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 Earliest Event Reported: November 14, 2018

 

 

ANADARKO PETROLEUM CORPORATION

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   1-8968   76-0146568

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

1201 Lake Robbins Drive

The Woodlands, Texas 77380-1046

(Address of principal executive offices including Zip Code)

Registrant’s telephone number, including area code (832) 636-1000

 

 

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

(b)(c) On November 15, 2018, Anadarko Petroleum Corporation (“Anadarko”) announced that Robert G. Gwin, age 55, has been appointed President of Anadarko, effective immediately. Mr. Gwin was named Executive Vice President, Finance and Chief Financial Officer in May 2013 and previously served as Senior Vice President, Finance and Chief Financial Officer since March 2009 and Senior Vice President since March 2008. He also has served as Chairman of the Board of Western Gas Holdings, LLC (“WGH”) since October 2009 and as a director since August 2007. Additionally, Mr. Gwin has served as Chairman of the Board of Western Gas Equity Holdings, LLC (“WGEH”) since September 2012 and served as President of WGH from August 2007 to September 2009 and as Chief Executive Officer of WGH from August 2007 to January 2010. He joined Anadarko in January 2006 as Vice President, Finance and Treasurer and served in that capacity until March 2008. Mr. Gwin also served as Chairman of the Board of LyondellBasell Industries N.V. from August 2013 through September 2018 and has served as a director of that entity since May 2011.

Other than as disclosed in this report, there are no arrangements or understandings between Mr. Gwin and any other person pursuant to which Mr. Gwin was selected as an officer. Mr. Gwin does not have any family relationship with any director or other officer of Anadarko or any person nominated or chosen by Anadarko to become a director or officer. There are no transactions in which Mr. Gwin has an interest requiring disclosure under Item 404(a) of Regulation S-K.

In connection with his appointment, Mr. Gwin will receive the following compensation elements, as approved by the Compensation and Benefits Committee (the “Compensation Committee”) of the Anadarko Board of Directors (the “Board”): (1) an increase in base salary from $750,000 to $1,000,000, (2) an increase in annual target incentive bonus from 95% to 110% of base salary, and (3) an increase in annual equity award, granted on November 15, 2018, from $4,450,000 to $5,400,000 in value delivered 50% in performance units, 25% in stock options, and 25% in restricted stock units.

Mr. R. A. Walker, formerly Chairman, President and Chief Executive Officer, will continue as Chairman and Chief Executive Officer, effective immediately. Also effective immediately, Mr. Robert K. Reeves, formerly Executive Vice President and Chief Administrative Officer, will continue as Executive Vice President until his previously announced retirement on or before December 31, 2018.

Additionally, on November 15, 2018, Anadarko announced that Mr. Benjamin M. Fink, age 48, has been appointed Executive Vice President, Finance and Chief Financial Officer, effective immediately. Mr. Fink was named Senior Vice President in February 2017 and previously served as Vice President, Finance and Assistant Secretary since May 2013, having joined Anadarko in 2007. Mr. Fink has also served as President and Chief Executive Officer of WGH and WGEH since May 2017 and as a director of WGH since February 2017. He previously served as President, Chief Executive Officer, Chief Financial Officer and Treasurer of WGH and WGEH from February 2017 to May 2017, and as Senior Vice President and Chief Financial Officer of WGH from 2009 to February 2017 and of WGEH since its formation in September 2012 to February 2017. From 2001 until 2006, he held executive management positions at Prosoft Learning Corporation, including serving as its President and Chief Executive Officer from 2004 until that company’s sale in 2006. From 2000 to 2001 he co-founded and served as Chief Operating Officer and Chief Financial Officer of Meta4 Group Limited, an online direct marketer based in Hong Kong and Tokyo. Previously, he held positions of increasing responsibility at Prudential Capital Group and Prudential Asset Management Asia, where he focused on the negotiation, structuring and execution of private debt and equity investments.

Other than as disclosed in this report, there are no arrangements or understandings between Mr. Fink and any other person pursuant to which Mr. Fink was selected as an officer. Mr. Fink does not have any family relationship with any director or other officer of Anadarko or any person nominated or chosen by Anadarko to become a director or officer. There are no transactions in which Mr. Fink has an interest requiring disclosure under Item 404(a) of Regulation S-K.

In connection with his appointment, Mr. Fink will receive the following compensation elements, as approved by the Compensation Committee: (1) an increase in base salary from $500,000 to $625,000, (2) an increase in annual target incentive bonus from 80% to 95% of base salary, and (3) an increase in annual equity

 

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award, granted on November 15, 2018, from $2,750,000 to $3,000,000 in value delivered 50% in performance units, 25% in stock options, and 25% in restricted stock units. Mr. Fink will also enter into the form of Key Employee Change of Control Contract for Executive Vice Presidents approved by the Compensation Committee in November 2016 and more fully described on page 49 of Anadarko’s annual proxy statement filed with the Securities and Exchange Commission on March 23, 2018 (the “2018 Proxy Statement”).

The press release announcing the appointments of Messrs. Gwin and Fink has been filed as Exhibit 99.1 to this report and is incorporated by reference herein.

(d) On November 15 2018, the Board elected Alexandra Pruner and Michael K. Grimm as a members of the Board, effective November 15, 2018.

Ms. Pruner, 56, has served as Partner and Chief Financial Officer of Perella Weinberg Partners, a global independent advisory firm providing strategic and financial advice and asset-management services, since it combined in December 2016 with Tudor, Pickering, Holt & Co., LLC, an energy-focused investment bank and asset-management firm. Prior to that, she served as CFO and a member of the Management Committee at Tudor, Pickering, Holt & Co. since the firm’s founding in 2007. Ms. Pruner served as Senior Vice President, Strategic Business Development and publisher of World Oil magazine for Gulf Publishing Company from 2002 to 2007. Prior to joining Gulf Publishing Company, she spent two years in the technology sector serving the energy industry, including Vice President, Energy Vertical at Idea Integration, an IT development and design firm and as Vice President, Marketing for PetroCosm Corporation, an oilfield service B2B procurement and supply chain management company. She served as Director of Investor Relations and Corporate Communications for The Houston Exploration Company, an independent exploration and production company, from 1997 to 2000. Ms. Pruner has extensive experience with the energy industry and in investment banking, having also been with Shearson Lehman Brothers from 1984 to 1990, including as Vice President, Corporate Affairs and Vice President, Government Affairs.

Ms. Pruner is also the founder and a board member of Women’s Global Leadership Conference in Energy & Technology, serves as a member of the Central Advisory Development Board for Amegy Bank and is President of the President’s Advisory Council on the Economics Department at Brown University. She is also a board member of The Houston Symphony Endowment (President), the United Way of Greater Houston (Audit Chair), and the Houston advisory board of the Nature Conservancy. Ms. Pruner holds a B.A. in economics from Brown University.

Mr. Grimm, 64, is currently President of Rising Star Petroleum, L.L.C. He is the immediate Past Chairman of the Board for RSP Permian, Inc. Prior to being named Chairman, Mr. Grimm was a Co-Founder of RSP Permian in 2010, and served as a Co-Chief Executive Officer until 2014. From 2006 to 2017, Mr. Grimm served as President and Chief Executive Officer of Rising Star Energy Development Company, and from 1995 to 2006, he served as President and Chief Executive Officer of Rising Star Energy, L.L.C., an upstream exploration and production company active in onshore continental United States that he co-founded in 1995. From 1990 to 1994, Mr. Grimm was Vice President of Land and Exploration for Placid Oil Company. Prior to that, Mr. Grimm was employed for 13 years in the Land and Exploration Departments for Amoco Production Company in Houston and New Orleans. Mr. Grimm has more than 41 years of experience in the oil and natural gas industry and currently serves as a Director of Energy Transfer LP (formerly Energy Transfer Partners, L.P.), since December 2005. He also serves as Chairman of the Compensation Committee for ET.

Mr. Grimm has been active in several industry organizations, including the Independent Petroleum Association of America, the All American Wildcatters, the American Association of Professional Landmen, and the co-founder of NAPE. Mr. Grimm holds a B.B.A./P.L.M. degree from the University of Texas at Austin and is a member of the Silver Spurs Hall of Fame.

In connection with their election to the Board, Ms. Pruner and Mr. Grimm will each receive $123,626.37 in value of deferred shares of Anadarko’s common stock, which is a pro rata grant based on the full-year value of $250,000 that is awarded on the date of Anadarko’s annual meeting of stockholders upon each director’s election. Ms. Pruner and Mr. Grimm will also receive a pro rata amount of the standard Board retainer and

 

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meeting fees, as well as other previously disclosed benefits for non-employee directors, plus expenses related to attendance. The specific terms of these awards, as most recently approved by the Compensation Committee, are described further in 2018 Proxy Statement. Ms. Pruner and Mr. Grimm will also each enter into a director indemnification agreement with Anadarko, the form of which has been previously filed with the Securities and Exchange Commission.

There are no arrangements or understandings between Ms. Pruner or Mr. Grimm and any other person pursuant to which Ms. Pruner or Mr. Grimm was selected as a director. Neither Ms. Pruner nor Mr. Grimm has any family relationship with any director or executive officer of Anadarko or any person nominated or chosen by Anadarko to become a director or executive officer. There are no transactions in which Ms. Pruner or Mr. Grimm has an interest requiring disclosure under Item 404(a) of Regulation S-K.

The press release announcing the election of Ms. Pruner and Mr. Grimm as directors of Anadarko has been filed as Exhibit 99.2 to this report and is incorporated by reference herein.

(e) New forms of award agreements to be used in connection with grants awarded by the Compensation Committee to executive officers on and after November 15, 2018 of stock options, restricted stock units and performance units pursuant to the 2012 Omnibus Incentive Compensation Plan, as amended from time to time, are attached hereto as Exhibit 10.1, 10.2 and 10.3, respectively, and incorporated herein by reference.

 

Item 5.03

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

(a)    Effective November 14, 2018, the Board amended and restated the By-Laws of Anadarko (as amended and restated from time to time, the “By-Laws”). Article VII was amended in order to provide that the officers of the Company shall include a Tax Officer, as the Board of Directors shall from time to time elect or appoint.

This summary is qualified in its entirety by reference to the By-Laws, as amended and restated as of November 14, 2018, and filed as Exhibit 3.1 attached hereto and incorporated by reference herein.

 

Item 8.01

Other Events.

On November 15, 2018, Anadarko announced that the Board authorized an expansion of the company’s program to repurchase its outstanding common stock to $5.0 billion, representing a $1.0 billion increase. The authorization extends through June 30, 2020.

 

Item 9.01

Financial Statements and Exhibits

(d) Exhibits

 

Exhibit

No.

   Document
  3.1    By-Laws of Anadarko Petroleum Corporation, amended and restated as of November 14, 2018.
10.1    Form of Anadarko Petroleum Corporation 2012 Omnibus Incentive Compensation Plan, as Amended and Restated Effective as of May 10, 2018, Stock Option Award Agreement (November 2018)
10.2    Form of Anadarko Petroleum Corporation 2012 Omnibus Incentive Compensation Plan, as Amended and Restated Effective as of May 10, 2018, Restricted Stock Unit Award Agreement (November 2018)
10.3    Form of Anadarko Petroleum Corporation 2012 Omnibus Incentive Compensation Plan, as Amended and Restated Effective as of May 10, 2018, Performance Unit Award Agreement (November 2018)
99.1    Anadarko Press Release dated November 15, 2018, Regarding Leadership Changes
99.2    Anadarko Press Release dated November 15, 2018, Regarding Board of Director Elections

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Dated: November 20, 2018

 

ANADARKO PETROLEUM CORPORATION
(Registrant)
By:  

/s/ Amanda M. McMillian

  Amanda M. McMillian
  Executive Vice President and General Counsel

 

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Exhibit 3.1

BY-LAWS

OF

ANADARKO PETROLEUM CORPORATION

Amended and Restated effective November 14, 2018


BY-LAWS

OF

ANADARKO PETROLEUM CORPORATION

TABLE OF CONTENTS

 

ARTICLE I – Office and Records

     1  

ARTICLE II – Meetings of Stockholders

     1  

ARTICLE III – Board of Directors

     18  

ARTICLE IV – Meetings of the Board

     18  

ARTICLE V – Committees of the Board

     19  

ARTICLE VI – Compensation of Directors

     21  

ARTICLE VII – Officers

     22  

ARTICLE VIII – Powers of Execution

     28  

ARTICLE IX – Indemnification

     29  

ARTICLE X – Stock Certificates and Transfer Thereof

     30  

ARTICLE XI – Checks, Drafts, Bank Accounts, Etc.

     32  
ARTICLE XII – Miscellaneous    33  

 

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BY-LAWS

OF

ANADARKO PETROLEUM CORPORATION

ARTICLE I

OFFICE AND RECORDS

1.1.    The Corporation shall maintain a registered office in Delaware, and may maintain such other offices and keep its books, documents and records at such places within or without Delaware as may from time to time be designated by the Board of Directors of the Corporation (hereinafter the “Board” or the “Board of Directors”).

ARTICLE II

MEETINGS OF STOCKHOLDERS

2.1.    All meetings of the stockholders of the Corporation shall be held at such place or places, if any, within or without the State of Delaware, as may from time to time be fixed by the Board of Directors, or as shall be specified or fixed in the respective notices or waivers of notice thereof.

2.2.     The Annual Meeting of Stockholders shall be held on such date and at such time as may be fixed by the Board and stated in the notice thereof, for the purpose of electing directors and for the transaction of only such other business as is properly brought before the meeting in accordance with these By-Laws. The Corporation may postpone, recess, adjourn, reschedule or cancel any annual meeting of stockholders previously scheduled by the Board.

2.3.    Special meetings of the stockholders for any purpose or purposes may be called at any time by a majority of the Board, the Chairman of the Board, the Chief Executive Officer or the President, but such special meetings may not be called by any other person or persons. The business transacted at a special meeting shall be confined to the purposes specified in the notice thereof. Special meetings shall be held at such date and at such time as the Board may designate. The Corporation may postpone, recess, adjourn, reschedule or cancel any special meeting of stockholders previously scheduled by the Board.

2.4.    Whenever stockholders are required or permitted to take any action at a meeting, a notice of meeting of stockholders shall be given that shall state the place, if any, date and hour of the meeting, and, in the case of a special meeting, the purpose or purposes thereof. Unless otherwise provided by law, the Restated Certificate of Incorporation or these By-Laws, the notice of any such meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of such meeting to each stockholder entitled to vote at such meeting.

2.5.    Unless otherwise provided by law, the Restated Certificate of Incorporation or these By-Laws, the holders of a majority in voting power of the outstanding shares of capital stock of

 

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the Corporation entitled to vote at the meeting, present either in person or by proxy, shall constitute a quorum at such meeting. Whether or not a quorum is present, the person presiding over the meeting or the holders of a majority in voting power of the outstanding shares of capital stock of the Corporation entitled to vote at the meeting, present in person or by proxy, may adjourn the meeting from time to time to another time or place, at which time, if a quorum is present, any business may be transacted which might have been transacted at the meeting as originally scheduled. Notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken, unless the adjournment is for more than thirty (30) days or, if after the adjournment, a new record date is fixed for the adjourned meeting, in which event a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

2.6.    Except as otherwise provided by or pursuant to the provisions of the Restated Certificate of Incorporation, each stockholder entitled to vote at any meeting shall be entitled, for each share held of record on the record date for determining the stockholders entitled to vote at such meeting, to one vote for each share of stock held by such stockholder who has voting power on the question. Except as otherwise provided by these By-Laws, each director shall be elected by the vote of a majority of the votes cast with respect to that director’s election at any meeting for the election of directors at which a quorum is present, provided that if, as of the tenth (10th) day preceding the date the Corporation first mails its notice of meeting for such meeting to the stockholders of the Corporation, the number of nominees exceeds the number of directors to be elected (a “Contested Election”), the directors shall be elected by the vote of a plurality of the votes cast. For purposes of this Section 2.6 of these By-Laws, a majority of votes cast shall mean that the number of votes cast “for” a director’s election exceeds the number of votes cast “against” that director’s election (with “abstentions” and “broker nonvotes” not counted as a vote cast either “for” or “against” that director’s election).

