UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 17, 2016
Whiting Petroleum Corporation
(Exact name of registrant as specified in its charter)
| Delaware | 1-31899 | 20-0098515 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
1700 Broadway, Suite 2300, Denver, Colorado 80290-2300
(Address of principal executive offices, including ZIP code)
(303) 837-1661
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 C.F.R. §230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 C.F.R. §240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 C.F.R. §240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 C.F.R. §240.13e-4(c)) |
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On May 18, 2016, Whiting Petroleum Corporation (the “Company”) filed a Certificate of Amendment to its Certificate of Incorporation (the “Amendment”) after the Company’s stockholders approved the Amendment on May 17, 2016. The Amendment increases the Company’s number of authorized shares of common stock from 300,000,000 to 600,000,000. Also on May 18, 2016, the Company filed a Certificate of Elimination to remove the certificate of designations relating to the Series A Junior Participating Preferred Stock from the Company’s Restated Certificate of Incorporation (the “Certificate of Elimination”) as well as a Restated Certificate of Incorporation reflecting the Amendment and the Certificate of Elimination with the Secretary of State of the State of Delaware.
Copies of the Amendment, Certificate of Elimination and the Company’s Restated Certificate of Incorporation reflecting the Amendment and Certificate of Elimination are filed as Exhibits 3.1, 3.2 and 3.3, respectively, to this Current Report on Form 8-K and are incorporated by reference herein.
| Item 5.07. | Submission of Matters to a Vote of Security Holders. |
The Company held its annual meeting of stockholders on May 17, 2016 (the “Annual Meeting”). Of the 209,873,575 shares outstanding as of the record date for the Annual Meeting, 170,229,662 shares (approximately 81%) were present or represented by proxy at the Annual Meeting. All proposals were approved by stockholders other than the proposal to amend the Company’s Restated Certificate of Incorporation to declassify the Company’s Board of Directors and provide for the annual elections of directors, which did not receive the required vote of 70% of shares entitled to vote on such proposal. The items voted on at the Annual Meeting and the results of the voting on the matters submitted to the stockholders were as follows:
| 1. | Election of directors for terms expiring at the 2019 annual meeting of stockholders and until their successors are duly elected and qualified. Each of the following nominees for director was elected at the Annual Meeting. |
| Shares Voted | ||||||||||||
| Name of Nominee |
For | Withheld | Broker Non-Vote | |||||||||
| Thomas L. Aller |
120,520,463 | 2,841,229 | 46,867,970 | |||||||||
| James E. Catlin |
122,469,435 | 892,257 | 46,867,970 | |||||||||
| Michael B. Walen |
121,302,481 | 2,059,211 | 46,867,970 | |||||||||
| 2. | Approval, by advisory vote, of the compensation of the Company’s named executive officers as disclosed in its 2016 proxy statement. |
| Shares Voted | ||||||
| For |
Against |
Abstain |
Broker Non-Vote | |||
| 112,676,712 | 8,300,142 | 2,384,838 | 46,867,970 | |||
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| 3. | Ratification of appointment of Deloitte & Touche LLP as the independent registered public accounting firm for 2016. |
| Shares Voted | ||||||
| For |
Against |
Abstain |
Broker Non-Vote | |||
| 165,691,681 | 4,195,346 | 342,635 | 0 | |||
| 4. | Approval and adoption of an amendment to the Company’s Restated Certificate of Incorporation to declassify the Company’s Board of Directors and provide for the annual elections of directors. |
| Shares Voted | ||||||
| For |
Against |
Abstain |
Broker Non-Vote | |||
| 122,768,784 | 460,954 | 131,954 | 46,867,970 | |||
| 5. | Approval and adoption of an amendment to the Company’s Restated Certificate of Incorporation to increase the number of authorized shares of common stock. |
| Shares Voted | ||||||
| For |
Against |
Abstain |
Broker Non-Vote | |||
| 146,731,830 | 22,644,956 | 852,876 | 0 | |||
| 6. | Approval of an amendment and restatement of the Whiting Petroleum Corporation 2013 Equity Incentive Plan. |
| Shares Voted | ||||||
| For |
Against |
Abstain |
Broker Non-Vote | |||
| 118,403,263 | 4,552,458 | 405,971 | 46,867,970 | |||
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| Item 9.01. | Financial Statements and Exhibits. |
| (a) | Financial Statements of Businesses Acquired. Not applicable. |
| (b) | Pro Forma Financial Information. Not applicable. |
| (c) | Shell Company Transactions. Not applicable. |
| (d) | Exhibits: |
| (3.1) | Amendment to Restated Certificate of Incorporation of Whiting Petroleum Corporation. |
| (3.2) | Certificate of Elimination of Whiting Petroleum Corporation. |
| (3.3) | Restated Certificate of Incorporation of Whiting Petroleum Corporation. |
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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.
