation that is required under the preceding sentence shall not in and of itself constitute a breach of this Agreement, provided, however, that the Company shall provide (or cause to be provided) economically equivalent payments or benefits to Executive to the extent permitted by law.
(h) Governing Law . This Agreement shall be governed by and construed and enforced in accordance with the laws of the Delaware applicable to contracts executed in and to be performed entirely within such State, without giving effect to the conflict of law principles thereof.
(i) Severability . The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof.
(j) Headings . The headings and captions in this Agreement are provided for reference and convenience only, shall not be considered part of this Agreement, and shall not be employed in the construction of this Agreement.
(k) Construction . This Agreement shall be deemed drafted equally by both the Parties, and any presumption or principle that the language is to be construed against either Party shall not apply.
(l) Counterparts . This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, but all of which together will constitute one and the same Agreement. Signatures delivered by facsimile or in .pdf format shall be deemed effective for all purposes.
(m) Section 409A . The Parties intend for the payments and benefits under this Agreement to be exempt from Section 409A or, if not so exempt, to be paid or provided in a manner which complies with the requirements of such section, and intend that this Agreement shall be construed and administered in accordance with such intention. If any payments or
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benefits due to Executive hereunder would cause the application of an accelerated or additional tax under Section 409A, such payments or benefits shall be restructured in a manner which does not cause such an accelerated or additional tax. For purposes of the limitations on nonqualified deferred compensation under Section 409A, each payment of compensation under this Agreement shall be treated as a separate payment of compensation. Without limiting the foregoing and notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Agreement during the six-month period immediately following Executive’s separation from service shall instead be paid on the first business day after the date that is six months following Executive’s termination date (or death, if earlier). Notwithstanding anything to the contrary in this Agreement, all (A) reimbursements and (B) in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A, including, where applicable, the requirement that (x) the amount of expenses eligible for reimbursement, or in kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other calendar year; (y) the reimbursement of an eligible expense will be made no later than the last day of the calendar year following the year in which the expense is incurred; and (z) the right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit.
(n) Entire Agreement . This Agreement, the Synergy Incentive Program and the SESP constitute the entire agreement between or among Executive, DuPont and the Company and supersede all prior agreements, if any, understandings and arrangements, oral or written, between or among Executive, DuPont and the Company with respect to the subject matter hereof, including without limitation any term sheets or other similar presentations. In the event of any inconsistency between this Agreement and any other plan, program, practice or agreement in which Executive is a participant (“ Other Agreement ”), this Agreement shall control unless such Other Agreement specifically refers to this Agreement as not so controlling.
(o) Certain Executive Acknowledgments . Executive acknowledges that Executive has read and understands this Agreement, is fully aware of its legal effect, has not acted in reliance upon any representations or promises made by the Company other than those contained in writing herein, and has entered into this Agreement freely based on Executive’s own judgment. Executive acknowledges that he has had the opportunity to consult with legal counsel of his choice in connection with the drafting, negotiation and execution of this Agreement.
(p) Indemnification; D&O Insurance . Executive shall be indemnified and held harmless (including advances of attorneys fees and costs, subject to a customary undertaking to refund such amounts if finally determined not to be so indemnifiable), and covered under any contract of directors and officers liability insurance that covers members of the Board (or members of the DuPont board of directors as applicable under the Merger Agreement), in respect of his actions and omissions to act as an officer of the Company and member of the Board (and Advisory Committee, or otherwise on behalf of the Company) (and of DuPont prior to the Commencement Date) to the maximum extent permitted under the Merger Agreement, Company certificate of incorporation and by-laws and applicable law. This Section 11(p) shall survive the termination of Executive’s employment and the expiration of the Employment Term.
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(q) Effect if Mergers Do Not Occur . This Agreement shall cease to be of any force or effect if the Merger Agreement is terminated before the Mergers are consummated.
