Form 8-K

PRIMARY BENEFICIARY.

Relationship

Percent

Social Security Number

0001193125-12-253712.txt : 20120530 0001193125-12-253712.hdr.sgml : 20120530 20120530171554 ACCESSION NUMBER: 0001193125-12-253712 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20120524 ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers ITEM INFORMATION: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20120530 DATE AS OF CHANGE: 20120530 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ATWOOD OCEANICS INC CENTRAL INDEX KEY: 0000008411 STANDARD INDUSTRIAL CLASSIFICATION: DRILLING OIL & GAS WELLS [1381] IRS NUMBER: 741611874 STATE OF INCORPORATION: TX FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-13167 FILM NUMBER: 12878479 BUSINESS ADDRESS: STREET 1: 15835 PARK TEN PL DR STREET 2: SUITE 200 CITY: HOUSTON STATE: TX ZIP: 77084 BUSINESS PHONE: 2817497845 MAIL ADDRESS: STREET 1: 15835 PARK TEN PL DR STREET 2: SUITE 200 CITY: HOUSTON STATE: TX ZIP: 77084 8-K 1 d360398d8k.htm FORM 8-K Form 8-K

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 24, 2012

ATWOOD OCEANICS, INC.

(Exact name of registrant as specified in its charter)


Texas	1-13167	74-1611874
(State or other jurisdiction of incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

15835 Park Ten Place Drive Houston, Texas		77084
(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code: (281) 749-7800

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2):

¨	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))

Item 5.02

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

On May 24, 2012, the board of directors (the “Board”) of Atwood Oceanics Inc. (the “Company”), upon the recommendation of the Compensation and Human Resources Committee of the Board, approved and adopted the following agreements and amendments applicable to certain of the Company’s executive officers.

Form of Executive Change of Control Agreements

A form of Executive Change of Control Agreement (the “Change of Control Agreement”) was adopted by the Board that will be entered into by each current executive officer of the Company other than Robert J. Saltiel. The Change of Control Agreement will replace any existing employment agreement for each such executive officer, and no executive officers will participate in the Company’s Retention Plan for Certain Salaried Employees or similar plans.

The Change of Control Agreement addresses the terms of executive employment and compensation in the event of a termination of employment due to a change of control of the Company. The agreement includes a three-year “evergreen” term in that the agreement automatically extends so as to cover a three-year period from any date then in effect until the Company has given notice to the executive that the term will no longer be so extended; provided that, prior to a change of control, the agreement will terminate if the executive’s employment is terminated for any reason. If a change of control occurs during the term of the Change of Control Agreement, the term will end on the later of the date that is two years after the change of control or the date the Company satisfies its obligations under the agreement.

Under the Change of Control Agreement, if the Company terminates the executive’s employment without “cause” or the executive terminates the executive’s employment for “good reason” (each as defined in the agreement) within 24 months after a change of control of the Company, the Company will be required to pay to the executive in a lump sum (i) prorated amounts of the executive’s accrued salary, bonus and vacation (the “Accrued Amounts”) and (ii) an amount equal to 2.0 times (or 2.5 times in the case of Mark L. Mey) the sum of (a) the executive’s annual salary plus (b) the executive’s target annual bonus.

In addition, following such termination, the executive and the executive’s spouse and/or family, as applicable, will be entitled to continued participation in the Company’s welfare benefit plans, policies and programs for a period of 24 months (the “Welfare Continuation Benefit”) and any outstanding stock options held by the executive will remain exercisable for one year after termination; provided that in no event will any stock options remain exercisable later than the earlier of (i) the original expiration date of such stock options or (ii) the tenth anniversary of the original grant date for such stock options. If the executive’s employment is terminated due to disability within 24 months after a change of control of the Company, the Company will be required to pay to the executive the Accrued Amounts and provide the Welfare Continuation Benefit. If the executive’s employment is terminated due to death within 24 months after a change of control of the Company, the Company will be required to pay to the executive’s estate

the Accrued Amounts and provide to executive’s spouse and/or family, as applicable, the Welfare Continuation Benefit. With respect to excise taxes on any parachute payment under the Change of Control Agreement, the agreement provides that the executive will be liable for such excise taxes, provided, however, that if reduction of the payments under the agreement to avoid excise taxes would result in a larger net after-tax payment to the executive, the payments under the agreement will be reduced.

Amendment to Salary Continuation Plan

The First Amendment, dated May 24, 2012 (the “Continuation Plan Amendment”), to the Atwood Oceanics, Inc. Salary Continuation Plan (formerly the Restated Executive Life Insurance Plan) (the “Continuation Plan”) (i) discontinues the automatic participation of executive officers of the Company in the Continuation Plan, (ii) provides that the Board will designate the participants under the Continuation Plan and (iii) updates the “change in control” definition under the Continuation Plan. Each current executive officer is a participant under the Continuation Plan.