| WHITING PETROLEUM CORPORATION | ||||||
| Date: May 18, 2016 | By: | /s/ James J. Volker | ||||
| James J. Volker | ||||||
| Chairman, President and Chief Executive Officer | ||||||
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WHITING PETROLEUM CORPORATION
FORM 8-K
EXHIBIT INDEX
| Exhibit Number |
Description | |
| 3.1 |
Amendment to Restated Certificate of Incorporation of Whiting Petroleum Corporation. | |
| 3.2 |
Certificate of Elimination of Whiting Petroleum Corporation. | |
| 3.3 |
Restated Certificate of Incorporation of Whiting Petroleum Corporation. | |
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Exhibit 3.1
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
WHITING PETROLEUM CORPORATION
Whiting Petroleum Corporation (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware (the “GCL”), does hereby certify as follows:
1. That at a meeting of the Board of Directors of the Corporation resolutions were duly adopted setting forth a proposed amendment of the Restated Certificate of Incorporation of the Corporation, declaring said amendment to be advisable and calling for the stockholders of the Corporation to consider such amendment at the 2016 annual meeting of the stockholders of the Corporation, which amendment would amend and restate Paragraph (a) of Article FOURTH of the Restated Certificate of Incorporation of the Corporation in its entirety to read as follows:
“(a) Authorized Capital Stock. The total number of shares of stock which the Corporation shall have authority to issue is 605,000,000 shares of capital stock, consisting of (i) 600,000,000 shares of common stock, each having a par value of $0.001 per share (the “Common Stock”), and (ii) 5,000,000 shares of preferred stock, each having a par value of $0.001 per share (the “Preferred Stock”).”
2. That pursuant a resolution of the Board of Directors the 2016 annual meeting of the stockholders of the Corporation was duly called and held upon notice in accordance with Section 222 of the GCL at which meeting the necessary number of shares as required by the GCL were voted in favor of the amendment.
3. That said amendment was duly adopted in accordance with the provisions of Section 242 of the GCL.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be executed on its behalf this 18th day of May, 2016.
| By: | /s/ Bruce R. DeBoer | |||
| Name: | Bruce R. DeBoer | |||
| Title: | Vice President, General Counsel and Corporate Secretary | |||
Exhibit 3.2
CERTIFICATE OF ELIMINATION OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF WHITING PETROLEUM CORPORATION
Pursuant to Section 151 of the General Corporation Law of the State of Delaware
Whiting Petroleum Corporation, (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware (the “GCL”), does hereby certify as follows:
1. That, pursuant to Section 151 of the GCL and authority granted in the Corporation’s Restated Certificate of Incorporation, the Board of Directors of the Corporation (the “Board of Directors”) previously designated 1,500,000 shares of authorized shares of preferred stock of the Corporation as Series A Junior Participating Preferred Stock, par value $0.001 per share (the “Preferred Stock”), and established the voting and other powers, preferences, and relative, participating, optional or other rights of the Preferred Stock and the qualifications, limitations and restrictions thereof, and on February 23, 2006, filed a Certificate of Designations in the office of the Secretary of State of the State of Delaware with respect to the Preferred Stock (the “Certificate of Designations”).
2. No shares of Preferred Stock and are outstanding and no shares thereof will hereafter be issued subject to the Certificate of Designations.
3. That the Board of Directors of the Corporation, by resolution adopted by unanimous written consent, pursuant to Section 141(f) of the GCL, on May 18, 2016, duly approved and adopted the following resolutions, which resolution remains in full force and effect on the date hereof:
RESOLVED, that no shares of the preferred stock, par value $0.001 per share, of the Corporation designated as Series A Junior Participating Preferred Stock (the “Preferred Stock”) are outstanding and none will be issued pursuant to the Certificate of Designations of Series A Junior Participating Preferred Stock.
RESOLVED FURTHER, that the proper officers of the Corporation, or any one or more of them, or their designees are authorized to prepare, execute and file with the Secretary of State of the State of Delaware a certificate or any other applications, notices or other documents in order to eliminate the Certificate of Designations of Series A Junior Participating Preferred Stock from the Corporation’s Restated Certificate of Incorporation.