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IN WITNESS WHEREOF, the Parties have executed this Employment Agreement as of the day and year first above written.
| E. I. DU PONT DE NEMOURS AND COMPANY | ||
| By: |
/s/ Benito Cachinero-Sánchez |
|
| Name: | Benito Cachinero-Sánchez | |
| Title: | Senior Vice President – DuPont Human Resources | |
| EXECUTIVE | ||
|
/s/ Edward D. Breen |
||
| Edward D. Breen | ||
EXHIBIT A
GENERAL RELEASE
DowDuPont Inc. (“Employer”) and Edward D. Breen, his/her heirs, executors, administrators, successors, and assigns (collectively “Employee”), agree that:
1. Last Day of Employment . Employee’s last day of employment with Employer, and/or each of Employer’s parents, affiliates, and subsidiaries, is , 20 (“Separation Date”).
2. Consideration . Provided that (a) Employee signs this General Release (“Agreement”) and does not revoke this Agreement within the time periods set forth herein, and (b) Employee complies with the provisions of Section 10 (Restrictive Covenants) of the Company’s Senior Executive Severance Plan, Employee will receive the payments and benefits set forth in Section 9(c) of the Employment Agreement entered into as of August 31, 2017 by and between Employer and Employee (“Employment Agreement”), including the cash payments set forth on Attachment 1 hereto. Such payments and benefits shall be provided in accordance with the terms of the Employment Agreement, and will not commence before Employee’s employment with Employer terminates on the Separation Date, Employee signs this Agreement within the time period set forth below, the revocation period set forth below expires, and Employee has not revoked Employee’s acceptance of this Agreement.
3. No Consideration Absent Execution of this Agreement . Employee understands and agrees that Employee would not receive the monies and/or benefits specified in paragraph “2” above, except for Employee’s execution of this Agreement and the fulfillment of the promises contained herein.
4. General Release, Claims Not Released and Related Provisions .
a. General Release of Claims . Employee knowingly and voluntarily releases and forever discharges Employer, its parent corporation, affiliates and subsidiaries, each of their divisions, predecessors, insurers, successors and assigns, and all of their current and former employees, attorneys, officers, directors and agents, whether now in existence or hereafter created, both individually and in their business capacities, and their employee benefit plans and programs and their administrators and fiduciaries (collectively referred to throughout the remainder of this Agreement as “Releasees”), of and from any and all claims, complaints, actions, suits, arbitrations, disputes, rights, promises, obligations, losses, damages, costs, fees, attorneys’ fees or liabilities of every kind whatsoever, in law or in equity known and unknown, asserted or unasserted (“Claims”), which Employee ever had, now has or may hereafter claim to have by reason of any matter, cause or thing whatsoever: (i) arising from the beginning of time up to the date the Employee executes this Agreement, including, but not limited to (A) any such Claims relating in any way to Employee’s employment relationship with Employer or any other Releasee, (B) any such Claims arising under any federal, state, local or foreign statute or regulation, including, without limitation, the Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Employee Retirement Income Security Act of 1974, the Worker Adjustment and
Retraining Notification Act of 1988, 42 U.S.C. Section 1981, the Equal Pay Act of 1963, the Occupational Safety and Health Act of 1970, the Fair Credit Reporting Act of 1970, the Delaware, Discrimination in Employment Act, the Delaware Handicapped Persons Employment Protections Act, each as amended and including each of their respective implementing regulations, and/or any other federal, state, local or foreign law (statutory, regulatory or otherwise) that may be legally waived and released, and (C) any such public policy, contract, tort, or common law Claim, including without limitation, breach of contract, breach of a covenant of good faith and fair dealing, interference with business opportunity or contracts, negligence, misrepresentation, fraud, detrimental reliance, personal injury, assault, battery, defamation, false light, invasion of privacy, infliction of emotional distress, retaliation, constructive discharge, or wrongful discharge; (ii) arising out of or relating to the termination of Employee’s employment with Employer or any other Releasee; or (iii) arising under or relating to any policy, agreement, understanding or promise, written or oral, formal or informal, between Employer or any other Releasee and Employee, including, but not limited to, the Employment Agreement.