In order for any incumbent director to become a nominee of the Board of Directors for further service on the Board of Directors, such person must submit an irrevocable resignation, contingent on (i) that person not receiving a majority of the votes cast in an election that is not a Contested Election, and (ii) acceptance of that resignation by the Board of Directors in accordance with the policies and procedures adopted by the Board of Directors for such purpose. In the event an incumbent director fails to receive a majority of the votes cast in an election that is not a Contested Election, the Governance and Risk Committee, or such other committee designated by the Board of Directors pursuant to these By-laws, shall make a recommendation to the Board of Directors as to whether to accept or reject the resignation of such incumbent director, or whether other action should be taken. The Board of Directors shall act on the resignation, taking into account the committee’s recommendation, and publicly disclose (by a press release and filing an appropriate disclosure with the Securities and Exchange Commission (the “SEC”)) its decision regarding the resignation and, if such resignation is rejected, the rationale behind the decision within ninety (90) days following certification of the election results. The committee in making its recommendation and the Board of Directors in making its decision each may consider any factors and other information that they consider appropriate and relevant.

All other matters presented to the stockholders at a meeting at which a quorum is present shall, unless a different or minimum vote is required by the Restated Certificate of Incorporation,

 

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these By-laws, the rules and regulations of any stock exchange applicable to the Corporation, or applicable law or pursuant to any regulation applicable to the Corporation or its securities in which case such different or minimum vote shall be the applicable vote on the matter, be decided by the affirmative vote of the holders of a majority in voting power of the shares of capital stock of the Corporation entitled to vote at the meeting present in person or represented by proxy at the meeting and entitled to vote on the subject matter.

Elections of directors need not be by ballot; provided however, that by resolution duly adopted by the Board, a vote by ballot may be required.

2.7.    Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the Corporation a revocation of the proxy or a new proxy bearing a later date.

2.8.    The Corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the Corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the Corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the Corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the Corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the Corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

2.9.     Notice of Stockholder Business and Nominations .

(A)     Annual Meetings of Stockholders .

(1) Nominations of persons for election to the Board of Directors and the proposal of other business to be considered by the stockholders may be made at an annual meeting of stockholders only (a) pursuant to the Corporation’s notice of meeting (or any supplement

 

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thereto), (b) by or at the direction of the Board of Directors, (c) by any stockholder of the Corporation who (i) was a stockholder of record at the time of giving of notice provided for in this Section 2.9 and at the time of the annual meeting, (ii) is entitled to vote at the meeting and (iii) complies with the notice procedures set forth in this Section 2.9 as to such business or nomination, or (d) by any Eligible Stockholder (as defined in paragraph (C)(2) of this Section 2.9) whose Stockholder Nominee (as defined in paragraph (C)(1) of this Section 2.9) is included in the Corporation’s proxy materials for the relevant annual meeting. Clauses (c) and (d) of the foregoing sentence shall be the exclusive means for a stockholder to make director nominations, and clause (c) of the foregoing sentence shall be the exclusive means for a stockholder to submit other business (other than matters properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and included in the Corporation’s notice of meeting) before an annual meeting of stockholders.

(2) Without qualification, for nominations or any other business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of this Section 2.9, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation and any such proposed business other than the nominations of persons for election to the Board of Directors must constitute a proper matter for stockholder action. To be timely, such stockholder’s notice shall be delivered by mail to the Secretary at the principal executive offices of the Corporation not later than the close of business on the ninetieth (90 th ) day, nor earlier than the close of business on the one hundred twentieth (120 th ) day, prior to the first anniversary of the preceding year’s annual meeting (provided, however, that in the event that the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, or if no annual meeting was held in the preceding year, notice by the stockholder must be so delivered not earlier than the close of business on the one hundred twentieth (120 th ) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90 th ) day prior to such annual meeting or, if the first public announcement of the date of such annual meeting is less than one hundred (100) days prior to the date of such annual meeting, the tenth (10 th ) day following the day on which public announcement of the date of such meeting is first made by the Corporation). In no event shall an adjournment, recess or postponement of an annual meeting or the public announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. To be in proper form, such stockholder’s notice must: (a) set forth, as to the stockholder giving the notice, the beneficial owner, if any, on whose behalf the nomination or proposal is made, and their respective affiliates or associates or others acting in concert therewith (i) the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner, and of their respective affiliates or associates or others acting in concert therewith; (ii) (A) the class or series and number of shares of the Corporation which are, directly or indirectly, owned beneficially and of record by such stockholder and such beneficial owner, and their respective affiliates or associates or others acting in concert therewith (B) any option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Corporation or with a value derived in whole or in part from the value of any class or series of shares of the Corporation, or any derivative or synthetic arrangement having the characteristics of a long position in any class or series of shares of the Corporation, or any contract, derivative, swap or other transaction or series of transactions designed to produce economic benefits and risks that correspond substantially to the ownership of

 

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any class or series of shares of the Corporation, including due to the fact that the value of such contract, derivative, swap or other transaction or series of transactions is determined by reference to the price, value or volatility of any class or series of shares of the Corporation, whether or not such instrument, contract or right shall be subject to settlement in the underlying class or series of capital stock of the Corporation, through the delivery of cash or other property, or otherwise, and without regard to whether the stockholder of record, the beneficial owner, or any affiliates or associates or others acting in concert therewith, may have entered into transactions that hedge or mitigate the economic effect of such instrument, contract or right, or any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the Corporation and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of any class or series of shares of the Corporation (any of the foregoing, a “Derivative Instrument”) directly or indirectly owned beneficially by such stockholder, the beneficial owner, or any of their respective affiliates or associates or others acting in concert therewith, (C) any proxy, contract, arrangement, understanding, or relationship pursuant to which such stockholder, such beneficial owner and their respective affiliates or associates or others acting in concert therewith have any right to vote any class or series of shares of any security of the Corporation, and any contract, arrangement, understanding, relationship or otherwise, the purpose or effect of which is to increase or decrease the voting power of such stockholder, such beneficial owner and their respective affiliates or associates or others acting in concert therewith, (D) any short interest in any security of the Corporation (for purposes of this Section 2.9 a person shall be deemed to have a short interest in a security if such person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security) involving such stockholder, such beneficial owner and their respective affiliates or associates or others acting in concert therewith, (E) any rights to dividends on the shares of the Corporation owned beneficially by such stockholder, such beneficial owner and their respective affiliates or associates or others acting in concert therewith that are separated or separable from the underlying shares of the Corporation, (F) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such stockholder, such beneficial owner and their respective affiliates or associates or others acting in concert therewith is a general partner or, directly or indirectly, beneficially owns an interest in a general partner (G) any performance-related fees (other than an asset-based fee) that such stockholder, such beneficial owner and their respective affiliates or associates or others acting in concert therewith is entitled to based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, if any, as of the date of such notice, including, without limitation, any such interests held by members of the immediate family sharing the same household of such stockholder, such beneficial owner and their respective affiliates or associates or others acting in concert therewith, (H) any significant equity interests or any Derivative Instruments or short interests in any principal competitor of the Corporation held by such stockholder, such beneficial owner and their respective affiliates or associates or others acting in concert therewith and (I) any direct or indirect interest of such stockholder, such beneficial owner and their respective affiliates or associates or others acting in concert therewith in any contract with the Corporation, any affiliate of the Corporation or any principal competitor of the Corporation (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement) (which information shall be supplemented by such stockholder and beneficial owner, if any, not later than ten (10) days after the record date for the

 

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meeting to disclose such ownership as of the record date); (iii) any other information relating to such stockholder and beneficial owner, if any, that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; and (iv) a representation whether the stockholder or the beneficial owner, if any, intends or is part of a group which intends (y) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the business to be proposed and/or (z) otherwise to solicit proxies from stockholders in support of such proposal or the nomination; (b) if the notice relates to any business other than a nomination of a director or directors that the stockholder proposes to bring before the meeting, set forth (i) a brief description of the business desired to be brought before the meeting (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the By-Laws of the Corporation, the language of the proposed amendment), the reasons for conducting such business at the meeting and any material interest of such stockholder and beneficial owner, if any, in such business and (ii) a description of all agreements, arrangements and understandings between such stockholder and beneficial owner, if any, and any other person or persons (including their names) in connection with the proposal of such business by such stockholder; (c) set forth, as to each person, if any, whom the stockholder proposes to nominate for election or reelection to the Board of Directors (i) all information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (including such person’s written consent to serving as a director if elected) and (ii) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such stockholder and the beneficial owner, if any, on whose behalf the nomination is made and their respective affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation all information that would be required to be disclosed pursuant to Item 404 promulgated under Regulation S-K if the stockholder making the nomination, such beneficial owner, or any affiliate or associate thereof or person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, and a description of any other agreements, arrangements and understandings between or among such stockholder, such beneficial owner, any of their respective affiliates or associates or others acting in concert therewith, and any other person or persons (including their names) in connection with the nomination by such stockholder; and (d) with respect to each nominee for election or reelection to the Board of Directors, include a completed and signed questionnaire, representation and agreement required by Section 2.10. The Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as a director of the Corporation, including information relevant to the independence, or lack thereof, of such nominee.

(3)    Notwithstanding anything in the second sentence of paragraph (A)(2) of this Section 2.9 to the contrary, in the event that the number of directors to be elected to the Board of Directors at an annual meeting is increased and there is no public announcement by

 

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the Corporation naming the nominees for the additional directorships at least ten days (10) days prior to the last day a stockholder may deliver a notice pursuant to paragraph (A)(2) of this Section 2.9, a stockholder’s notice required by paragraph (A)(2) of this Section 2.9 shall also be considered timely for nominations pursuant to clause (c) of paragraph (A)(1) of this Section 2.9, but only with respect to nominees for the additional directorships, if it shall be delivered by mail to the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth (10 th ) day following the day on which such public announcement is first made by the Corporation. In no event shall an increase in the number of directors to be elected at an annual meeting commence a new time period (or extend any time period) for the giving of a Stockholder Notice (as defined below) under paragraph (C) of this Section 2.9.

(B)     Special Meetings of Stockholders . Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting (1) by or at the direction of the Board of Directors or (2) provided that the Board of Directors has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who (a) is a stockholder of record at the time of giving of notice provided for in this Section 2.9 and at the time of the special meeting, (ii) is entitled to vote at the meeting, and (iii) complies with the notice procedures set forth in this Section 2.9 as to such nomination. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any such stockholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting, if the stockholder’s notice required by paragraph (A)(2) of this Section 2.9 with respect to any nomination (including the completed and signed questionnaire, representation and agreement required by Section 2.10) shall be delivered by mail to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the one hundred twentieth (120 th ) day prior to such special meeting and not later than the close of business on the later of the ninetieth (90 th ) day prior to such special meeting or if the first public announcement of the date of such special meeting is less than one hundred (100) days prior to the date of such special meeting, the tenth (10 th ) day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall an adjournment, recess or postponement of a special meeting or the public announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

(C)     Proxy Access for Director Nominations .

(1)     Subject to the terms and conditions of these By-Laws and the Restated Certificate of Incorporation, in connection with an annual meeting of stockholders at which directors are to be elected, the Corporation will include in its proxy statement and on its form of proxy (in addition to the persons nominated for election by the Board or any committee thereof) the name of a nominee for election to the Board submitted pursuant to this paragraph (C) of Section 2.9 (a “Stockholder Nominee”), and will include in its proxy statement information relating to the Stockholder Nominee (the “Required Information,” as defined below), if (i) the

 

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Stockholder Nominee satisfies the eligibility requirements in this paragraph (C) of Section 2.9, (ii) the Stockholder Nominee is identified in a notice (the “Stockholder Notice”) that is timely and proper and delivered in accordance with this paragraph (C) of Section 2.9 by a stockholder that qualifies as, or is acting on behalf of, an Eligible Stockholder (as defined below), (iii) the Eligible Stockholder expressly elects at the time of the delivery of the Stockholder Notice to have the Stockholder Nominee included in the Corporation’s proxy materials, and (iv) the additional requirements of these By-Laws are met.

(2)    To qualify as an “Eligible Stockholder,” a stockholder or beneficial owner must (i) Own and have Owned, continuously for at least three years as of the date of the Stockholder Notice, a number of shares that represents at least three percent (3%) of the outstanding shares of the Voting Stock as of the date of the Stockholder Notice (the “Required Shares”), and (ii) thereafter continue to own the Required Shares through such annual meeting of stockholders. For purposes of this paragraph (C) of Section 2.9, “Voting Stock” shall mean the capital stock of the Corporation generally entitled to vote in the election of directors. For purposes of satisfying the ownership requirements of this paragraph (C)(2) of Section 2.9, a group of no more than twenty (20) stockholders and/or beneficial owners may aggregate the shares of Voting Stock that each stockholder and/or beneficial owner has Owned continuously for at least three years as of the date of the Stockholder Notice. No stockholder or beneficial owner, alone or together with any of its affiliates, may be a member of more than one group of stockholders constituting an Eligible Stockholder under this paragraph (C) of Section 2.9. A group of funds that are (i) under common management and investment control, or (ii) a “group of investment companies,” as such term is defined in Section 12(d)(1)(G)(ii) of the Investment Company Act of 1940, as amended, shall be treated as one stockholder or beneficial owner. Whenever an Eligible Stockholder consists of a group of stockholders and/or beneficial owners, any and all requirements and obligations for an Eligible Stockholder set forth in this paragraph (C) of Section 2.9 must be satisfied by each such stockholder or beneficial owner, except that shares may be aggregated as specified in this paragraph (C)(2) of Section 2.9 and except as otherwise provided in this paragraph (C) of Section 2.9.

(3)     For purposes of this paragraph (C) of Section 2.9:

(i)     A stockholder or beneficial owner shall be deemed to “Own” only those outstanding shares of Voting Stock as to which such person possesses both (A) the full voting and investment rights pertaining to the shares and (B) the full economic interest in (including the opportunity for profit and risk of loss on) such shares; provided that the number of shares calculated in accordance with clauses (A) and (B) shall not include any shares (1) sold by such person or any of its affiliates in any transaction that has not been settled or closed, including any short sale, (2) borrowed by such person or any of its affiliates for any purposes or purchased by such person or any of its affiliates pursuant to an agreement to resell, or (3) subject to any option, warrant, forward contract, swap, contract of sale, or other derivative or similar agreement entered into by such person or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of outstanding shares of Voting Stock, in any such case which instrument or agreement has, or is intended to have, or if exercised would have, the purpose or effect of (x) reducing in any manner, to any extent or at any

 

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time in the future, such person’s or its affiliates’ full right to vote or direct the voting of any such shares, and/or (y) hedging, offsetting, or altering to any degree any gain or loss arising from the full economic ownership of such shares by such person or its affiliate. The terms “Owned,” “Owning” and other variations of the word “Own,” when used with respect to a stockholder or beneficial owner, shall have correlative meanings.

(ii)     A stockholder or beneficial owner shall “Own” shares held in the name of a nominee or other intermediary so long as the person retains the right to instruct how the shares are voted with respect to the election of directors and possesses the full economic interest in the shares. The person’s Ownership of shares shall be deemed to continue during any period in which the person has delegated any voting power by means of a proxy, power of attorney, or other instrument or arrangement that is revocable at any time by the person.

(iii)     A stockholder or beneficial owner’s Ownership of shares shall be deemed to continue during any period in which the person has loaned such shares provided that the person (A) both has the power to recall such loaned shares on five business days’ notice and recalls the loaned shares within five business days of being notified that its Stockholder Nominee will be included in the Corporation’s proxy materials for the relevant annual meeting, and (B) holds the recalled shares through the annual meeting.