Form of Salary Continuation Agreements

A new form of Salary Continuation Agreement (the “Continuation Agreement”) will be entered into by each participant under the Continuation Plan. The Continuation Agreement provides for payment of deferred compensation to the designated beneficiary of an executive upon the death of the executive while actively employed by the Company in an amount equal to (i) 2.5 times the executive’s annual salary at the time of death, excluding bonuses and other additional compensation, upon the death of the executive prior to age 70, if the death is due to other than accidental causes; or (ii) five times the executive’s annual salary at the time of death, excluding bonuses and other additional compensation, upon the death of the executive prior to age 70, if the death is due to accidental causes. The Continuation Agreement will terminate if no “change in control” (as defined in the Continuation Plan) has occurred as of the date executive’s employment terminates. If an executive’s employment is terminated within 30 months after a change in control, then, for purposes of determining benefits under the Continuation Plan and Continuation Agreement, the executive will be considered to remain “actively employed” until the earlier of the executive’s death or the date that is 30 months after the change in control.

The foregoing descriptions are summaries only and are qualified in their entirety by reference to the full and complete text of the relevant documents. The form of Change of Control Agreement, the Continuation Amendment and the form of Continuation Agreement are filed as Exhibits 10.1, 10.2, and 10.3 to this Current Report on 8-K.

Item 5.03

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

On and effective May 24, 2012, the Board approved and adopted an amendment and restatement of the By-Laws of the Company (the “Amended By-Laws”). As more fully summarized below, the Amended By-Laws provide for, among other things, (i) amended procedures for shareholders to call special meetings of the shareholders; (ii) clarifications concerning the voting of shares and decisions at meetings of the shareholders and (iii) advance notice provisions for shareholder proposals and Board nominations at annual and special meetings of shareholders.

Shareholder Ability to Call Special Meetings of the Shareholders. The Amended By-Laws continue to permit shareholders holding not less than 10% of all the shares of voting stock of the Company to call a special meeting of the shareholders of the Company. The shareholders calling a meeting are required to submit a request setting forth in writing, as to each holder and each matter proposed to be brought before the special meeting, the following, among other things, (i) a description of the proposal and the reasons for conducting such business at the meeting, together with the text of the proposal or business (including the text of any resolutions proposed for consideration), (ii) the name and address of the shareholder, the beneficial owner on whose behalf the proposal is made and any other shareholders supporting such proposal, (iii) certain interests and relationships of the shareholder and beneficial owner in or with the Company, including all forms of ownership interests, (iv) any material interests of the shareholder and beneficial owner in the proposal, (v) a statement that the shareholder intends to appear in person or by proxy at the special meeting and (vi) a description of agreements and understandings between the shareholder, the beneficial owner and any other person in connection with such proposal. The information required in the notice must be updated at various times as provided in the Amended By-Laws.

Voting of Shares. The Amended By-Laws clarify that the voting rights of the shares of any class or series of capital stock of the Company other than common stock shall be as is specified in the Company’s Amended and Restated Certificate of Formation (as amended from time to time, the “Certificate of Formation”). The By-Laws were also amended such that the prohibition on voting of treasury shares of the Company does not preclude the Company from voting shares of its capital stock held or controlled by the Company in a fiduciary capacity or for which the Company otherwise exercises voting power in a fiduciary capacity.

Decisions at Meetings of Shareholders (Other than Director Elections). The Amended By-Laws clarify that, in general, at a meeting of the shareholders at which quorum is present, the affirmative vote of a majority of the shares entitled to vote on, and who voted for or against, will decide any matter brought before a meeting of the shareholders, other than the election of directors or a matter for which a different shareholder approval requirement is required under the Certificate of Formation, the By-Laws or applicable law. The Amended By-Laws further provide that, in the case of any proposal for shareholder action properly made by a shareholder pursuant to Rule 14a-8 under the Securities Exchange Act 1934 (the “Exchange Act”), the affirmative vote of the holders of a majority of the shares entitled to vote on, and who voted for or against or abstained from voting on, the matter will be required for approval of such matter.

Advance Notice of Shareholder Proposals Other than Director Nominees. The Amended By-Laws set forth the procedures for presenting a shareholder proposal, other than the nomination of directors, at an annual meeting of the shareholders. For shareholder proposals to be properly brought before an annual meeting, (i) the shareholder bringing such proposal must be a shareholder of record at the time of giving notice of such proposal and be entitled to vote at the annual meeting and (ii) the proposal must comply with the advance notice procedures described below. To be timely, such shareholder’s notice generally must be delivered to the Secretary of the Company at the principal executive offices of the Company not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the anniversary of the previous annual meeting. For the Company’s 2013 Annual Meeting of Shareholders, such notice must be delivered not earlier than the close of business on October 12, 2012 and not later than the close of business on November 11, 2012.