b. Claims Not Released . Employee is not waiving any rights he/she may have to: (a) his own vested or accrued employee benefits under Employer’s health, welfare, or retirement plans as of the Separation Date; (b) his benefits and/or the right to seek benefits under applicable workers’ compensation and/or unemployment compensation statutes; (c) claims for indemnification (including advances) under Section 11(p) of the Employment Agreement, under the Merger Agreement (as defined in the Employment Agreement) or under the Company’s governing instruments or applicable law, or any applicable contract of directors and officers liability insurance, (d) claims as a stockholder of the Company, (e) any bounty that may be recoverable as a result of participating in the Securities and Exchange Commission’s whistleblower program, or any other bounty program for which recovery cannot be waived as a matter of law; (f) pursue claims which by law cannot be waived by signing this Agreement; (g) enforce this Agreement; and/or (h) challenge the validity of this Agreement.
c. Governmental Agencies . Nothing in this Agreement prohibits or prevents Employee from filing a charge with or participating, testifying, or assisting in any investigation, hearing, whistleblower proceeding or other proceeding before the U.S. Equal Employment Opportunity Commission, the National Labor Relations Board or a similar agency enforcing federal, state or local anti-discrimination laws, or any federal, state, or local government agency (e.g. EEOC, NLRB, SEC., etc.), nor does anything in this Agreement preclude, prohibit, or otherwise limit, in any way, Employee’s rights and abilities to contact, communicate with, report matters to, or otherwise participate in any whistleblower program administered by any such agencies. However, to the maximum extent permitted by law, Employee agrees that if such an administrative claim is made to such an anti-discrimination agency, Employee shall not be entitled to recover any individual monetary relief or other individual remedies, except that Employee may recover any bounty that may be payable as a result of participating in the Securities and Exchange Commission’s whistleblower program as set forth in paragraph “4b” above.
In addition, nothing in this Agreement or any other agreement with or policy of Employer or any other Releasee, including but not limited to the release of claims, prohibits Employee from: (1) reporting possible violations of federal law or regulations, including any possible
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securities laws violations, to any governmental agency or entity, including but not limited to the U.S. Department of Justice, the U.S. Securities and Exchange Commission, the U.S. Congress, or any agency Inspector General; (2) making any other disclosures that are protected under the whistleblower provisions of federal law or regulations; or (3) otherwise fully participating in any federal whistleblower programs, including but not limited to any such programs managed by the U.S. Securities and Exchange Commission and/or the Occupational Safety and Health Administration. Moreover, nothing in this Agreement prohibits or prevents Employee from receiving individual monetary awards or other individual relief by virtue of participating in such federal whistleblower programs.
5. Waiver of California Civil Code § 1542 (for Employees who lived and/or worked for Employer in California) . To affect a full and complete release as described above, Employee expressly waives and relinquishes all rights and benefits of section 1542 of the Civil Code of the State of California, and does so understanding and acknowledging the significance and consequence of specifically waiving section 1542. Section 1542 of the California Civil Code states:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
Thus, notwithstanding the provisions of section 1542, and to implement a full and complete release of all claims, Employee expressly acknowledges this Agreement is intended to include, without limitation, all claims Employee does not know or suspect to exist in Employee’s favor at the time of signing this Agreement, and that this Agreement contemplates the extinguishment of any such Claim or Claims. Employee warrants Employee has read this Agreement, including this waiver of California Civil Code section 1542, and has had the opportunity to consult with legal counsel about this Agreement and specifically about this waiver of section 1542, and that Employee understands this Agreement and the section 1542 waiver. Employee therefore freely and knowingly enters into this Agreement. Employee acknowledges he/she may later discover facts different from or in addition to those he/she now knows or believes to be true regarding the matters released or described in this Agreement, and even so agrees the releases and agreements contained in this Agreement shall remain effective in all respects notwithstanding any later discovery of any different or additional facts. Employee assumes any and all risk of any mistake in connection with the true facts involved in the matters, disputes or controversies described in this Agreement or with regard to any facts now unknown relating to those matters.