(4)     For purposes of this paragraph (C) of Section 2.9, the “Required Information” that the Corporation will include in its proxy statement is:

(i)     the information concerning each Stockholder Nominee and the Eligible Stockholder that is required to be disclosed in the Corporation’s proxy statement by the applicable requirements of the Exchange Act and the rules and regulations thereunder, and

(ii)     if the Eligible Stockholder so elects, a written statement of the Eligible Stockholder (or, in the case of a group, a written statement of the group), not to exceed five-hundred (500) words, in support of each Stockholder Nominee, which must be provided at the same time as the Stockholder Notice for inclusion in the Corporation’s proxy statement for the annual meeting (the “Statement”).

Notwithstanding anything to the contrary contained in this paragraph (C) of Section 2.9, the Corporation may omit from its proxy materials any information or Statement that it, in good faith, believes is untrue in any material respect (or omits a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading) or would violate any applicable law, rule, regulation or listing standard. Nothing in this paragraph (C) of Section 2.9 shall limit the Corporation’s ability to solicit against and include in its proxy materials its own statements relating to any Eligible Stockholder or Stockholder Nominee.

(5)     Within the time period specified herein, the Stockholder Notice shall be delivered by a stockholder and shall set forth all information, representations and agreements

 

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required under paragraphs (A)(2)(a) and (A)(2)(c) of this Section 2.9 above (and for such purposes, references therein to “stockholder” and to the “beneficial owner,” if any, on whose behalf the nomination is made shall be deemed to refer to “Eligible Stockholder”), and in addition such Stockholder Notice shall include:

(i)    a copy of the Schedule 14N that has been or concurrently is filed with the SEC under the Exchange Act,

(ii)     a statement setting forth and certifying to the number of shares of Voting Stock the Eligible Stockholder Owns and has Owned (as defined in paragraph (C)(3) of this Section 2.9 of these By-Laws) continuously for at least three years as of the date of the Stockholder Notice and agreeing to continue to Own such shares through the annual meeting and stating whether it intends to maintain Ownership of the Required Shares for at least one year following the annual meeting, which statement shall also be included in the Schedule 14N filed with the SEC,

(iii)     the written agreement of the Eligible Stockholder addressed to the Corporation, setting forth the following additional agreements, representations, and warranties:

(A)     it will provide (1) the information required under paragraph (A)(2) of this Section 2.9 as of the record date, (2) notification in writing verifying the Eligible Stockholder’s continuous Ownership of the Required Shares as of the record date, and (3) immediate notice to the Corporation if the Eligible Stockholder ceases to own any of the Required Shares prior to the annual meeting of stockholders,

(B)     it (1) acquired the Required Shares in the ordinary course of business and not with the intent to change or influence control at the Corporation, and does not presently have any such intent, (2) has not nominated and will not nominate for election to the Board at the annual meeting any person other than the Stockholder Nominee(s) being nominated pursuant to this paragraph (C) of Section 2.9, (3) has not engaged and will not engage in, and has not been and will not be a participant (as defined in Item 4 of Exchange Act Schedule 14A) in, a solicitation within the meaning of Exchange Act Rule 14a- 1(l), in support of the election of any individual as a director at the annual meeting other than its Stockholder Nominee or a nominee of the Board, and (4) will not distribute to any stockholder any form of proxy for the annual meeting other than the form distributed by the Corporation, and

(C)     it will (1) assume all liability stemming from any legal or regulatory violation arising out of the Eligible Stockholder’s communications with the stockholders of the Corporation or out of the information that the Eligible Stockholder provided to the Corporation, (2) indemnify and hold harmless the Corporation and each of its directors, officers and employees individually against any liability, loss or damages in connection with any

 

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threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the Corporation or any of its directors, officers or employees arising out of any nomination submitted by the Eligible Stockholder pursuant to this paragraph (C) of Section 2.9, (3) comply with all laws, rules, regulations and listing standards applicable to any solicitation in connection with the annual meeting, (4) file all materials described below in clause (iii) of paragraph (C)(7) of this Section 2.9 with the SEC, regardless of whether any such filing is required under Exchange Act Regulation 14A, or whether any exemption from filing is available for such materials under Exchange Act Regulation 14A, and (5) promptly provide to the Corporation prior to the day of the annual meeting such additional information as reasonably requested by the Corporation, and

(iv)     in the case of a nomination by a group, the designation by all group members of one group member that is authorized to act on behalf of all members of the nominating stockholder group with respect to the nomination and matters related thereto, including withdrawal of the nomination.

(6)     To be timely under this paragraph (C) of Section 2.9, the Stockholder Notice must be delivered by a stockholder to the Secretary of the Corporation at the principal executive offices of the Corporation not later than the close of business on the one hundred twentieth (120 th ) day, nor earlier than the close of business on the one hundred fiftieth (150 th ) day, prior to the first anniversary of the date (as stated in the Corporation’s proxy materials) the definitive proxy statement was first sent to stockholders in connection with the preceding year’s annual meeting of stockholders (provided, however, that in the event that the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, notice by the stockholder must be so delivered not earlier than the close of business on the one hundred fiftieth (150 th ) day prior to such annual meeting and not later than the close of business on the later of the one hundred twentieth (120 th ) day prior to such annual meeting or, if the first public announcement of the date of such annual meeting is less than one hundred (100) days prior to the date of such annual meeting, the tenth (10 th ) day following the day on which public announcement of the date of such meeting is first made by the Corporation). In no event shall an adjournment, recess or postponement of an annual meeting or the public announcement thereof commence a new time period (or extend any time period) for the giving of the Stockholder Notice as described above.

(7)     An Eligible Stockholder must:

(i)    within five business days after the date of the Stockholder Notice, provide to the Corporation one or more written statements from the record holder(s) of the Required Shares and from each intermediary through which the Required Shares are or have been held, in each case during the requisite three-year holding period, specifying the number of shares that the Eligible Stockholder Owns, and has Owned continuously in compliance with this paragraph (C) of Section 2.9,

(ii)     include in the Schedule 14N filed with the SEC (A) the number of shares of Voting Stock Owned by the Eligible Stockholder and (B) a statement

 

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certifying that it Owns and has Owned the Required Shares in compliance with this paragraph (C) of Section 2.9,

(iii)     file with the SEC any solicitation or other communication by or on behalf of the Eligible Stockholder relating to the Corporation’s annual meeting of stockholders, one or more of the Corporation’s directors or director nominees or any Stockholder Nominee, regardless of whether any such filing is required under Exchange Act Regulation 14A or whether any exemption from filing is available for such solicitation or other communication under Exchange Act Regulation 14A, and

(iv)     as to any group of funds whose shares are aggregated for purposes of constituting an Eligible Stockholder, within five business days after the date of the Stockholder Notice, provide to the Corporation documentation reasonably satisfactory to the Corporation that demonstrates that the funds satisfy the requirements of the fifth sentence of paragraph (C)(2) of this Section 2.9.

The information provided pursuant to this paragraph (C)(7) of Section 2.9 shall be deemed part of the Stockholder Notice for purposes of this paragraph (C) of Section 2.9.

(8)    Within the time period and in the manner prescribed in paragraph (C)(6) of this Section 2.9 for delivery of the Stockholder Notice, a written representation and agreement of each Stockholder Nominee shall be delivered to the Secretary of the Corporation, which shall be deemed part of the Stockholder Notice for purposes of this paragraph (C) of Section 2.9 and signed by each Stockholder Nominee and representing and agreeing that such Stockholder Nominee:

(i)    consents to being named in the Corporation’s proxy statement and form of proxy as a nominee and to serving as a director if elected,

(ii)     is not and will not become a party to any agreement, arrangement, or understanding with, and has not given any commitment or assurance to, any person or entity as to how such Stockholder Nominee, if elected as a director, will act or vote on any issue or question that has not been disclosed to the Corporation, and

(iii)     is not and will not become a party to any agreement, arrangement, or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement, or indemnification in connection with candidacy or service or action as a director that has not been disclosed to the Corporation.

The Stockholder Nominee must promptly provide to the Corporation prior to the date of the annual meeting such other information as it may reasonably request. The Corporation may request such additional information as necessary to permit the Board to determine if each Stockholder Nominee satisfies the requirements of this paragraph (C) of Section 2.9.

(9)     In the event that any information or communications provided by the Eligible Stockholder or any Stockholder Nominees to the Corporation or its stockholders is

 

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not, when provided, or thereafter ceases to be, true, correct and complete in all material respects (including omitting a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading), each Eligible Stockholder or Stockholder Nominee, as the case may be, shall promptly notify the Secretary and provide the information that is required to make such information or communication true, correct, complete and not misleading; it being understood that providing any such notification shall not be deemed to cure any defect or limit the Corporation’s right to omit a Stockholder Nominee from its proxy materials as provided in this paragraph (C) of Section 2.9.

(10)     Notwithstanding anything to the contrary contained in this paragraph (C) of Section 2.9, the Corporation may omit from its proxy materials any Stockholder Nominee, and such nomination shall be disregarded and no vote on such Stockholder Nominee will occur, notwithstanding that proxies in respect of such vote may have been received by the Corporation, if:

(i)     the Eligible Stockholder or Stockholder Nominee breaches any of its respective agreements, representations, or warranties set forth in the Stockholder Notice (or otherwise submitted pursuant to this paragraph (C) of Section 2.9), any of the information in the Stockholder Notice (or otherwise submitted pursuant to this paragraph (C) of Section 2.9) was not, when provided, true, correct and complete, or the requirements of this paragraph (C) of Section 2.9 have otherwise not been met,

(ii)     the Stockholder Nominee (A) is not independent under any applicable listing standards, any applicable rules of the SEC, and any publicly disclosed standards used by the Board in determining and disclosing the independence of the Corporation’s directors, (B) does not qualify either (1) as independent under the audit committee independence requirements set forth in the rules of any stock exchange applicable to the Corporation, or (2) as a “non-employee director” under Exchange Act Rule 16b-3 and as an “outside director” for the purposes of Section 162(m) of the Internal Revenue Code (or any successor provision), (C) is or has been, within the past three years, an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, as amended, (D) is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses), has been convicted in a criminal proceeding (excluding traffic violations and other minor offenses), is a named subject of a pending civil fraud investigation or has been convicted of fraud in a civil proceeding, in each case, within the past ten (10) years, or (E) is subject to any order of the type specified in Rule 506(d) of Regulation D promulgated under the Securities Act of 1933, as amended,

(iii)     the Corporation has received a notice (whether or not subsequently withdrawn) that a stockholder intends to nominate any candidate for election to the Board pursuant to the advance notice requirements for stockholder nominees for director in paragraph (A)(2) of this Section 2.9,

(iv)     the election of the Stockholder Nominee to the Board would cause the Corporation to violate the Restated Certificate of Incorporation, these By-laws, any applicable law, rule, regulation or listing standard,

 

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(v) the Eligible Stockholder or applicable Stockholder Nominee fails to comply with its obligations pursuant to these By-laws, including but not limited to its obligations under this paragraph (C) of Section 2.9, or

(vi)    the conditions in the Restated Certificate are satisfied such that cumulative voting is available in the election of directors.

(11)     The maximum number of Stockholder Nominees submitted by all Eligible Stockholders that may be included in the Corporation’s proxy materials pursuant to this paragraph (C) of Section 2.9 shall not exceed the greater of (i) two or (ii) twenty percent (20%) of the number of directors in office as of the last day on which a Stockholder Notice may be delivered pursuant to this paragraph (C) of Section 2.9 with respect to the annual meeting, or if such amount is not a whole number, the closest whole number (rounding down) below twenty percent (20%) (such resulting number, the “Permitted Number”); provided that the Permitted Number shall be reduced by: (i) any Stockholder Nominee whose name was submitted for inclusion in the Corporation’s proxy materials pursuant to this paragraph (C) of Section 2.9 but who the Board of Directors decides to nominate as a Board nominee or whose name is withdrawn and (ii) any nominees who were previously elected to the Board as Stockholder Nominees at any of the preceding two annual meetings and who are nominated for election at such annual meeting by the Board as a Board nominee. In the event that one or more vacancies for any reason occurs after the date of the Stockholder Notice but before the annual meeting and the Board resolves to reduce the size of the Board in connection therewith, the Permitted Number shall be calculated based on the number of directors in office as so reduced. In the event that the number of Stockholder Nominees submitted by Eligible Stockholders pursuant to this paragraph (C) of Section 2.9 exceeds the Permitted Number, the Corporation shall determine which Stockholder Nominees shall be included in the Corporation’s proxy materials in accordance with the following provisions: each Eligible Stockholder will select one Stockholder Nominee for inclusion in the Corporation’s proxy materials until the Permitted Number is reached, going in order of the amount (largest to smallest) of shares of Voting Stock each Eligible Stockholder disclosed as Owned in its respective Stockholder Notice submitted to the Corporation. If the Permitted Number is not reached after each Eligible Stockholder has selected one Stockholder Nominee, this selection process will continue as many times as necessary, following the same order each time, until the Permitted Number is reached. Following such determination, if any Stockholder Nominee who satisfies the eligibility requirements in this paragraph (C) of Section 2.9 thereafter is nominated by the Board, thereafter is not included in the Corporation’s proxy materials or thereafter is not submitted for director election for any reason (including the Eligible Stockholder’s or Stockholder Nominee’s failure to comply with this paragraph (C) of Section 2.9), no other nominee or nominees shall be included in the Corporation’s proxy materials or otherwise submitted for director election in substitution thereof.

(12)     Any Stockholder Nominee who is included in the Corporation’s proxy materials for a particular annual meeting of stockholders but either (i) withdraws from or becomes ineligible or unavailable for election at the annual meeting for any reason, including for the failure to comply with any provision of these By-Laws (provided that in no event shall any such withdrawal, ineligibility or unavailability commence a new time period (or extend any time

 

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period) for the giving of a Stockholder Notice) or (ii) does not receive a number of votes cast in favor of his or her election at least equal to twenty-five percent (25%) of the shares present in person or represented by proxy and entitled to vote in the election of directors, will be ineligible to be a Stockholder Nominee pursuant to this paragraph (C) of Section 2.9 for the next two annual meetings.

(13)     The Board (and any other person or body authorized by the Board) shall have the power and authority to interpret this paragraph (C) of Section 2.9 and to make any and all determinations necessary or advisable to apply this paragraph (C) of Section 2.9 to any persons, facts or circumstances, including the power to determine (i) whether one or more stockholders or beneficial owners qualifies as an Eligible Stockholder, (ii) whether a Stockholder Notice complies with this paragraph (C) of Section 2.9 and has otherwise met the requirements of this paragraph (C) of Section 2.9, (iii) whether a Stockholder Nominee satisfies the qualifications and requirements in this paragraph (C) of Section 2.9, and (iv) whether any and all requirements of this paragraph (C) of Section 2.9 have been satisfied. Any such interpretation or determination adopted in good faith by the Board (or any other person or body authorized by the Board) shall be binding on all persons, including the Corporation and its stockholders (including any beneficial owners). Notwithstanding the foregoing provisions of this paragraph (C) of Section 2.9, unless otherwise required by law or otherwise determined by the chairman of the meeting or the Board, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual meeting of stockholders of the Corporation to present its Stockholder Nominee or Stockholder Nominees, such nomination or nominations shall be disregarded, notwithstanding that proxies in respect of the election of the Stockholder Nominee or Stockholder Nominees may have been received by the Corporation. This paragraph (C) of Section 2.9 shall be the exclusive method for stockholders to include nominees for director election in the Corporation’s proxy materials.

(D)     General . (1) Only such persons who are nominated in accordance with the procedures set forth in this Section 2.9 shall be eligible to be elected at an annual or special meeting of stockholders of the Corporation to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 2.9. Except as otherwise provided by law, the Restated Certificate of Incorporation or these By-Laws, the chairman of the meeting shall have the power and duty (a) to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 2.9 (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such stockholder’s nominee or proposal in compliance with such stockholder’s representation as required by clause (A)(2)(a)(iv) of this Section 2.9) and (b) if any proposed nomination or business was not made or proposed in compliance with this Section 2.9, to declare that such nomination shall be disregarded or that such proposed business shall not be transacted. Notwithstanding the foregoing provisions of this Section 2.9, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or business proposed pursuant to paragraph (A)(1) of this Section 2.9, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the

 

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Corporation. For purposes of this Section 2.9, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.