FURTHER RESOLVED, that the proper officers of the Corporation, or any one or more of them, or their designees are authorized to prepare, execute and file a restatement of the Restated Certificate of Incorporation of the Corporation, as amended to date (the “Certificate”), without shareholder approval pursuant to Article TWELFTH of the Certificate and Section 245 of the General Corporation Law of the State of Delaware to include all changes made to the Certificate since the prior restatement.
FURTHER RESOLVED, that any and all actions heretofore taken or caused to be taken by the officers, agents and representatives of the Corporation, consistent with the tenor and purport of the foregoing resolutions, are hereby ratified, confirmed and approved on behalf of the Corporation in all respects.
FURTHER RESOLVED, that the officers of the Corporation are hereby authorized to take or cause to be taken all such action and execute or cause to be executed such certificates, instruments, agreements and other documents as may be deemed by them necessary or desirable to carry out the provisions of the foregoing resolutions; the taking of any such action shall constitute conclusive evidence of the authority of the officer or officers hereunder.
4. That, in accordance with Section 151(g) of the GCL, upon the effective date of the filing of this Certificate, all matters set forth in the Certificate of Designations with respect to the Preferred Stock, including all references thereof, are hereby eliminated from the Corporation’s Restated Certificate of Incorporation, and the shares that were designated to such series are hereby returned to the status of authorized but unissued shares of the preferred stock of the Corporation, without designation as to series.
[the next page is the signature page]
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be executed on its behalf this 18th day of May, 2016.
| By: | /s/ Bruce R. DeBoer | |||
| Name: | Bruce R. DeBoer | |||
| Title: | Vice President, General Counsel and Corporate Secretary | |||
Exhibit 3.3
RESTATED
CERTIFICATE OF INCORPORATION
OF
WHITING PETROLEUM CORPORATION
Pursuant to Section 245 of the
Delaware General Corporation Law
Whiting Petroleum Corporation, (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware (the “GCL”), does hereby certify as follows:
(1) The name of the Corporation is Whiting Petroleum Corporation. The Corporation was originally incorporated under the name Whiting Petroleum Holdings, Inc. The original certificate of incorporation of the Corporation was filed with the office of the Secretary of State of the State of Delaware on the 18th day of July, 2003.
(2) This Restated Certificate of Incorporation was duly adopted by the Board of Directors of the Corporation in accordance with Section 245 of the GCL.
(3) This Restated Certificate of Incorporation restates and integrates and does not further amend the Restated Certificate of Incorporation of the Corporation, as heretofore restated, amended or supplemented. There is no discrepancy between those provisions and the provisions of this Restated Certificate of Incorporation.
(4) The text of the Restated Certificate of Incorporation is restated in its entirety as follows:
FIRST: Name. The name of the Corporation is Whiting Petroleum Corporation (the “Corporation”).
SECOND: Agent for Service. The address of the registered office of the Corporation in the State of Delaware shall be at 1209 Orange Street, City of Wilmington, County of New Castle; and the name of its registered agent at such address shall be Corporation Trust Company.
THIRD: Purpose. The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware (the “GCL”).
FOURTH: Capital Stock.
(a) Authorized Capital Stock. The total number of shares of stock which the Corporation shall have authority to issue is 605,000,000 shares of capital stock, consisting of (i) 600,000,000 shares of common stock, each having a par value of $0.001 per share (the “Common Stock”), and (ii) 5,000,000 shares of preferred stock, each having a par value of $0.001 per share (the “Preferred Stock”).
(b) Common Stock. The powers, preferences and rights, and the qualifications, limitations and restrictions, of each class of the Common Stock are as follows:
(1) No Cumulative Voting. The holders of shares of Common Stock shall not have cumulative voting rights.
(2) Dividends; Stock Splits. Subject to the rights of the holders of Preferred Stock, and subject to any other provisions of this Restated Certificate of Incorporation, as it may be amended from time to time, holders of shares of Common Stock shall be entitled to receive such dividends and other distributions in cash, stock or property of the Corporation when, as and if declared thereon by the Board of Directors from time to time out of assets or funds of the Corporation legally available therefor.