6. Acknowledgments and Affirmations .
| a. | Employee affirms that Employee has been paid and/or has received all compensation, wages, bonuses, commissions, and/or benefits which are due and payable as of the date Employee signs this Agreement. |
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| b. | Employee also affirms that Employee has been granted any leave to which Employee was entitled under the Family and Medical Leave Act or state or local leave or disability accommodation laws. |
| c. | To the extent that Employee has any pending applications or claims for benefits, including Long-Term Disability benefits, Employee hereby withdraws such applications and/or claims in consideration of this Agreement. |
| d. | Employee further affirms that Employee has no known workplace injuries or occupational diseases that Employee has not disclosed to Employer. |
| e. | Employee further affirms that all of Employer’s decisions regarding Employee’s pay and benefits through the Separation Date were not discriminatory based on age, disability, race, color, sex, religion, national origin or any other classification protected by law. |
7. Limited Disclosure . Employee agrees, prior to any public disclosure by the Company, not to disclose any information regarding the substance of this Agreement, except to Employee’s spouse, tax advisor, an attorney with whom Employee chooses to consult regarding Employee’s consideration of this Agreement and/or to any federal, state or local government agency.
8. Return of DuPont Property .
a. Employee affirms that Employee has returned all of Employer’s property, documents, and/or confidential information in Employee’s possession or control, whether in hard copy of electronic format. Employee also affirms that Employee is in possession of all of Employee’s property that Employee had at Employer’s premises and that Employer is not in possession of any of Employee’s property.
b. Notwithstanding any other provision of this Agreement or any other agreement with or policy of Employer or any other Releasee, pursuant to the federal Defend Trade Secrets Act of 2016, Employee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made to Employee’s attorney in relation to a lawsuit for retaliation against Employee for reporting a suspected violation of law; or (C) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
9. Rights in Connection With Investigations . Notwithstanding any of the foregoing to the contrary, nothing in Agreement or any other policy or agreement with Employer or any other Releasee shall be construed to prohibit Employee from reporting possible violations of law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, the Congress and any Inspector
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General, or making other disclosures that are protected under the whistleblower provision of law or regulation. Employee is not required to obtain prior approval or notify Employer that such reports or disclosures have been made. Furthermore, Employee’s cooperation with and participation in any investigation by, or action taken by, federal, state or local administrative agencies, regulatory agencies or law enforcement agencies will not violate any provision of this Agreement.
10. Cooperation . Following the termination of Employee’s employment, Employee agrees to cooperate with Employer in any reasonable manner as Employer may request, including, but not limited to, furnishing information to and otherwise consulting with Employer, and assisting Employer in any litigation or potential litigation or other legal matters in which Employer (or any of the Releasees) and Employee are not adverse, provided that such litigation or potential litigation or other legal matters concern or relate to Employee’s employment with Employer, including, but not limited to, meeting with and fully answering the questions of Employer or its representatives or agents, and testifying and preparing to testify at any deposition or trial. Employer agrees to compensate Employee for any reasonable and documented out-of-pocket expenses incurred as a result of such cooperation.
11. Governing Law and Interpretation . This Agreement shall be governed and conformed in accordance with the laws of the State of Delaware without regard to its conflict of laws provision. Any action arising out of or relating to this Agreement or Employee’s employment or termination of employment shall be brought exclusively in the state or federal courts of the State of Delaware, and the Parties expressly consent to the jurisdiction and venue of such courts. In the event of a breach of any provision of this Agreement, either party may institute an action specifically to enforce any term or terms of this Agreement and/or seek any damages for breach. Should any provision of this Agreement be declared illegal or unenforceable by any court of competent jurisdiction and cannot be modified to be enforceable, excluding the general release language, such provision shall immediately become null and void, leaving the remainder of this Agreement in full force and effect.
12. [ Explanation of Selection Process, Eligibility Requirements, and Decisional Unit Data .] 1
13. Nonadmission of Wrongdoing . The parties agree that neither this Agreement nor the furnishing of the consideration for this Agreement shall be deemed or construed at any time for any purpose as an admission by Releasees of wrongdoing or evidence of any liability or unlawful conduct of any kind.
14. Amendment . This Agreement may not be modified, altered or changed except in writing and signed by both Parties wherein specific reference is made to this Agreement.
| 1 | Explanation to be included if Employee’s termination is in connection with an exit incentive program or other employment termination program. |
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15. Entire Agreement . This Agreement sets forth the entire agreement between the parties hereto, and fully supersedes any prior agreements or understandings between the parties, except any written intellectual property, restrictive covenant or confidentiality agreements between Employer and Employee, which are incorporated herein by reference and shall remain in full force and effect. If any such agreements are in conflict with each other, they shall be construed to provide the maximum protection for Employer.