(2)    For purposes of this Section 2.9, (i) “public announcement” shall include disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the SEC pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder, (ii) the “close of business” shall mean 5:00 p.m. local time at the principal executive offices of the Corporation on any calendar day, and (iii) the term “affiliate” or “affiliates” shall have the meanings ascribed thereto under the rules and regulations promulgated under the Exchange Act.

(3)    Notwithstanding the foregoing provisions of this Section 2.9, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.9; provided, however, that any references in these By-Laws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the requirements applicable to nominations or proposals of any other business to be considered pursuant to Section 2.9. Nothing in this Section 2.9 shall be deemed to affect any rights (i) of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to applicable rules and regulations promulgated under the Exchange Act or (ii) of the holders of any series of Preferred Stock to elect directors pursuant to any applicable provisions of the Restated Certificate of Incorporation or these By-Laws.

2.10.    Submission of Questionnaire, Representation and Agreement. To be eligible to be a nominee for election or reelection as a director of the Corporation, a person must deliver by mail (in accordance with the time periods prescribed for delivery of notice under Section 2.9 of these By-Laws, as applicable) to the Secretary of the Corporation at the principal executive offices of the Corporation a written questionnaire with respect to the background and qualification of such person and the background of any other person or entity on whose behalf the nomination is being made (which questionnaire shall be provided by the Secretary upon written request) and a written representation and agreement (in the form provided by the Secretary upon written request) that such person (i) is not and will not become a party to (1) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or (2) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the Corporation, with such person’s fiduciary duties under applicable law, (ii) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with such person’s candidacy or service or action as a director that has not been disclosed to the Corporation, and (iii) in such person’s individual

 

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capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a director of the Corporation, and will comply with all applicable corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation, and any other Corporation policies and guidelines applicable to directors (including incumbent directors submitting the irrevocable resignation described in Section 2.6).

2.11.    The corporation shall prepare and make, at least ten (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 at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the Corporation. The list of stockholders must also be open to examination at the meeting as required by applicable law. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 2.11 or to vote in person or by proxy at any meeting of stockholders.

2.12.    The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and (for any or no reason) to recess and/or to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present (including, without limitation, rules and procedures for removal of disruptive persons from the meeting); (iii) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted for questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

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ARTICLE III

BOARD OF DIRECTORS

3.1.    The business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors. The authorized number of directors shall be determined from time to time by resolution adopted by affirmative vote of a majority of the Board of Directors.

Any director may resign at any time by giving notice in writing or by electronic transmission to the Secretary of the Corporation. Such resignation shall take effect on the date of receipt of such notice or at any later time specified therein; and the acceptance of such resignation, unless otherwise required by the terms thereof, shall not be necessary to make it effective.

3.2.    The Board of Directors may exercise all such powers of the Corporation and do all such lawful acts and things as are not by the laws of Delaware or by the Restated Certificate of Incorporation directed or required to be exercised or done by the stockholders.

3.3.    Newly created directorships resulting from any increase in the number of directors or any vacancy on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled solely by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors, or by a sole remaining director. Any director elected in accordance with the preceding sentence shall hold office for a term expiring at the next Annual Meeting of Stockholders, and in each case until such director’s successor shall have been duly elected and qualified. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.

ARTICLE IV

MEETINGS OF THE BOARD

4.1.    The first meeting of the Board of Directors after the Annual Meeting of Stockholders may be held without notice, either immediately after said meeting of stockholders and at the place where it was held, or at such other time and place, whether within or without Delaware, as shall be fixed by the Board of Directors, or by the consent of all the directors.

4.2.    Regular meetings of the Board may be held without notice at such time and place, whether within or without Delaware, as shall from time to time be determined by the Board.

4.3.    Special meetings of the Board of Directors shall be called at the request in writing of the Chairman of the Board, the Chief Executive Officer or the President or a majority of directors then in office. If the Board designates a lead director, such director shall have authority to call special meetings of the Board. All such meetings may be held at any place, whether within or without Delaware. Notice of each such meeting shall be given to each director at least forty-eight (48) hours before the meeting. Such notice shall set forth the time and place at which the meeting is to be held and the purpose or purposes thereof. No such notice of any given meeting need be given to any director who files a waiver of notice thereof with the Secretary, either before or after the meeting.

 

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4.4.    A quorum for the transaction of business at meetings of the Board of Directors shall consist of the directors entitled to cast a majority of the votes of the directors then in office. In the absence of a quorum at any duly scheduled or duly called meeting, a majority of the directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present, at which time any business may be transacted which might have been transacted at the meeting as originally scheduled. Except in cases in which the Restated Certificate of Incorporation, these By-Laws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board.

4.5.    Members of the Board, or any committee designated by the Board, may participate in a meeting thereof by means of 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 these By-Laws shall constitute presence in person at such meeting.

Unless otherwise restricted by the Restated Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken without a meeting if all members of the Board or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board or such committee in accordance with applicable law.

ARTICLE V

COMMITTEES OF THE BOARD

5.1.     General .

(A)    The Corporation hereby elects to be governed by Section 141(c)(2) of the General Corporation Law of the State of Delaware. The Board of Directors may designate one or more committees, each committee to consist of one or more directors. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee shall have and may exercise such powers as are designated in the resolution of the Board or set forth in these By-Laws to the fullest extent permitted by law.

(B)    Resignations of members of a committee shall be effective upon delivery unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events. Any member of a committee may be removed at any time, with or without cause, by a majority vote of the Board.

(C)    Regular meetings of a committee may be held without notice at such time and place as shall from time to time be determined by the committee. Special meetings of a committee shall be called at the request of the Chairman of the committee or of any two members of the committee. Notice of each special meeting of a committee shall be given by the Secretary of the Corporation or by the directors or directors calling such meeting to each member of the

 

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committee. No such notice of any meeting need be given to any member of a committee who attends the meeting or who files a waiver of notice thereof with the Secretary, either before or after the meeting.

(D)    Unless the Board of Directors otherwise provides, each committee designated by the Board may adopt, amend and repeal rules for the conduct of its business. In the absence of a provision by the Board, a provision in the rules of such committee or a provision in the By-Laws to the contrary, a majority of the entire number of members of such committee (not including any alternate members unless such alternate members are attending such meeting for members of the committee that are absent from such meeting) shall constitute a quorum for the transaction of business, and the vote of a majority of the members present at a meeting at the time of such vote if a quorum is then present shall be the act of such committee. If the Board has not designated alternate members of a committee, or if all such alternates are absent or disqualified from voting, the member or members of the committee present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may in the absence or disqualification of any member of the committee unanimously appoint another member of the Board of Directors to act at the meeting in the place of such absent or disqualified member.

(E)    Each committee may designate a chairman of such committee by majority vote of the committee’s full membership, unless designation of a chairman is otherwise specified in these By-Laws or provided by resolution of the Board of Directors.

(F)    Each committee shall keep regular minutes of proceedings, copies of which shall be made available to each member of the Board of Directors.

5.2.     Executive Committee .

The Board of Directors may designate an Executive Committee. During the intervals between meetings of the Board, the Committee shall advise and aid the officers of the Corporation in all matters concerning its interests and the management of its business, and generally perform such duties as may be directed by the Board of Directors from time to time. The Committee shall to the fullest extent permitted by law have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation while the Board is not in session, and may authorize the seal of the Corporation to be affixed to all papers which may require it.

5.3.     Audit Committee.

The Board of Directors shall designate annually an Audit Committee consisting of not less than three directors as it may from time to time determine, none of whom shall be officers or employees of the Corporation. The committee shall review with the independent accountants the Corporation’s financial statements, basic accounting and financial policies and practices, adequacy of controls, standard and special tests used in verifying the Corporation’s statements of account and in determining the soundness of the Corporation’s financial condition, and the committee shall report to the Board the results of such reviews; review the policies and practices pertaining to publication of quarterly and annual statements to assure consistency with audited results and the

 

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implementation of policies and practices recommended by the independent accountants; ensure that suitable independent audits are made of the operations and results of subsidiary corporations and affiliates; and monitor compliance with the Corporation’s code of business conduct and ethics. The committee shall have such other duties, functions and powers as the Board may from time to time prescribe.

5.4.     Compensation and Benefits Committee.

The Board of Directors shall designate annually a Compensation and Benefits Committee consisting of not less than two directors as it may from time to time determine, none of whom shall be officers or employees of the Corporation. The committee shall administer the Corporation’s executive compensation plans and programs. In addition, the committee shall consider proposals with respect to the creation of and changes to executive compensation plans and will review appropriate criteria for establishing certain performance measures under applicable Corporation plans and programs. The committee shall have such other duties, functions and powers as the Board may from time to time prescribe.

5.5.     Governance and Risk Committee.

The Board of Directors shall designate annually a Governance and Risk Committee consisting of not less than two directors as it may from time to time determine, none of whom shall be officers or employees of the Corporation. The committee shall have responsibilities relating to corporate governance and criteria for Board selection. The committee shall develop and recommend to the Board a set of corporate governance principles or guidelines applicable to the Corporation, identify individuals qualified to become members of the Board, consistent with criteria approved by the Board, select, or recommend that the Board select, the director nominees for the next annual meeting of stockholders, and consider any nominations submitted by the stockholders to the Secretary in accordance with these By-Laws, the Corporation’s corporate governance guidelines or applicable law. The committee shall have such other duties, functions and powers as the Board may from time to time prescribe.

ARTICLE VI

COMPENSATION OF DIRECTORS

6.1.    Each director shall, in consideration of his serving as a director, be paid by the Corporation such reasonable compensation as shall be fixed from time to time by resolution of the Board of Directors or any duly authorized committee, together with travel, food, lodging and other expenses incurred in attending meetings of the Board, provided that no director who is also an employee of the Corporation shall be entitled to receive any compensation for his services as a director.

6.2.    Members of committees of the Board of Directors may receive such reasonable compensation for their services as may be fixed from time to time by resolution of the Board of Directors, provided that nothing herein contained shall be construed to preclude any member of any committee from serving the Corporation in any other capacity and receiving compensation therefor.

 

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ARTICLE VII

OFFICERS

7.1.     General .

(A)    The officers of the Corporation shall consist of such of the following as the Board of Directors shall from time to time elect or appoint, or as the Chief Executive Officer may from time to time appoint pursuant to Section 7.2 of this Article VII: a Chief Executive Officer, a Chairman of the Board, a Vice Chairman of the Board, a President, a Chief Operating Officer, a Chief Financial Officer, one or more Vice Presidents (one or more of whom may be designated Executive Vice President, one or more of whom may be designated Group Vice President and one or more of whom may be designated Senior Vice President), a Secretary, a Treasurer, a Controller, a General Counsel, and a Tax Officer. The principal officers (except those who may be appointed by the Chief Executive Officer as provided in Section 7.2 of this Article VII), if determined by the Board of Directors, shall be elected each year at the first meeting of the Board of Directors after the annual meeting of the stockholders of the Corporation. Two or more offices may be held by the same person. Officers of the Corporation may simultaneously serve as officers of subsidiaries or divisions thereof. The Chairman of the Board shall be chosen by the directors from their own number and may be an officer of the Corporation as the Board may determine. The salaries of the principal officers of the Corporation shall be fixed by the Board or a committee of the Board.

(B)    The Board may appoint such other officers, assistant officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined by the Board.

(C)    Any elected or appointed officer may resign at any time upon written notice to the Chairman of the Board, the Chief Executive Officer or the Secretary of the Corporation. Such resignation shall take effect upon the date of its receipt or at such later time as may be specified therein, and unless otherwise required by the terms thereof, no acceptance of such resignation shall be necessary to make it effective.

(D)    Any elected or appointed officer may be removed, with or without cause, by the Board at any regular or special meeting of the Board, and in the case of an officer appointed pursuant to Section 7.2 of this Article VII, may be so removed by the Chief Executive Officer. Any such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation, but the election or appointment of any officer shall not itself create contractual rights.

(E)    Unless he resigns, dies or is removed prior thereto, each officer of the Corporation shall hold office until his successor has been elected or appointed and has qualified.

7.2.     Chief Executive Officer.

(A)    The Board of Directors shall designate the Chief Executive Officer of the Corporation.

 

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(B)    He shall preside at meetings of the stockholders or directors in the absence or disability of the Chairman of the Board, the Lead Director and the Vice Chairman, if any, or at their request. In such circumstances, he may exercise any of the other powers or perform any of the other duties of the Chairman of the Board.

(C)    All other officers of the Corporation shall be subordinate to the Chief Executive Officer and shall from time to time report to him as he may direct. He shall have general supervision and direction of the business of the Corporation and shall see that all orders and resolutions of the Board are carried into effect.

(D)    The Chief Executive Officer shall have authority to sign and acknowledge in the name and on behalf of the Corporation all stock certificates, contracts or other documents and instruments, except where the signing thereof shall be expressly delegated to some other officer or agent by the Board or required by law to be otherwise signed or executed and, unless otherwise provided by law or by the Board may authorize any officer, employee or agent of the corporation to sign, execute and acknowledge in his place and stead all such documents and instruments; he shall fix the compensation of officers of the Corporation, other than his own compensation, and the compensation of officers of its principal operating subsidiaries reporting directly to him unless such authority is otherwise reserved to the Board or a committee thereof; and he shall approve proposed employee compensation and benefit plans of subsidiary companies not involving the issuance or purchase of capital stock of the Corporation. He shall have the power to appoint and remove any Senior Vice President, Vice President, Controller, Secretary, Treasurer, or Tax Officer of the Corporation; provided that officers subject to Section 16 of the Exchange Act, shall be elected by the Board. He shall also have the power to appoint and remove such associate or assistant officers of the Corporation with such titles and duties as he may from time to time deem necessary or appropriate. He shall have such other powers and perform such other duties as from time to time may be assigned to him by the Board or the Executive Committee of the Board.

(E)    The Chief Executive Officer shall have such power and authority as is usual, customary and desirable to perform all the duties of the office (including, but not limited to, the approval of payments or arrangements made in connection with the Corporation’s debt, interest, tax, contractual, and regulatory obligations) necessary to, and consistent with, the businesses of the Corporation and its subsidiaries. The Chief Executive Officer (and other officers of the Corporation as delegated by the Chief Executive Officer or as authorized in these By-Laws) may delegate the foregoing authorization to other officers, employees, and agents of the Corporation by either written authorization (including powers of attorney) or otherwise, unless such authorization is expressly reserved for the Chairman of the Board, the Chief Executive Officer or other officer, as applicable.

7.3.     Chairman of the Board.

(A)    The Chairman of the Board shall preside at all meetings of the stockholders and of the directors.

 

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(B)    He shall be a member and chairman of the Executive Committee.

(C)    He shall have such other powers and perform such other duties as may be prescribed from time to time by the Board of Directors.

7.4.     Vice Chairman of the Board.

(A)    If the Board designates a Vice Chairman of the Board, he shall preside at meetings of the stockholders or directors in the absence or disability of the Chairman of the Board.

(B)    He shall have such other powers and perform such other duties as may be prescribed from time to time by the Board of Directors.

7.5.     President.

The President shall have such powers and perform such duties as may be prescribed from time to time by the Board of Directors or the Chief Executive Officer. Subject to the foregoing, the President shall have direct management responsibility for the general business and affairs of the Corporation, and over all subordinate officers, agents and employees of the Corporation, and he shall have such powers and perform such duties as may be incident to the office of president of a corporation, those duties assigned to him by other provisions of the By-Laws, and such other duties as may from time to time be assigned to him either directly or indirectly by the Board, the Chairman of the Board, or Chief Executive Officer, including the power to sign and acknowledge in the name and on behalf of the Corporation all stock certificates, deeds, mortgages, bonds, contracts or other documents and instruments except when the signing thereof shall be expressly delegated to some other officer or agent by the Board, the Chairman of the Board or the Chief Executive Officer or required by law to be otherwise signed or executed and, unless otherwise provided by law or by the Board, may delegate to any officer, employee or agent of the Corporation authority to sign, execute and acknowledge in his place and stead all such documents and instruments.