(3) Liquidation, Dissolution, etc. In the event of any liquidation, dissolution or winding up (either voluntary or involuntary) of the Corporation, the holders of shares of Common Stock shall be entitled to receive the assets and funds of the Corporation available for distribution after payments to creditors and to the holders of any Preferred Stock of the Corporation that may at the time be outstanding, in proportion to the number of shares held by them, respectively.
(4) Merger, etc. In the event of a merger or consolidation of the Corporation with or into another entity (whether or not the Corporation is the surviving entity), the holders of each share of Common Stock shall be entitled to receive the same per share consideration on a per share basis.
(5) No Preemptive or Subscription Rights. No holder of shares of Common Stock shall be entitled to preemptive or subscription rights.
(c) Preferred Stock. The Board of Directors is hereby expressly authorized to provide for the issuance of all or any shares of the Preferred Stock in one or more classes or series, and to fix for each such class or series such voting powers, full or limited, or no voting powers, and such designations, preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by the Board of Directors providing for the issuance of such class or series, including, without limitation, the authority to provide that any such class or series may be (i) subject to redemption at such time or times and at such price or prices; (ii) entitled to receive dividends (which may be cumulative or non-cumulative) at such rates (which may be fixed or variable), on such conditions, and at such times, and payable in preference to, or in such relation to, the dividends payable on any other class or classes or any other series; (iii) entitled to such rights upon the dissolution of, or upon any distribution of the assets of, the Corporation; or (iv) convertible into, or exchangeable for, shares of any other class or classes of stock, or of any other series of the same or any other class or classes of stock, of the Corporation at such price or prices or at such rates of exchange and with such adjustments; all as may be stated in such resolution or resolutions.
(d) Power to Sell and Purchase Shares. Subject to the requirements of applicable law, the Corporation shall have the power to issue and sell all or any part of any
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shares of any class of stock herein or hereafter authorized to such persons, and for such consideration, as the Board of Directors shall from time to time, in its discretion, determine, whether or not greater consideration could be received upon the issue or sale of the same number of shares of another class, and as otherwise permitted by law. Subject to the requirements of applicable law, the Corporation shall have the power to purchase any shares of any class of stock herein or hereafter authorized from such persons, and for such consideration, as the Board of Directors shall from time to time, in its discretion, determine, whether or not less consideration could be paid upon the purchase of the same number of shares of another class, and as otherwise permitted by law.
FIFTH: Directors. The following provisions are inserted for the management of the business and the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:
(a) Business and Affairs of the Corporation. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
(b) Number of Directors. The number of directors of the Corporation shall be as from time to time fixed by, or in the manner provided in, the By-Laws of the Corporation.
(c) Classified Board of Directors. The directors shall be divided into three classes, designated Class I, Class II and Class III. Each class shall consist, as nearly as may be possible, of one-third of the total number of directors constituting the entire Board of Directors. The initial division of the Board of Directors into classes shall be made by the decision of the affirmative vote of a majority of the entire Board of Directors. The term of the initial Class I directors shall terminate on the date of the 2004 annual meeting; the term of the initial Class II directors shall terminate on the date of the 2005 annual meeting; and the term of the initial Class III directors shall terminate on the date of the 2006 annual meeting. At each succeeding annual meeting of stockholders beginning in 2004, successors to the class of directors whose term expires at that annual meeting shall be elected for a three-year term. If the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, and any additional director of any class elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class, but in no case will a decrease in the number of directors shorten the term of any incumbent director. As used in this Restated Certificate of Incorporation, the term “entire Board of Directors” means the total number of directors which the Corporation would have if there were no vacancies.
(d) Term. A director shall hold office until the annual meeting for the year in which his or her term expires and until his or her successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, disqualification or removal from office.
(e) Vacancies; Removal. Subject to the terms of any one or more classes or series of Preferred Stock, any vacancy on the Board of Directors that results from an increase in the number of directors may be filled only by a majority of the Board of Directors then in office, provided that a quorum is present, and any other vacancy occurring on the Board of Directors
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may be filled only by a majority of the Board of Directors then in office, even if less than a quorum, or by a sole remaining director. Any director of any class elected to fill a vacancy resulting from an increase in the number of directors of such class shall hold office for a term that shall coincide with the remaining term of that class. Any director elected to fill a vacancy not resulting from an increase in the number of directors shall have the same remaining term as that of his predecessor. Subject to the rights, if any, of the holders of shares of Preferred Stock then outstanding, any or all of the directors of the Corporation may be removed from office at any time, but only for cause, by the affirmative vote of the holders of at least seventy percent (70%) of the voting power of the Corporation’s then outstanding capital stock entitled to vote generally in the election of directors. Notwithstanding the foregoing, whenever the holders of any one or more classes or series of Preferred Stock issued by the Corporation shall have the right, voting separately by class or series, to elect directors at an annual or special meeting of stockholders, the election, term of office, filling of vacancies and other features of such directorships shall be governed by the terms of this Restated Certificate of Incorporation applicable thereto, and such directors so elected shall not be divided into classes pursuant to this Article FIFTH unless expressly provided by such terms.