16. Expiration of Offer & Revocation . The offer contained in this Agreement will expire if it is not accepted within [twenty-one (21)] [forty-five (45)] 2 calendar days following Employee’s Separation Date, unless such expiration is waived in writing by an authorized designee of Employer. Employee may revoke the Agreement for up to seven (7) calendar days after signing the Agreement, after which the Agreement will become irrevocable, unless Employee is employed in Minnesota, in which case Employee may revoke the Agreement for up to fifteen (15) calendar days after signing the Agreement, after which the Agreement will become irrevocable. Any such revocations shall be submitted by either:
| a. | Mailing a revocation notice, with the subject line “Revocation,” to: HR Direct Service Center, Attention: Release, 974 Centre Road, Wilmington, Delaware 19805 ; or |
| b. | Emailing a revocation notice, with the subject line “ Revocation, ” to: hrdirect.usa@dupont.com. |
Provided that Employee has not revoked this Agreement in the time frames set forth above, this Agreement shall become effective on the eighth (8th) day after it has been executed by Employee.
17. Execution and Return of Agreement . This Agreement may be executed and returned on or after the Separation Date by either:
| a. | Mailing a signed copy of this complete agreement (not just the signature page), with subject line “Release,” to: HR Direct Service Center, Attention: Release, 974 Centre Road, Wilmington, Delaware 19805 ; or |
| b. | Scanning and emailing a signed copy of this complete agreement (not just the signature page), with subject line “Release,” to: hrdirect.usa@dupont.com . |
This Agreement may not be executed or returned prior to the Separation Date. The Agreement may be signed in counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute the same instrument. A signature made on a copy of this Agreement transmitted by electronic mail will have the same effect as the original signature.
| 2 | Forty-five (45) days (instead of twenty-one (21)) days to be provided if Employee’s termination is in connection with an exit incentive program or other employee termination program. |
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EMPLOYEE IS ADVISED THAT EMPLOYEE HAS UP TO [TWENTY ONE (21)] [FORTY-FIVE (45)] CALENDAR DAYS FOLLOWING EMPLOYEE’S SEPARATION DATE TO EXECUTE AND RETURN THIS AGREEMENT. EMPLOYEE ALSO IS ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO EMPLOYEE’S SIGNING OF THIS AGREEMENT. EMPLOYEES WHO WERE EMPLOYED BY EMPLOYER WITHIN THE STATE OF WEST VIRGINIA ARE FURTHER ADVISED THAT THE WEST VIRGINIA STATE BAR ASSOCIATION CAN BE REACHED AT 1 (800) 642-3617.
EMPLOYEE MAY REVOKE THIS AGREEMENT FOR A PERIOD OF SEVEN (7) CALENDAR DAYS FOLLOWING THE DAY EMPLOYEE SIGNS THIS AGREEMENT. IF EMPLOYEE WAS EMPLOYED BY EMPLOYER WITHIN THE STATE OF MINNESOTA, EMPLOYEE MAY ALSO REVOKE EMPLOYEE’S WAIVER OF CLAIMS UNDER THE MINNESOTA HUMAN RIGHTS ACT WITHIN FIFTEEN (15) CALENDAR DAYS FOLLOWING THE DAY EMPLOYEE SIGNS THIS AGREEMENT. INFORMATION ON HOW TO SUBMIT A REVOCATION IS SET FORTH IN PARAGRAPH 16, ABOVE.
EMPLOYEE AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL UP TO [TWENTY ONE (21)] [FORTY-FIVE (45)] CALENDAR DAY CONSIDERATION PERIOD.
EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS EMPLOYEE HAS OR MIGHT HAVE AGAINST RELEASEES.
The parties knowingly and voluntarily sign this Agreement as of the date(s) set forth below:
| EDWARD D. BREEN | DOWDUPONT INC. | |||||||
| By: |
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By: |
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| [Insert Appropriate Signatory] | ||||||||
| Date |
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Date: |
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| This Agreement shall not be signed by Employee prior to the Separation Date. | ||||||||
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Attachment 1
Cash Payments and Benefits
[Insert schedule of cash payments and noncash benefits pursuant to Section 9(c) or Section 9(d) of the Employment Agreement]