7.6.     Chief Operating Officer.

If the Board designates a Chief Operating Officer, such officer shall have such powers and perform such duties as may be prescribed from time to time by the Board of Directors or the Chief Executive Officer. Subject to the foregoing, the Chief Operating Officer shall have direct management responsibility for the general business operations of the Corporation, and he shall have such powers and perform such duties as may be incident to the office of chief operating officer of a corporation, those duties assigned to him by other provisions of the By-Laws, and such other duties as may from time to time be assigned to him either directly or indirectly by the Board, the Chairman of the Board, Chief Executive Officer or the President. Subject to delegations by the Chief Executive Officer pursuant to Section 7.2 of this Article VII, the Chief Operating Officer may sign or execute, in the name of the Corporation, all stock certificates, deeds, mortgages, bonds, contracts or other documents and instruments, except in cases where the signing or execution thereof shall be required by law or shall have been expressly delegated by the Board or these By-Laws to some other officer or agent of the Corporation.

 

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7.7.     Chief Financial Officer.

(A)    The Chief Financial Officer shall have responsibility for development and administration of the Corporation’s financial plans and all financial arrangements, its cash deposits and short-term investments, its accounting policies and its federal and state tax returns. The Chief Financial Officer shall also be responsible for the Corporation’s internal control procedures and for its relationship with the financial community. The Chief Financial Officer shall perform all the duties incident to the office of chief financial officer of a corporation, those duties assigned to him by other provisions of these By-laws and such other duties as may be assigned to him either directly or indirectly by the Board, the Chairman of the Board, the Chief Executive Officer, the President, or the Chief Operating Officer, or as may be provided by law.

(B)    He shall, when requested, counsel with and advise the other officers of the Corporation and shall perform such other duties as such officer may agree with the Chief Executive Officer or as the Board of Directors may from time to time determine.

7.8.     Executive Vice President.

If the Board designates one or more Executive Vice Presidents, such officer or officers shall have such powers and perform such duties as may be prescribed from time to time by the Board of Directors or the Chief Executive Officer and shall be vested with all the powers and authorized to perform all the duties of the Chairman of the Board, the Vice Chairman of the Board and the President in the absence or disability of all of said officers. Each Executive Vice President shall have all the powers and duties granted and delegated to each Group Vice President, Senior Vice President and Vice President by these By-Laws.

7.9.     Group Vice President.

If the Board designates one or more Group Vice Presidents, such officer or officers shall have general direction of and supervision over such operating offices of the Corporation or over such departments of the Corporation and its subsidiaries as the Board of Directors or the Chief Executive Officer may prescribe. Each Group Vice President shall have all the powers and duties granted and delegated to each Vice President (other than the Executive Vice Presidents) by these By-Laws and shall have such other powers and perform such other duties as may be prescribed from time to time by the Board of Directors or the Chief Executive Officer. In the absence or disability of the President and the Executive Vice Presidents, each Group Vice President shall be vested with all the powers and authorized to perform all the duties of said officers.

7.10.     General Counsel .

If the Board designates a General Counsel, the General Counsel shall be the principal legal officer of the Corporation. He shall have general direction of and supervision over the legal affairs of the Corporation and shall advise the Board of Directors and officers of the Corporation on all legal matters. He shall have such other powers and perform such other duties as may be prescribed from time to time by the Board of Directors or the Chief Executive Officer.

 

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7.11.     Senior Vice President .

If the Board designates one or more Senior Vice Presidents, such officer or officers shall have such powers and perform such duties as may be prescribed from time to time by the Board of Directors or the Chief Executive Officer. In the absence or disability of the President, the Executive Vice Presidents and the Group Vice Presidents, each Senior Vice President shall be vested with all the powers and authorized to perform all the duties of said officers.

7.12.     Vice President .

Each Vice President shall have such powers and perform such duties as may be prescribed from time to time by the Board of Directors or the Chief Executive Officer. In the absence or disability of the President, the Executive Vice Presidents, the Group Vice Presidents and the Senior Vice Presidents, each Vice President shall be vested with all the powers and authorized to perform all the duties of said officers.

7.13.     Secretary .

The Secretary shall attend all sessions of the Board and all meetings of the stockholders and record all votes and the minutes of all proceedings in a book to be kept for that purpose. He shall perform like duties for committees of the Board when required. He shall give, or cause to be given, notice of all meetings of the stockholders and of the Board of Directors, when notice is required by these By-Laws. He shall have custody of the seal of the Corporation, and, when authorized by the Board of Directors, or when any instrument requiring the corporate seal to be affixed shall first have been signed by the Chairman of the Board, the Chief Executive Officer, the Vice Chairman of the Board, the President or any Vice President, shall affix the seal to such instrument and shall attest the same by his signature. He shall have such other powers and perform such other duties as may be prescribed from time to time by the Board of Directors or the Chief Executive Officer.

7.14.     Assistant Secretary .

If the Board appoints one or more Assistant Secretaries, each Assistant Secretary shall be vested with all the powers and authorized to perform all the duties of the Secretary at the request of or in the absence or disability of the Secretary. The performance of any act or the execution of any instrument by an Assistant Secretary in any instance in which such performance or execution would customarily have been accomplished by the Secretary shall constitute conclusive evidence of the request, absence or disability of the Secretary. Each Assistant Secretary shall perform such other duties as may be prescribed from time to time by the Board of Directors, the Chief Executive Officer, or the Secretary.

7.15.     Treasurer .

(A)    The Treasurer shall have custody of the corporate funds and securities, and he shall keep full and accurate accounts of receipts and disbursements in books belonging to the

 

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Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation, in such depositories as may be designated by the Board of Directors.

(B)    He shall disburse the funds of the Corporation as ordered by the Board, taking proper vouchers for such disbursements, and shall render to the Chief Executive Officer and the Board of Directors, at the regular meetings of the Board, or whenever they may require it, an account of all his transactions as Treasurer and of the financial condition of the Corporation.

(C)    If required by the Board of Directors, he shall give the Corporation a bond in a sum and with one or more sureties satisfactory to the Board, for the faithful performance of the duties of his office, and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.

(D)    He shall have such other powers and perform such other duties as may be prescribed from time to time by the Board of Directors, the Chief Executive Officer or the Chief Financial Officer.

7.16.     Assistant Treasurer .

If the Board appoints one or more Assistant Treasurers, each Assistant Treasurer shall be vested with all the powers and authorized to perform all the duties of the Treasurer at the request of or in the absence or disability of the Treasurer. The performance of any act or the execution of any instrument by an Assistant Treasurer in any instance in which such performance or execution would customarily have been accomplished by the Treasurer shall constitute conclusive evidence of the request, absence or disability of the Treasurer. Each Assistant Treasurer shall perform such other duties as may be prescribed from time to time by the Board of Directors, the Chief Executive Officer, the Chief Financial Officer or the Treasurer.

7.17.     Controller .

If determined by the Board of Directors, the Controller shall be the principal accounting officer of the Corporation. He shall maintain adequate records of all assets, liabilities and transactions of the Corporation and shall be responsible for the design, installation and maintenance of accounting and cost systems and procedures throughout the Corporation. He shall have such other powers and perform such other duties as may be prescribed from time to time by the Board of Directors, the Chief Financial Officer or the Chief Executive Officer.

7.18.     Assistant Controller .

If the Board appoints one or more Assistant Controllers, each Assistant Controller shall be vested with all the powers and authorized to perform all duties of the Controller at the request of or in the absence or disability of the Controller. The performance of any act or the execution of any instrument by an Assistant Controller in any instance in which such performance or execution would customarily have been accomplished by the Controller shall constitute conclusive evidence of the request, absence or disability of the Controller. Each Assistant Controller shall perform

 

27


such other duties as may be prescribed from time to time by the Board of Directors, the Chief Executive Officer, the Chief Financial Officer or the Controller.

7.19.     Tax Officer.

If the Board appoints one or more Tax Officers, each Tax Officer shall have the authority to sign or execute on behalf of the Corporation any federal, foreign, Indian, state or local tax return, election or report, claim for refund of taxes, extension of a statute of limitation, administrative tax appeals filings and any other document relating to the Corporation’s tax responsibilities or tax positions. Each Tax Officer shall have such other powers and perform such other duties as may be prescribed from time to time by the Board of Directors, the Chief Executive Officer or the Chief Financial Officer.

7.20.     Duties of Officers May be Delegated .

In case of the absence of any officer of the Corporation, or for any other reason that the Board may deem sufficient, the Board, or the Chief Executive Officer with respect to officers appointed pursuant to Section 7.2, may delegate, for the time being, the powers or duties, or any of them, of such officer to any other officer, or to any director.

ARTICLE VIII

POWERS OF EXECUTION

8.1.    All checks and other demands for money and notes and other instruments for the payment of money shall be signed on behalf of the Corporation by such officer or officers or by such other person or persons as the Board of Directors may from time to time designate. The signature of any such officer or other person may be a facsimile if so authorized by the Board of Directors.

8.2.    All contracts, deeds and other instruments to which the seal of the Corporation is affixed shall be signed on behalf of the Corporation by the Chief Executive Officer, by the President, by any Vice President, or by such other person or persons as the Board of Directors may from time to time designate, and shall be attested by the Secretary or an Assistant Secretary.

8.3.    All other contracts, deeds and instruments shall be signed on behalf of the Corporation by the Chief Executive Officer, by the President, by any Vice President, or by such other person or persons as the Board of Directors or the Chief Executive Officer may from time to time designate.

8.4.    The Chief Executive Officer or any other officer of the Corporation authorized by the Board of Directors or by the Chief Executive Officer is authorized to vote, represent and exercise on behalf of the Corporation all rights incident to any and all shares or securities of any other corporation or entity standing in the name of the Corporation. The authority herein granted may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed by the person having such authority.

 

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ARTICLE IX

INDEMNIFICATION

9.1.     Right to Indemnification . The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, (i) is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, manager, employee or agent of another corporation or of a partnership, limited liability company, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans (a “Covered Person”) or (ii) is or was an employee of the Corporation or, while an employee of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, manager, employee or agent of another corporation or of a partnership, limited liability company, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans (a “Covered Employee”), against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person or Covered Employee. Notwithstanding the preceding sentence, except as otherwise provided in Section 9.3, the Corporation shall be required to indemnify a Covered Person or a Covered Employee in connection with a proceeding (or part thereof) commenced by such Covered Person or Covered Employee only if the commencement of such proceeding (or part thereof) by the Covered Person or Covered Employee was authorized in the specific case by the Board of Directors.

9.2.     Prepayment of Expenses . The Corporation shall to the fullest extent not prohibited by applicable law advance the payment of expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article IX or otherwise. The Corporation may, in its discretion, advance the payment of expenses (including attorneys’ fees) incurred by a Covered Employee in defending any proceeding in advance of its final disposition, provided however, that the Corporation may in its discretion require such payment of expenses in advance of the final disposition of the proceeding be made only upon receipt of an undertaking (on such terms of the Corporation may require) by the Covered Employee to repay all amounts advanced if it should be ultimately determined that the Covered Employee is not entitled to be indemnified under this Article IX or otherwise and/or upon such other terms and conditions, if any, as the Corporation deems appropriate.

9.3.     Claims . If a claim for indemnification following the final disposition of such proceeding by a Covered Person or advancement of expenses by a Covered Person under this Article IX is not paid in full within thirty (30) days after a written claim therefor by the Covered Person or, in the case of advancement of expenses, a statement or statements requesting such amounts to be advanced, has been received by the Corporation, the Covered Person may thereupon (but not before) file suit to recover the unpaid amount of such claim and, if successful in whole or

 

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in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

9.4.     Nonexclusivity of Rights . The rights conferred on any Covered Person or Covered Employee by this Article IX shall not be exclusive of any other rights which such Covered Person or Covered Employee may have or hereafter acquire under any statute, provision of the Restated Certificate of Incorporation, these By-Laws, agreement, vote of stockholders or disinterested directors or otherwise.

9.5.     Other Sources . The Corporation’s obligation, if any, to indemnify any Covered Person or Covered Employee or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another Corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person or Covered Employee may collect as indemnification or such Covered Person may collect as advancement of expenses from such other Corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

9.6.     Amendment or Repeal . Any repeal or modification of the foregoing provisions of this Article IX shall not adversely affect any right or protection hereunder of any Covered Person or Covered Employee in respect of any act or omission occurring prior to the time of such repeal or modification.

9.7.     Other Indemnification and Prepayment of Expenses . This Article IX shall not limit the right of the Corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons or Covered Employees when and as authorized by appropriate corporate action.

ARTICLE X

STOCK CERTIFICATES AND TRANSFER THEREOF

10.1.     Certificates of Stock; Uncertificated Shares .

Every holder of stock in the corporation shall be entitled to have a certificate; provided that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Every holder of shares of the Corporation represented by certificates shall be entitled to a certificate, signed by or in the name of the corporation by the Chairman of the Board, the Vice Chairman of the Board, the President, or any Vice President and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the corporation, certifying the number of shares, and the class and series thereof, owned by him in the Corporation. Any and all of the signatures on the certificate may be a facsimile. 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

 

30


same effect as if he were such officer, transfer agent or registrar at the date of issue. The Board or the Chief Executive Officer shall determine the form of stock certificate of the Corporation.

10.2.     Transfers of Stock .

Transfer of shares of the capital stock of the Corporation shall be made only on the books (whether physically or electronically) of the Corporation by the holder thereof, or by his attorney duly authorized, and on surrender of the certificate or certificates for such shares duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer (or, with respect to uncertificated shares, by delivery of duly executed instructions or any other manner permitted by applicable law); provided, however, that such succession, assignment, or transfer is not prohibited by the Restated Certificate of Incorporation, these By-Laws, applicable law, or contract. A person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and the Corporation shall not, except as expressly required by statute, be bound to recognize any equitable or other claim to, or interest in, such shares on the part of any other person whether or not it shall have express or other notice thereof.

10.3.     Transfer Agents and Registrars.

The Board, the Chairman of the Board, or the Chief Executive Officer, as appropriate, may appoint responsible banks or trust companies from time to time to act as transfer agents and registrars of the stock of the Corporation, as may be required by and in accordance with applicable laws, rules and regulations. Except as otherwise provided by the Board, the Chairman of the Board, or the Chief Executive Officer, as appropriate, in respect of temporary certificates, no certificates for shares of capital stock of the Corporation shall be valid unless countersigned by a transfer agent and registered by one of such registrars.

10.4.     Additional Regulations.

The Board, the Chairman of the Board, or the Chief Executive Officer, as appropriate, may make such additional rules and regulations as they may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation.

10.5.     Lost, Stolen or Destroyed Certificates.

The Board, the Chairman of the Board, or the Chief Executive Officer may provide for the issuance of new certificates or uncertificated shares of stock to replace certificates of stock lost, stolen or destroyed, or alleged to be lost, stolen or destroyed, upon such terms and in accordance with such procedures as the Board or the Chief Executive Officer shall deem proper and prescribe.

10.6.     Registered Stockholders .

The Corporation shall be entitled to treat the holder of record of any share or shares of capital stock as the holder in fact thereof, and accordingly shall not be bound to recognize any

 

31


equitable or other claim to or interest in such share on the part of any other person, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of Delaware.

ARTICLE XI

CHECKS, DRAFTS, BANK ACCOUNTS, ETC.

11.1.     Checks, Drafts, Etc.; Loans.

All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, agent or agents of the Corporation and in such manner as shall, from time to time, be determined by resolution of the Board or the Executive Committee. No loans shall be contracted on behalf of the Corporation unless authorized by the Board or the Executive Committee. Such authority may be general or confined to specific circumstances. No loans shall be made by the Corporation to any officer unless specifically approved by the Board, and such loan would not violate any applicable laws.

11.2.     Deposits.

All funds of the Corporation shall be deposited, from time to time, to the credit of the Corporation in such banks, trust companies or other depositories as the Board, the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer or the Treasurer may select, or as may be selected by such other officer or officers, agent or agents of the Corporation to whom such power may, from time to time, be delegated by the Board; and for the purpose of such deposit, the Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, any Vice President, the Treasurer or any Assistant Treasurer, or any other officer or agent to whom such power may be delegated by the Board, may endorse, assign and deliver checks, drafts and other order for the payment of money which are payable to the order of the Corporation.