(f) Power of the Directors. In addition to the powers and authority hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the GCL, this Restated Certificate of Incorporation, and any By-Laws adopted by the stockholders; provided, however, that no By-Laws hereafter adopted by the stockholders shall invalidate any prior act of the directors which would have been valid if such By-Laws had not been adopted.
SIXTH: Director Liability. No director shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the GCL as the same exists or may hereafter be amended. If the GCL is amended hereafter to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent authorized by the GCL, as so amended. Any repeal or modification of this Article SIXTH shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification.
SEVENTH: Indemnification. The Corporation shall indemnify its directors and officers to the fullest extent authorized or permitted by law, as now or hereafter in effect, and such right to indemnification shall continue as to a person who has ceased to be a director or officer of the Corporation and shall inure to the benefit of his or her heirs, executors and personal and legal representatives; provided, however, that, except for proceedings to enforce rights to indemnification, the Corporation shall not be obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors. The right to indemnification conferred by this Article SEVENTH shall include the right to be paid by the Corporation the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition.
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The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article SEVENTH to directors and officers of the Corporation.
The rights to indemnification and to the advance of expenses conferred in this Article SEVENTH shall not be exclusive of any other right which any person may have or hereafter acquire under this Restated Certificate of Incorporation, the By-Laws of the Corporation, any statute, agreement, vote of stockholders or disinterested directors or otherwise.
Any repeal or modification of this Article SEVENTH shall not adversely affect any rights to indemnification and to the advancement of expenses of a director or officer of the Corporation existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
EIGHTH: Special Stockholder Meetings. Unless otherwise required by law, special meetings of stockholders, for any purpose or purposes, may be called only by (a) the Chairman of the Board of Directors, if there be one, (b) the President or (c) a majority of the entire Board of Directors. The ability of the stockholders to call a special meeting is hereby specifically denied.
NINTH: No Action by Written Consent. Any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation, and the ability of the stockholders to consent in writing to the taking of any action is hereby specifically denied.
TENTH: Place of Stockholder Meetings and Corporate Books. Meetings of stockholders may be held within or without the State of Delaware, as the By-Laws may provide. The books of the Corporation may be kept (subject to any provision contained in the GCL) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the By-Laws of the Corporation.
ELEVENTH: Amendment of By-Laws. In furtherance and not in limitation of the powers conferred upon it by the laws of the State of Delaware, the Board of Directors shall have the power to adopt, amend, alter or repeal the Corporation’s By-Laws. The affirmative vote of at least a majority of the entire Board of Directors shall be required to adopt, amend, alter or repeal the Corporation’s By-Laws. The Corporation’s By-Laws also may be adopted, amended, altered or repealed by the affirmative vote of the holders of at least seventy percent (70%) of the voting power of the shares entitled to vote at an election of directors.
TWELFTH: Amendment of Certificate of Incorporation. The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Restated Certificate of Incorporation in the manner now or hereafter prescribed in this Restated Certificate of Incorporation, the Corporation’s By-Laws or the GCL, and all rights herein conferred upon stockholders are granted subject to such reservation; provided, however, that, notwithstanding any other provision of this Restated Certificate of Incorporation (and in addition to any other vote that may be required by law), the affirmative vote of the holders of at least seventy percent
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(70%) of the voting power of the shares entitled to vote at an election of directors shall be required to amend, alter, change or repeal, or to adopt any provisions as part of this Restated Certificate of Incorporation inconsistent with the purpose and intent of Articles FIFTH, SIXTH, EIGHTH, NINTH and ELEVENTH of this Restated Certificate of Incorporation or this Article TWELFTH.
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IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate of Incorporation to be executed on its behalf this 18th day of May, 2016.
| By: | /s/ Bruce R. DeBoer | |||
| Name: | Bruce R. DeBoer | |||
| Title: | Vice President, General Counsel and Corporate Secretary | |||
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