11.3.     Safe Deposit Boxes .

The Corporation may rent such safe deposit boxes, and may deposit therein such securities, documents and articles, as the Board of Directors, the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer or the Treasurer may designate from time to time. Access to such safe deposit boxes shall be granted only (i) to any two of the following officers of the Corporation attending together: Chief Executive Officer, President, a Vice President, Secretary, Treasurer and Controller, or (ii) to any one of the foregoing officers and either an Assistant Secretary or an Assistant Treasurer, attending together.

11.4.     Custodian Accounts .

Any or all of the securities owned by this Corporation may be deposited with such custodian or custodians as the Board of Directors may designate from time to time. The custodian shall not be authorized to negotiate such securities or to take any other action with respect thereto except upon written directions signed (i) by any two of the following officers of the Corporation:

 

32


Chief Executive Officer, President, a Vice President, Secretary, Treasurer and Controller, or (ii) by any one of the foregoing officers and either an Assistant Secretary or an Assistant Treasurer.

ARTICLE XII

MISCELLANEOUS

12.1.     Date for Determining Stockholders of Record .

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, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or 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 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, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; and (2) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) 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; and (2) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto. 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 may fix a new record date for the adjourned meeting.

12.2.     Dividends .

(A)    Dividends upon the capital stock of the Corporation may be declared by the Board of Directors as provided by the laws of Delaware and the Restated Certificate of Incorporation.

(B)    Before payment of any dividend or making any distribution of profits, there may be set aside out of the surplus or net profits of the Corporation such sum or sums as the directors from time to time, in their absolute discretion, deem proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purposes as the directors shall deem conducive to the interests of the Corporation.

(C)    Dividends may be paid in cash, in property, or in shares of the capital stock of the Corporation.

 

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12.3.     Seal .

The Corporation may have a corporate seal which shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware.” The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.

12.4.     Notices .

(A)    To Directors. Except as otherwise provided herein or permitted by applicable law, notices to directors may be given in person, by telephone, by personal delivery, mail, telegram, express courier service (including, without limitation, FedEx or UPS), facsimile transmission (directed to the facsimile transmission number at which the director has consented to receive notice), electronic mail (directed to the electronic mail address at which the director has consented to receive notice), or other form of electronic transmission pursuant to which the director has consented to receive notice .

(B)    To Stockholders. Notice to stockholders may be given by personal delivery, mail, or, with the consent of the stockholder entitled to receive notice, by facsimile or other means of electronic transmission. If mailed, such notice shall be delivered by postage prepaid envelope directed to each stockholder at such stockholder’s address as it appears in the records of the Corporation and shall be deemed given when deposited in the United States mail. Notice given by electronic transmission pursuant to this subsection shall be deemed given: (1) if by facsimile telecommunication, when directed to a facsimile telecommunication number at which the stockholder has consented to receive notice; (2) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (3) if by posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (4) if by any other form of electronic transmission, when directed to the stockholder. An affidavit of the Secretary or an Assistant Secretary or of the transfer agent or other agent of the Corporation that the notice has been given by personal delivery, by mail, or by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

12.5.     Amendments to By-Laws .

Except as otherwise provided by law, these By-Laws or the Restated Certificate of Incorporation, these By-Laws may be altered, amended or repealed (i) at any regular or special meeting of the stockholders by the affirmative vote of the holders of a majority in voting power of the shares of capital stock of the Corporation issued and outstanding and entitled to vote thereat or (ii) by affirmative vote of a majority of the directors.

12.6.     Fiscal Year .

The fiscal year of the Corporation shall be the calendar year.

 

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12.7.     Construction of Words .

All references and uses herein of the masculine pronouns “he”, “his” or “chairman” shall have equal applicability to and shall also mean their feminine counterpart pronouns, such as “she”, “her” or “chairwoman.”

 

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Exhibit 10.1

ANADARKO PETROLEUM CORPORATION 1201 LAKE ROBBINS DRIVE, THE WOODLANDS, TEXAS 77380

P.O. BOX 1330 HOUSTON, TEXAS 77251-1330 U.S.A. PH. (832)636-1000

 

 

LOGO

PERSONAL AND CONFIDENTIAL

[DATE]

Dear :

The Compensation and Benefits Committee of the Board of Directors of Anadarko Petroleum Corporation (the “Company”) has made an Award of Nonqualified Options (“Options”) to you under the Company’s 2012 Omnibus Incentive Compensation Plan, as may be amended from time to time (the “Plan”). This Options Award is subject to all terms and conditions of the Plan, the summary of the Plan (the “Plan Summary”) and the provisions of this Award Agreement. Unless defined herein, capitalized terms shall have the meaning assigned to them under the Plan. The Plan and Plan Summary are available on the Anadarko intranet website at the following address: [internal website address] .

Effective [Grant Date] (“Grant Date”), you have been granted Options to buy shares of Common Stock (“Shares”) at $ per Share. Provided you remain employed by the Company until [●], [●] of this Award will vest on [●] (collectively, the “Vesting Schedule”). All unexercised Options shall expire seven years from Grant Date, or on [date] .

Upon vesting, the Options may be exercised in whole or in part by notifying the Company’s Stock Plan Administrator or Corporate Secretary at the Company’s corporate headquarters. Such notice shall be in the form specified by the Company. Payments of all amounts due (e.g., Purchase Price and applicable withholding taxes) shall be made by check payable to the Company, unless the Company has provided that such amounts may be satisfied in the following manner: (i) all or a portion of the Purchase Price may be paid by delivery of Shares of Common Stock having an aggregate Fair Market Value (valued as of the date of exercise) that is equal to the amount of cash that would otherwise be required; or (ii) you may pay the Purchase Price by authorizing a third party to sell Shares (or a sufficient portion of the Shares) acquired upon exercise of the Options and remit to the Company a sufficient portion of the sale proceeds to pay the entire Purchase Price and any tax withholding resulting from such exercise. No Shares shall be issued or delivered until full payment of the Purchase Price and applicable withholding taxes, if any, have been made.

Unexercised Options shall expire and be forfeited (without value) to the Company in the event of your termination of employment, unless otherwise provided below:


[●]

For purposes of this Award Agreement, you shall be considered to be in the employment of the Company as long as you remain an employee of either the Company, a Subsidiary (determined without regard to whether the Plan Administrator has designated the entity as a Subsidiary for purposes of the Plan), or a corporation or a parent or subsidiary of such corporation assuming or substituting new options for the Options. Without limiting the scope of the preceding sentence, it is expressly provided that you shall be considered to have terminated employment with the Company at the time of the termination of the “Subsidiary” status under the Plan of the entity or other organization that employs you. Any question as to whether and when there has been a termination of such employment, and the cause of such termination, shall be determined by the Plan Administrator and its determination shall be final.

Except as provided in the Plan, the Options granted hereunder are not transferable except by will or the laws of descent and distribution. Options are exercisable, during your lifetime, only by you. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of the Options, or of any right or privilege conferred hereby, contrary to the provisions hereof, or upon the levy of any attachment or similar process upon the Options or any right or privilege conferred hereby, the Options and the right and privilege conferred hereby shall immediately become null and void.

You shall have no rights as a stockholder with respect to any Shares subject to the Options prior to the date such Shares are exercised and issued to you.

If the Company is required to prepare an accounting restatement due to the material noncompliance of the Company, as a result of misconduct, with any financial reporting requirement under the securities laws, and if you knowingly engaged in the misconduct, were grossly negligent with respect to such misconduct, or knowingly or grossly negligently failed to prevent the misconduct (whether or not you are one of the individuals subject to automatic forfeiture under Section 304 of the Sarbanes-Oxley Act of 2002), the Plan Administrator may determine that you shall reimburse the Company the amount of any payment in settlement of an Award earned or accrued during the twelve-month period following the first public issuance or filing with the United States Securities and Exchange Commission (whichever first occurred) of the financial document embodying such financial reporting requirement.

Notwithstanding anything in this Award Agreement or any other agreement between you and the Company to the contrary, including, without limitation, any provisions that prevent the Company from unilaterally amending this Award Agreement, you acknowledge that the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”) has the effect of requiring certain officers of the Company to repay the Company, and for the Company to recoup from such officers, erroneously awarded amounts of incentive-based compensation. If the Act, any rules or regulations promulgated thereunder by the Securities and Exchange Commission or any similar federal or state law requires the Company to recoup any erroneously awarded incentive-based compensation (including stock options and any other equity-based awards) that the Company has paid or granted to you, you hereby agree, even if you have terminated your employment with the Company, to promptly repay such erroneously awarded incentive compensation to the Company upon its written request. This obligation shall survive the termination of this Award Agreement.

 

2


After your employment relationship with the Company terminates for any reason, you acknowledge and agree, by accepting the Award Agreement, that you remain subject to the following obligations (“Post-Termination Obligations”), which serve to align your interests with the Company’s long-term business interests. The following Post-Termination Obligations are reasonably related to the protection of such business interests, including the preservation of the Company’s goodwill and the protection of the confidential information that you have obtained and will obtain in the course of your future employment with the Company.

a. Non-Disclosure. You will comply with the obligations contained in the Anadarko Code of Business Conduct and Ethics that continue after termination of employment to not disclose or utilize certain confidential information of the Company and its affiliates as specified therein. As an officer of the Company, the law imposes upon you a duty to safeguard and protect confidential information of the Company and its affiliates. Except as expressly permitted by this Award Agreement and without limiting the foregoing, you shall not use for your own benefit or the benefit of any person or entity (other than the Company and its affiliates), or disclose to any person or entity (other than the Company and its affiliates), any information relating to confidential information of the Company or its affiliates made, developed or acquired by or disclosed to you, individually or in conjunction with others, during your employment with the Company or its affiliates (whether during business hours or otherwise and whether on the Company’s premises or otherwise). The non-disclosure requirements set forth in this paragraph (a) are subject to the provisions of paragraph (e) (“Disclosures”) below.

b. Non-Disparagement. For a term of one (1) year beginning on the last day of your employment with the Company, you shall make no disparaging remarks regarding or relating to Anadarko, its affiliates, or any employee or director of Anadarko or its affiliates. The non-disparagement requirements set forth in this paragraph (b) are subject to the provisions of paragraph (e) (“Disclosures”) below.

c. Non-Solicitation. For a term of one (1) year beginning on the last day of your employment with the Company, you will not, directly or indirectly, solicit, or otherwise attempt to induce, any employee of the Company or any of its affiliates to terminate his or her employment with the Company or such affiliates, or hire or assist in the hiring of any such employee by any person, association, or entity not affiliated with the Company.

d. Remedies. Should you violate any Post-Termination Obligation, you will not thereafter be entitled to exercise any of the Options that have not yet been exercised (whether or not vested) and such Options shall be forfeited (without value) to the Company immediately as of the date that you violate such Post-Termination Obligation. If your violation of any Post-Termination Obligation is not discovered until after any such Options have been exercised, the Company may require you to return to it all Shares that were the subject of such exercise, or the monetary value of such Shares. Notwithstanding the foregoing, money damages would not be a sufficient remedy for any breach of a Post-Termination Obligation by you. The Company shall be entitled as a matter of right to specific performance of the Post-Termination Obligations, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Award Agreement, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by you or others acting on your

 

3


behalf, without any showing of irreparable harm and without any showing that the Company does not have adequate remedy at law. The remedies specified herein shall not be construed as limiting the remedies available to the Company and shall be in addition to all other remedies available to the Company at law and in equity. If any term, provision, covenant or condition of the Post-Termination Obligations is held by a court of competent jurisdiction to be illegal, invalid, unenforceable, or void, and not correctable through modification, then such provision, covenant, or condition (or portion thereof) may be severed and the validity and enforceability of the remainder of this Award Agreement shall not in any way be affected, impaired or invalidated.

e. Disclosures. Nothing in this Award Agreement will prevent you from making disparaging remarks or disclosing Company confidential and proprietary information when compelled to do so by law or when such communications are intended to comply with any federal or state whistleblower statute including, but not limited to, information provided in a manner described in Section 21F(h)(1)(A) of the Securities Exchange Act of 1934, as amended, 15 U.S.C. 78u-6(h)(1)(A). Nothing in this Award Agreement will prevent you from: (i) making a good faith report of possible violations of applicable law to any governmental agency or entity or (ii) making disclosures that are protected under the whistleblower provisions of applicable law. For the avoidance of doubt, nothing herein shall prevent you from making a disclosure of a trade secret that: (A) is made (1) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney; and (2) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Further, an individual who files a lawsuit for retaliation by an employer of reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (x) files any document containing the trade secret under seal and (y) does not disclose the trade secret, except pursuant to court order.

Please establish a Beneficiary Designation for your Long-Term Incentive Equity Awards online at [internal website address] or by contacting the Anadarko Benefits Center at 1-866-472-xxxx, option 1 and then option 1 again. You may update your designation anytime.

Once Options have been exercised and Shares have been delivered to you, you are free to sell, gift or otherwise dispose of such Shares; provided that you comply with the applicable restrictions under the Company’s Insider Trading Policy (including the receipt of pre-clearance) and the applicable stock ownership requirements.

If you have any questions about this Award Agreement, please call me at 832-636-xxxx.

Sincerely,

 

4

Exhibit 10.2

ANADARKO PETROLEUM CORPORATION 1201 LAKE ROBBINS DRIVE, THE WOODLANDS, TEXAS 77380

P.O. BOX 1330 HOUSTON, TEXAS 77251-1330 U.S.A. PH. (832)636-1000

 

LOGO

PERSONAL AND CONFIDENTIAL

[DATE]

Dear :

The Compensation and Benefits Committee of the Board of Directors of Anadarko Petroleum Corporation (the “Company”) has made an Award of Restricted Stock Units (“RSUs”) to you under the Company’s 2012 Omnibus Incentive Compensation Plan, as may be amended from time to time (the “Plan”). This RSU Award is subject to all terms and conditions of the Plan, the summary of the Plan (the “Plan Summary”) and the provisions of this Award Agreement. Unless defined herein, capitalized terms shall have the meaning assigned to them under the Plan. The Plan and Plan Summary are available on the Anadarko intranet website at the following address: [internal website address].

Effective [Grant Date] (the “Grant Date”), you have been granted an Award of RSUs, which vest over a period of time. Provided you remain employed by the Employer until such dates, [●] of the RSUs will vest on [●] (each considered a “Vesting Period”) (collectively, the “Vesting Schedule”).

At the end of each Vesting Period, unless deferred, the number of RSUs that vest shall be converted into shares of unrestricted Common Stock and such unrestricted shares, less applicable payroll taxes withheld in the form of shares, shall be delivered to you within 30 days of the last day of the Vesting Period. Upon receipt, you are free to sell, gift or otherwise dispose of such shares; provided that you comply with the applicable restrictions under the Company’s Insider Trading Policy (including the receipt of pre-clearance) and the applicable stock ownership requirements.

Dividend equivalents (as provided in Section 11.4 of the Plan) with respect to the RSUs shall be accrued and reinvested in additional shares of Common Stock and paid, less applicable withholding taxes, at such time as the RSUs to which they relate vest and settle. The RSUs do


not have voting rights. They do, however, count toward any applicable stock ownership requirements as set forth in the Company’s Corporate Governance Guidelines.

You may be allowed to make an election to defer your entire RSU Award on a separate form provided by Human Resources. All deferral elections and distributions must be made in compliance with Section 409A.

All unvested RSUs and unpaid RSU dividend equivalents will be immediately forfeited if you incur a “separation from service” (within the meaning of such term set forth in Section 409A under such definitions and procedures as established by the Company in accordance with Section 409A) due to [●].

***

RSUs and related RSU dividend equivalents that vest in accordance with the [●] preceding paragraphs shall be converted into shares of unrestricted Common Stock and such unrestricted shares, less applicable payroll taxes withheld in the form of shares, shall be delivered to you at the time specified above. However, if any taxes under the Federal Insurance Contributions Act are first due with respect to RSUs and related dividend equivalents prior to the time of vesting provided in the preceding provisions of this Award Agreement, then you will be required to deliver to the Company at the time specified by the Company such amount of money as the Company may require to satisfy its minimum withholding obligation under applicable tax laws and regulations.

Your RSUs are subject to several restrictions, including that such RSUs may not be transferred, sold, assigned, pledged, exchanged, hypothecated or otherwise transferred or disposed of.

If the Company is required to prepare an accounting restatement due to the material noncompliance of the Company, as a result of misconduct, with any financial reporting requirement under the securities laws, and if you knowingly engaged in the misconduct, were grossly negligent with respect to such misconduct, or knowingly or grossly negligently failed to prevent the misconduct (whether or not you are one of the individuals subject to automatic forfeiture under Section 304 of the Sarbanes-Oxley Act of 2002), the Plan Administrator may determine that you shall reimburse the Company the amount of any payment in settlement of an Award earned or accrued during the twelve-month period following the first public issuance or filing with the United States Securities and Exchange Commission (whichever first occurred) of the financial document embodying such financial reporting requirement.


Notwithstanding anything in this Award Agreement or any other agreement between you and the Company to the contrary, including, without limitation, any provisions that prevent the Company from unilaterally amending this Award Agreement, you agree by accepting this Award that the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”) has the effect of requiring certain officers of the Company to repay the Company, and for the Company to recoup from such officers, erroneously awarded amounts of incentive-based compensation. If the Act, any rules or regulations promulgated thereunder by the Securities and Exchange Commission or any similar federal or state law requires the Company to recoup any erroneously awarded incentive-based compensation (including stock options and any other equity-based awards) that the Company has paid or granted to you, you hereby agree, even if you have terminated your employment with the Company, to promptly repay such erroneously awarded incentive compensation to the Company upon its written request. This obligation shall survive the termination of this Award Agreement.

After your employment relationship with the Company terminates for any reason, you acknowledge and agree, by accepting the Award Agreement, that you remain subject to the following obligations (“Post-Termination Obligations”), which serve to align your interests with the Company’s long-term business interests. The following Post-Termination Obligations are reasonably related to the protection of such business interests, including the preservation of the Company’s goodwill and the protection of the confidential information that you have obtained and will obtain in the course of your future employment with the Company.

a.      Non-Disclosure . You will comply with the obligations contained in the Anadarko Code of Business Conduct and Ethics that continue after termination of employment to not disclose or utilize certain confidential information of the Company and its affiliates as specified therein. As an officer of the Company, the law imposes upon you a duty to safeguard and protect confidential information of the Company and its affiliates. Except as expressly permitted by this Award Agreement and without limiting the foregoing, you shall not use for your own benefit or the benefit of any person or entity (other than the Company and its affiliates), or disclose to any person or entity (other than the Company and its affiliates), any information relating to confidential information of the Company or its affiliates made, developed or acquired by or disclosed to you, individually or in conjunction with others, during your employment with the Company or its affiliates (whether during business hours or otherwise and whether on the Company’s premises or otherwise). The non-disclosure requirements set forth in this paragraph (a) are subject to the provisions of paragraph (e) (“Disclosures”) below.


b.     Non-Disparagement . For a term of one (1) year beginning on the last day of your employment with the Company, you shall make no disparaging remarks regarding or relating to Anadarko, its affiliates, or any employee or director of Anadarko or its affiliates. The non-disparagement requirements set forth in this paragraph (b) are subject to the provisions of paragraph (e) (“Disclosures”) below.

c.     Non-Solicitation . For a term of one (1) year beginning on the last day of your employment with the Company, you will not, directly or indirectly, solicit, or otherwise attempt to induce, any employee of the Company or any of its affiliates to terminate his or her employment with the Company or such affiliates, or hire or assist in the hiring of any such employee by any person, association, or entity not affiliated with the Company.

d.     Remedies . Should you violate any Post-Termination Obligation, you will not thereafter be entitled to payment with respect to any of the Awards subject to this Award Agreement that have not yet vested, and such Awards shall be forfeited (without value) to the Company immediately as of the date that you violate such Post-Termination Obligation. If your violation of any Post-Termination Obligation is not discovered until after any such Award has vested and been conveyed to you, the Company may require you to return to it all Shares that were the subject of such Award (determined prior to the application of any applicable tax withholding), or the monetary value of such Shares. Notwithstanding the foregoing, money damages would not be a sufficient remedy for any breach of a Post-Termination Obligation by you. The Company shall be entitled as a matter of right to specific performance of the Post-Termination Obligations, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Award Agreement, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by you or others acting on your behalf, without any showing of irreparable harm and without any showing that the Company does not have adequate remedy at law. The remedies specified herein shall not be construed as limiting the remedies available to the Company and shall be in addition to all other remedies available to the Company at law and in equity. If any term, provision, covenant or condition of the Post-Termination Obligations is held by a court of competent jurisdiction to be illegal, invalid, unenforceable, or void, and not correctable through modification, then such provision, covenant, or condition (or portion thereof) may be severed and the validity and enforceability of the remainder of this Award Agreement shall not in any way be affected, impaired or invalidated.


e.     Disclosures . Nothing in this Award Agreement will prevent you from making disparaging remarks or disclosing Company confidential and proprietary information when compelled to do so by law or when such communications are intended to comply with any federal or state whistleblower statute including, but not limited to, information provided in a manner described in Section 21F(h)(1)(A) of the Securities Exchange Act of 1934, as amended, 15 U.S.C. 78u-6(h)(1)(A). Nothing in this Award Agreement will prevent you from: (i) making a good faith report of possible violations of applicable law to any governmental agency or entity or (ii) making disclosures that are protected under the whistleblower provisions of applicable law. For the avoidance of doubt, nothing herein shall prevent you from making a disclosure of a trade secret that: (A) is made (1) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney; and (2) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Further, an individual who files a lawsuit for retaliation by an employer of reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (X) files any document containing the trade secret under seal and (Y) does not disclose the trade secret, except pursuant to court order.

Please establish a Beneficiary Designation for your Long-Term Incentive Equity Awards online at [internal website address] or by contacting the Anadarko Benefits Center at 1-866-472-xxxx, option 1 and then option 1 again. You may update your designation anytime.

If you have any questions about this Award Agreement, please call me at 832-636-xxxx.

Sincerely,

Exhibit 10.3

ANADARKO PETROLEUM CORPORATION 1201 LAKE ROBBINS DRIVE, THE WOODLANDS, TEXAS 77380

P.O. BOX 1330 HOUSTON, TEXAS 77251-1330 U.S.A. PH. (832)636-1000

 

LOGO

PERSONAL AND CONFIDENTIAL

[DATE]

Dear :

The Compensation and Benefits Committee (the “Committee”) of the Board of Directors of Anadarko Petroleum Corporation (the “Company”) has made an Award of Performance Units (“PUs”) to you under the Anadarko Petroleum Corporation 2012 Omnibus Incentive Compensation Plan, as may be amended from time to time (the “Plan”). This PU Award is subject to all terms and conditions of the Plan, the summary of the Plan (the “Plan Summary”) and the provisions of this Award Agreement. Unless defined herein, capitalized terms shall have the meaning assigned to them under the Plan. The Plan and Plan Summary are available on the Anadarko intranet website at the following address: [internal website address] .

Effective [Grant Date] (“Grant Date”), you have been awarded PUs as your target (“Target”). The value of these PUs, if any, will be dependent upon the Company’s relative total stockholder return (“TSR”) over the specified [●] performance period that begins [date] and ends [date] (the “Performance Period”). At [●], your Target will vest. The maximum number of PUs that you can earn during the Performance Period will be calculated as follows { x 200%}, with actual payout based on the Company’s TSR ranking as described below.

Each PU represents the value of one share of the Company’s Common Stock. The payout of PUs is contingent upon the Company’s TSR ranking relative to a predetermined peer group during the Performance Period. The TSR measure provides an external comparison of the Company’s performance against a peer group of companies and will be calculated as follows:

Average Closing Stock Price for the last 30 trading days of the Performance Period

Minus

Average Closing Stock Price for the 30 trading days preceding the beginning of the Performance Period

Plus

Dividends paid per share over the Performance Period (based on ex-dividend date)


Total Above Divided By

Average Closing Stock Price for the 30 trading days preceding the beginning of the Performance Period

The actual number of PUs you will earn for the Performance Period is based upon the Company’s relative TSR ranking as follows:

For example, if you were awarded 1,000 target PUs and the Company’s relative ranking for the Performance Period is 3rd, you will receive 1,640 PUs (1,000 x 164%) at [●] (subject to the other terms and conditions of this Award Agreement).

The peer group for the Performance Period includes Apache Corporation, Chesapeake Energy Corporation, Chevron Corporation, ConocoPhillips, Devon Energy Corporation, EOG Resources, Inc., Hess Corporation, Marathon Oil Corporation, Noble Energy, Inc., Occidental Petroleum Corporation and Pioneer Natural Resources Company. If, during the Performance Period, any peer company undergoes a change in corporate capitalization or a corporate transaction (including, but not limited to, a going private transaction, bankruptcy, liquidation, merger, consolidation, etc.), then the Committee shall undertake an evaluation to determine whether such peer company will be replaced with a different peer company (any such replacement company shall be identified pursuant to the rules established by the Committee with respect to, and in no event after, the first 90 days of the Performance Period). The Committee has designated Southwestern Energy, Inc.; Cabot Oil and Gas Corporation; Concho Resources, Inc.; and Cimarex Energy as replacement companies, in this respective order.

After the end of the Performance Period, the value attributed to the PUs that are earned on such date shall be calculated by multiplying the number of PUs earned by the Fair Market Value of the Company’s Common Stock on the day the Committee certifies the performance results and approves the payouts. This value shall be reduced by the applicable payroll taxes as a result of the vesting of the PUs earned, and the resulting amount shall then be paid to you in cash within 60 days after the end of the Performance Period (unless subject to a properly executed deferral election).

Dividend equivalents (as described in Section 9.5 of the Plan) shall not be paid with respect to the PUs (subject to the provisions below regarding payouts following the occurrence of a Change of Control). The PUs do not have voting rights and the PUs do not count toward any applicable stock ownership guidelines.

You may be allowed to make an election to defer your entire PU Award on a separate form provided by Human Resources. All deferral elections and distributions must be made in compliance with Section 409A.

If (i) you incur a “separation from service” (within the meaning of such term set forth in Section 409A under such definitions and procedures as established by the Company in accordance with Section 409A) due to [●], or (ii) you incur a separation from service due to [●], then, in each case, all unvested PUs will be immediately forfeited as of the date of your separation from service.

 

2


***

Notwithstanding the preceding provisions of this Award Agreement, the following provisions shall apply in the event a Change of Control occurs prior to the end of the Performance Period and while your PUs remain outstanding:

 

  (i)

The Company’s TSR ranking relative to the peer group shall be determined as if the date upon which the Change of Control occurs (the “Change of Control Date”) is the last day of the Performance Period, and a preliminary calculation of the value of the earned PUs for the Performance Period will be made as of such date (the “Preliminary PU Amount”), which amount will be (A) equal to your Target multiplied by the applicable percentage under the “Payout as % of Target” column of the table above based on the Company’s relative TSR ranking for the Performance Period multiplied by the Fair Market Value of the Company’s Common Stock as of the first trading day immediately preceding the Change of Control Date and (B) solely in the event of [●] (but not in the event of [●]) on or before the Change of Control Date, prorated based on the number of months you worked during the Performance Period (determined without regard to the Change of Control);

 

  (ii)

On the Change of Control Date, your PUs that are outstanding on such date shall be converted into restricted equity units in respect of the common equity security of the Surviving Company (as hereinafter defined), the number of which shall be determined by dividing the Preliminary PU Amount by the fair market value of one such common equity security as of the first business day immediately prior to the Change of Control Date (as determined in good faith by the Committee which, in the case of a publicly-traded security, shall be based on the closing price of such security on the principal exchange upon which it is traded as of the applicable date);

 

  (iii)

Each such restricted equity unit shall, from and after the Change of Control Date, be subject to equitable adjustment by the board of directors (or an authorized committee thereof) of the Surviving Company as if such unit had been granted under the Plan, and such restricted equity units shall be credited with dividend equivalents (in a manner similar to that provided in Section 11.4 of the Plan), which dividend equivalents shall be accrued and deemed reinvested in additional common equity securities of the Surviving Company and paid, less applicable taxes, at such time as the restricted equity units to which they relate vest and settle;

 

  (iv)

Subject to the provisions of clause (v) below, (A) each such restricted equity unit shall vest and be earned on [●] (determined without regard to the occurrence of the Change of Control) and the payment amount with respect thereto shall be based on the fair market value of the common equity security of the Surviving Company as of [●] (determined without regard to the occurrence of the Change of Control) and (B) the payment amount, less applicable withholding taxes, shall be paid to

 

3


 

you in cash within 10 days after [●] (determined without regard to the occurrence of the Change of Control); and

 

  (v)

Each such restricted equity unit (and the related dividend equivalents) shall be subject to the same forfeiture, time of payment and, in the event of [●] (but not in the event of [●]) after the Change of Control Date, proration provisions as are provided in the four paragraphs preceding this paragraph and shall be paid, less applicable withholding taxes, in cash; provided, however, that (A) a payment due upon [●] on or after the Change of Control Date shall be based on the fair market value of the common equity security of the Surviving Company as of the date of [●] and shall be paid within 10 days after the date of [●] without regard to any longer period that may be provided pursuant to the preceding paragraphs of this Award Agreement, (B) a payment due after [●] (determined without regard to the occurrence of the Change of Control) shall be based on the fair market value of the common equity security of the Surviving Company as of [●] (determined without regard to the occurrence of the Change of Control) and shall be paid within 10 days after [●] without regard to any longer period that may be provided pursuant to the preceding paragraphs of this Award Agreement, and (C) if the Change of Control constitutes a Section 409A Change of Control (as hereinafter defined) and if you incur a separation from service during the two-year period beginning on the Change of Control Date due to [●] during the Applicable Period following the Change of Control, then (x) you will receive a payout with respect to your restricted equity units on the first business day that is at least six months and one day following the applicable separation from service (or, if earlier, within 10 days after [●] (determined without regard to the occurrence of the Change of Control)), (y) such payout will be based on the fair market value of the common equity security of the Surviving Company as of the fifth business day immediately preceding the date of such payment (or, if the payment is to be made within 10 days after [●] (determined without regard to the occurrence of the Change of Control), then such payout amount will be based on the fair market value of the common equity security of the Surviving Company as of [●] (determined without regard to the occurrence of the Change of Control)), and (z) solely in the case of [●] (but not in the case of [●]), such payout shall be prorated based on the number of months you worked during [●] (determined without regard to the occurrence of the Change of Control).

Any determination of fair market value required pursuant to clause (iv) or (v) of the preceding paragraph shall be made in good faith by the board of directors (or an authorized committee thereof) of the Surviving Company (which, in the case of a publicly-traded security, shall be based on the closing price of such security on the principal exchange upon which it is traded as of the applicable date).

As used herein, the term “Surviving Company” means the entity designated by the Committee on or before the Change of Control Date as resulting from the Change of Control. For the avoidance of doubt, the Company may be the Surviving Company depending on the facts and circumstances relating to the Change of Control. As used herein, the term “Section 409A Change of Control” means a Change of Control (as defined in Section 2.8 of the Plan without regard to

 

4


the last sentence of such section) that also constitutes a change in control event (as defined in Treasury regulation section 1.409A-3(i)(5)).

Your PUs are subject to several restrictions, including that such PUs may not be transferred, sold, assigned, pledged, exchanged, hypothecated or otherwise transferred, or disposed of to the extent then subject to restrictions.

If the Company is required to prepare an accounting restatement due to the material noncompliance of the Company, as a result of misconduct, with any financial reporting requirement under the securities laws, and if you knowingly engaged in the misconduct, were grossly negligent with respect to such misconduct, or knowingly or grossly negligently failed to prevent the misconduct (whether or not you are one of the individuals subject to automatic forfeiture under Section 304 of the Sarbanes-Oxley Act of 2002), the Plan Administrator may determine that you shall reimburse the Company the amount of any payment in settlement of an Award earned or accrued during the twelve-month period following the first public issuance or filing with the United States Securities and Exchange Commission (whichever first occurred) of the financial document embodying such financial reporting requirement.

Notwithstanding anything in this Award Agreement or any other agreement between you and the Company to the contrary, including, without limitation, any provisions that prevent the Company from unilaterally amending this Award Agreement, you agree by accepting this Award that the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”) has the effect of requiring certain officers of the Company to repay the Company, and for the Company to recoup from such officers, erroneously awarded amounts of incentive-based compensation. If the Act, any rules or regulations promulgated thereunder by the Securities and Exchange Commission or any similar federal or state law requires the Company to recoup any erroneously awarded incentive-based compensation (including stock options and any other equity-based awards) that the Company has paid or granted to you, you hereby agree, even if you have terminated your employment with the Company, to promptly repay such erroneously awarded incentive compensation to the Company upon its written request. This obligation shall survive the termination of this Award Agreement.

After your employment relationship with the Company terminates for any reason, you acknowledge and agree, by accepting the Award Agreement, that you remain subject to the following obligations (“Post-Termination Obligations”), which serve to align your interests with the Company’s long-term business interests. The following Post-Termination Obligations are reasonably related to the protection of such business interests, including the preservation of the Company’s goodwill and the protection of the confidential information that you have obtained and will obtain in the course of your future employment with the Company.

a. Non-Disclosure. You will comply with the obligations contained in the Anadarko Code of Business Conduct and Ethics that continue after termination of employment to not disclose or utilize certain confidential information of the Company and its affiliates as specified therein. As an officer of the Company, the law imposes upon you a duty to safeguard and protect confidential information of the Company and its affiliates. Except as expressly permitted by this Award Agreement and without limiting the foregoing, you shall not use for your own benefit or the benefit of any person or entity (other than the Company and its affiliates), or disclose to any

 

5


person or entity (other than the Company and its affiliates), any information relating to confidential information of the Company or its affiliates made, developed or acquired by or disclosed to you, individually or in conjunction with others, during your employment with the Company or its affiliates (whether during business hours or otherwise and whether on the Company’s premises or otherwise). The non-disclosure requirements set forth in this paragraph (a) are subject to the provisions of paragraph (e) (“Disclosures”) below.

b. Non-Disparagement. For a term of one (1) year beginning on the last day of your employment with the Company, you shall make no disparaging remarks regarding or relating to Anadarko, its affiliates, or any employee or director of Anadarko or its affiliates. The non-disparagement requirements set forth in this paragraph (b) are subject to the provisions of paragraph (e) (“Disclosures”) below.

c. Non-Solicitation. For a term of one (1) year beginning on the last day of your employment with the Company, you will not, directly or indirectly, solicit, or otherwise attempt to induce, any employee of the Company or any of its affiliates to terminate his or her employment with the Company or such affiliates, or hire or assist in the hiring of any such employee by any person, association, or entity not affiliated with the Company.

d. Remedies. Should you violate any Post-Termination Obligation, you will not thereafter be entitled to payment with respect to any of the Awards subject to this Award Agreement that have not yet vested and become payable pursuant to the terms hereof, and such Awards shall be forfeited (without value) to the Company immediately as of the date that you violate such Post-Termination Obligation. If your violation of any Post-Termination Obligation is not discovered until after any such Award has vested and been paid to you, the Company may require you to return to it the full amount of such payment (determined prior to the application of any applicable tax withholding). Notwithstanding the foregoing, money damages would not be a sufficient remedy for any breach of a Post-Termination Obligation by you. The Company shall be entitled as a matter of right to specific performance of the Post-Termination Obligations, including entry of an ex parte temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Award Agreement, or both, or other appropriate judicial remedy, writ or order, in any court of competent jurisdiction, restraining any violation or further violation of such agreements by you or others acting on your behalf, without any showing of irreparable harm and without any showing that the Company does not have adequate remedy at law. The remedies specified herein shall not be construed as limiting the remedies available to the Company and shall be in addition to all other remedies available to the Company at law and in equity. If any term, provision, covenant or condition of the Post-Termination Obligations is held by a court of competent jurisdiction to be illegal, invalid, unenforceable, or void, and not correctable through modification, then such provision, covenant, or condition (or portion thereof) may be severed and the validity and enforceability of the remainder of this Award Agreement shall not in any way be affected, impaired or invalidated.

e. Disclosures. Nothing in this Award Agreement will prevent you from making disparaging remarks or disclosing Company confidential and proprietary information when compelled to do so by law or when such communications are intended to comply with any federal or state whistleblower statute including, but not limited to, information provided in a

 

6


manner described in Section 21F(h)(1)(A) of the Securities Exchange Act of 1934, as amended, 15 U.S.C. 78u-6(h)(1)(A). Nothing in this Award Agreement will prevent you from: (i) making a good faith report of possible violations of applicable law to any governmental agency or entity or (ii) making disclosures that are protected under the whistleblower provisions of applicable law. For the avoidance of doubt, nothing herein shall prevent you from making a disclosure of a trade secret that: (A) is made (1) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney; and (2) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Further, an individual who files a lawsuit for retaliation by an employer of reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (x) files any document containing the trade secret under seal and (y) does not disclose the trade secret, except pursuant to court order.

Please establish a Beneficiary Designation for your Long-Term Incentive Equity Awards online at [internal website address] or by contacting the Anadarko Benefits Center at 1-866-472-xxxx, option 1 and then option 1 again. You may update your designation anytime.

If you have any questions about this Award Agreement, please call me at 832-636-xxxx.

Sincerely,

 

7

Exhibit 99.1

 

LOGO

 

NEWS

A NADARKO A NNOUNCES L EADERSHIP C HANGES

HOUSTON , Nov. 15, 2018 – Anadarko Petroleum Corporation (NYSE: APC) today announced Bob Gwin, formerly Executive Vice President (EVP), Finance and CFO, has been named President. In his new role, Gwin will be responsible for leading Anadarko’s worldwide operations, project management, exploration, midstream and marketing, as well as the company’s expanding next-generation technology development and systems solutions.

“Bob has proven to be an exceptional leader since joining Anadarko in 2006, and in his new role will focus on strengthening our business results and furthering the company’s advancement of technology and systems,” said Al Walker, Anadarko Chairman and Chief Executive Officer. “With his appointment to President, Bob will oversee a new leadership structure aimed at building upon the successes of our upstream and project-management business groups through better integration with our midstream and marketing organization. He will also be in a position to advance our technology endeavors, giving Anadarko the management capability to deliver current and next-generation advancements into our business verticals with better systems solutions.”

Benjamin M. Fink, formerly Sr. Vice President, and President and CEO of the general partners of Western Gas Partners, LP and Western Gas Equity Partners, LP (collectively the “Partnerships”), will succeed Gwin in the role of EVP, Finance & CFO. With his new responsibilities, Fink will oversee the following: accounting, financial reporting and tax; treasury, corporate finance and risk management; investor relations and corporate communications; corporate development; corporate planning; and corporate audit. Fink will report to Al Walker and will join Danny Brown, EVP, U.S. Onshore Operations; Bob Gwin, President; Mitch Ingram, EVP, International, Deepwater & Exploration; Amanda McMillian, EVP and General Counsel; and Bobby Reeves, EVP, on Anadarko’s Executive Committee. In addition, Fink will serve as Chairman of the Partnerships’ boards of directors.

Robin H. Fielder, formerly Vice President, Investor Relations, has been promoted to Sr. Vice President, Midstream and will succeed Fink as the President and CEO of the Partnerships.


Michael C. Pearl, formerly Vice President, Finance and Treasurer, has also been promoted and will succeed Fielder as Sr. Vice President, Finance and Investor Relations.

ROBERT G. GWIN

Gwin has more than 30 years of experience in corporate finance and executive management. He joined Anadarko in 2006 as Vice President, Finance and Treasurer. Since 2009, he has served as EVP, Finance and CFO. Gwin has served as Chairman of the Board of the Partnerships until November 2018 and served as the Partnerships’ President and CEO until 2010. Gwin has been a director of LyondellBasell Industries, N.V. since May 2011, including serving as Chairman of the Board from August 2013 to September 2018. He holds a Bachelor of Science from the University of Southern California and a Master of Business Administration from the Fuqua School of Business at Duke University. He is a Chartered Financial Analyst.

BENJAMIN M. FINK

Fink joined Anadarko in 2007 as Vice President of Finance for Anadarko Algeria Company LLC. He most recently served as Sr. Vice President of Finance of Anadarko since February of 2017, as well as President and CEO of the Partnerships. He previously served as Vice President, Finance of Anadarko, as well as Sr. Vice President and CFO of the Partnerships. Prior to joining Anadarko, Fink served as an independent financial consultant to the company in its former Beijing, China, and Rio de Janeiro, Brazil, offices. He holds a Bachelor of Science in economics from the Wharton School of the University of Pennsylvania. He is a Chartered Financial Analyst.

ROBIN H. FIELDER

Fielder has more than 15 years of midstream, upstream and financial experience in the oil and natural gas industry, beginning her career with Anadarko in 2002. She has held a variety of positions with the company, including most recently as Vice President, Investor Relations, and previously as Midstream Business Advisor, General Manager of East Texas and North Louisiana, Worldwide Operations Business Advisor and various exploration and operations engineering positions in both the U.S. onshore and the Gulf of Mexico. She holds a Bachelor of Science in petroleum engineering from Texas A&M University and is a registered Professional Engineer in the state of Texas and a member of the Society of Petroleum Engineers.

 

2


MICHAEL C. PEARL

Pearl has more than 20 years of oil and natural gas, and financial experience. He joined Anadarko in 2006. Prior to being named Sr. Vice President, Finance and Investor Relations, he served as Vice President, Finance and Treasurer since July 2016. Pearl has held positions of increasing responsibility throughout his career with Anadarko including Corporate Controller, Director Corporate Tax, and Chief Financial Officer of Western Gas. Pearl holds a Bachelor of Business Administration and a Master of Science in Accounting from Texas A&M University. He also holds an MBA from Rice University where he was a Jones Scholar Award recipient. He is a Certified Public Accountant.

Anadarko Petroleum Corporation’s mission is to deliver a competitive and sustainable rate of return to shareholders by exploring for, acquiring and developing oil and natural gas resources vital to the world’s health and welfare. As of year-end 2017, the company had 1.44 billion barrels-equivalent of proved reserves, making it one of the world’s largest independent exploration and production companies. For more information about Anadarko and APC Flash Feed updates, please visit www.anadarko.com .

This news release contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Anadarko believes that its expectations are based on reasonable assumptions. No assurance, however, can be given that such expectations will prove to have been correct. A number of factors could cause actual results to differ materially from the projections, anticipated results or other expectations expressed in this news release, including Anadarko’s ability to successfully execute upon its capital program; to efficiently identify and deploy capital resources; and to meet financial and operating guidance. See “Risk Factors” in the company’s 2017 Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and other public filings and press releases. Anadarko undertakes no obligation to publicly update or revise any forward-looking statements.

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Anadarko Contacts

MEDIA :

John Christiansen, john.christiansen@anadarko.com , 832.636.8736

Stephanie Moreland, stephanie.moreland@anadarko.com , 832.636.2912

INVESTORS :

Andy Taylor, andy.taylor@anadarko.com , 832.636.3089

 

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Exhibit 99.2

 

LOGO

 

NEWS

ANADARKO ANNOUNCES BOARD OF DIRECTOR ELECTIONS

HOUSTON , Nov. 15, 2018 - Anadarko Petroleum Corporation (NYSE: APC) today announced the election of Alexandra Pruner and Michael K. Grimm to serve as independent directors of the company, effective today.

“Alie’s experience in the oil and natural gas industry and her strategic leadership in finance and investment banking make her a particularly good fit for our Board of Directors,” said Anadarko Chairman and CEO Al Walker. “Mike is a respected leader in the energy industry with a strong track record of success in the U.S. onshore, most recently in West Texas, where one of Anadarko’s most prolific growth assets is located. We are fortunate to add their perspectives and experiences to our boardroom.”

ALEXANDRA PRUNER

Ms. Pruner, 56, has served as Partner and Chief Financial Officer of Perella Weinberg Partners, a global independent advisory firm providing strategic and financial advice and asset-management services, since it combined in December 2016 with Tudor, Pickering, Holt & Co., LLC, an energy-focused investment bank and asset-management firm. Prior to that, she served as CFO and a member of the Management Committee at Tudor, Pickering, Holt & Co. since the firm’s founding in 2007. Ms. Pruner served as Senior Vice President, Strategic Business Development and publisher of World Oil magazine for Gulf Publishing Company from 2002 to 2007. Prior to joining Gulf Publishing Company, she spent two years in the technology sector serving the energy industry, including Vice President, Energy Vertical at Idea Integration, an IT development and design firm and as Vice President, Marketing for PetroCosm Corporation, an oilfield services B2B procurement and supply chain management company. She served as Director of Investor Relations and Corporate Communications for The Houston Exploration Company, an independent exploration and production company, from 1997 to 2000. Ms. Pruner has extensive experience with the energy industry and in investment banking, having also been with Shearson Lehman Brothers from 1984 to 1990, including as Vice President, Corporate Affairs and Vice President, Government Affairs.

 

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Ms. Pruner is also the founder and a board member of Women’s Global Leadership Conference in Energy & Technology, serves as a member of the Central Advisory Development Board for Amegy Bank and is President of the President’s Advisory Council on the Economics Department at Brown University. She is also a board member of the Houston Symphony Endowment (President), the United Way of Greater Houston (Audit Chair), and the Houston advisory board of the Nature Conservancy. Ms. Pruner holds a B.A. in economics from Brown University.

MICHAEL K. GRIMM

Mr. Grimm, 64, is currently President of Rising Star Petroleum, L.L.C. He is the immediate Past Chairman of the Board for RSP Permian, Inc. Prior to being named Chairman, Mr. Grimm was a Co-Founder of RSP Permian in 2010, and served as a Co-Chief Executive Officer until 2014. From 2006 to 2017, Mr. Grimm served as President and Chief Executive Officer of Rising Star Energy Development Company, and from 1995 to 2006, he served as President and Chief Executive Officer of Rising Star Energy, L.L.C., an upstream exploration and production company active in onshore continental United States that he co-founded in 1995. From 1990 to 1994, Mr. Grimm was Vice President of Land and Exploration for Placid Oil Company. Prior to that, Mr. Grimm was employed for 13 years in the Land and Exploration Departments for Amoco Production Company in Houston and New Orleans. Mr. Grimm has more than 41 years of experience in the oil and natural gas industry and currently serves as a Director of Energy Transfer LP (formerly Energy Transfer Partners, L.P.), since December 2005. He also serves as Chairman of the Compensation Committee for ET.

Mr. Grimm has been active in several industry organizations, including the Independent Petroleum Association of America, the All American Wildcatters, the American Association of Professional Landmen, and the co-founder of NAPE. Mr. Grimm holds a B.B.A./P.L.M. degree from the University of Texas at Austin and is a member of the Silver Spurs Hall of Fame.

Anadarko Petroleum Corporation’s mission is to deliver a competitive and sustainable rate of return to shareholders by exploring for, acquiring and developing oil and natural gas resources vital to the world’s health and welfare. As of year-end 2017, the company had approximately 1.44 billion barrels-equivalent of proved reserves, making it one of the world’s largest independent exploration and production companies. For more information about Anadarko and APC Flash Feed updates, please visit www.anadarko.com .

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Anadarko Contacts

INVESTORS :

Robin Fielder, robin.fielder@anadarko.com , 832.636.1462

Andy Taylor, andy.taylor@anadarko.com , 832.636.3089

MEDIA :

John Christiansen, john.christiansen@anadarko.com , 832.636.8736

Stephanie Moreland, stephanie.moreland@anadarko.com , 832.636.2912

 

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