The notice must set forth as to each matter proposed to be brought before the annual meeting (i) a description of the proposal and the reasons for conducting such business at the meeting, together with the text of the proposal or business (including the text of any resolutions proposed for consideration), (ii) the name and address of the shareholder, the beneficial owner on whose behalf the proposal is made and any other shareholders supporting such proposal, (iii) certain interests and relationships of the shareholder and beneficial owner in or with the Company, including all forms of ownership interests, (iv) any material interests of the shareholder and beneficial owner in the proposal, (v) a statement that the shareholder intends to appear in person or by proxy at the meeting and (vi) a description of agreements and understandings between the shareholder, the beneficial owner and any other person in connection with such proposal. The information required in the notice must be updated at various times as provided in the Amended By-Laws.

Advance Notice of Shareholder Proposals for Director Nominees. The Amended By-Laws set forth the procedures for shareholder nominations in director elections. For shareholder nominations to be properly brought before an annual meeting or a special meeting at which directors are to be elected, the shareholder making such nomination must be a shareholder of record at the time of giving notice of such nomination and be entitled to vote at the meeting and the proposal must comply with the advance notice procedures. To be timely with respect to an annual meeting, such shareholder’s notice must be delivered to, or mailed and received at, the principal executive offices of the Company not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the first anniversary of the annual meeting date of the immediately preceding annual meeting. For the Company’s 2013 Annual Meeting of Shareholders, such notice must be delivered not earlier than the close of business on October 12, 2012 and not later than the close of business on November 11, 2012. To be timely with respect to a special meeting, such shareholder’s notice must be delivered to, or mailed and received at, the principal executive offices of the Company not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the scheduled special meeting date; provided, however, that if less than 100 days’ prior notice or public disclosure of the scheduled meeting date is given or made, notice by such shareholder, to be timely, must be so delivered or received not later than the close of business on the 10th day following the earlier of the day on which the notice of such meeting was mailed to shareholders of the Corporation or the day on which such public disclosure was made.

In each case, the notice must set forth, among other things, (i) each proposed nominee’s name, age, business address and residence address, (ii) the principal occupation or employment of such person, (iii) any other information that would be required to be disclosed in a proxy statement or other filing in accordance with the Section 14 of the Exchange Act, (iv) a description of all direct and indirect compensation during the past three years and any other material relationships between the shareholder, the beneficial owner on whose behalf the nomination is made, each proposed nominee and certain related persons, (v) the name and address of the shareholder, the beneficial owner and any other shareholders supporting such nomination, (vi) certain interests and relationships of the shareholder, the beneficial owner and

the proposed nominee in or with the Company, including all forms of ownership interests, (vii) a statement that the shareholder intends to appear in person or by proxy at the meeting and (viii) a description of agreements and understandings between the shareholder, the beneficial owner, the proposed nominee and any other person in connection with such nomination. The information required in the notice must be updated at various times as provided in the Amended By-Laws.

The Amended By-Laws also require that director nominees complete a written questionnaire in a form provided by the Company and make certain representations to the Company relating to voting commitments, compensation and other economic arrangements and future compliance with the Company’s corporate governance and other policies and guidelines applicable to directors.

Other Provisions. The Amended By-Laws make various procedural and other changes with respect to meetings of stockholders and directors and other matters, including changes to conform various provisions of the By-Laws to the Texas Business Organizations Code.

The foregoing description of the Amended By-Laws is a summary only and is qualified in its entirety by reference to the full and complete text of the Amended By-laws attached as Exhibit 3.1 to this Current Report on Form 8-K. All of the changes approved by the Board are shown in the marked version comparing the Amended By-Laws to the Company’s by-laws as in effect immediately prior to such Board approval filed as Exhibit 3.2 to this Current Report on Form 8-K.

Item 9.01

Financial Statements and Exhibits.

(d)

Exhibits.

3.1

By-Laws of Atwood Oceanics, Inc., effective May 24, 2012.

3.2

Marked comparison of the By-Laws.

10.1

Form of Executive Change of Control Agreement.

10.2

First Amendment, dated as of May 24, 2012, to the Atwood Oceanics, Inc. Salary Continuation Plan (formerly known as the Restated Executive Life Insurance Plan).

10.3

Form of Salary Continuation Agreement.

SIGNATURE

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.


ATWOOD OCEANICS, INC.

By:		/s/ Mark L. Mey
		Mark L. Mey
		Senior Vice President

Date: May 30, 2012

EX-3.1 2 d360398dex31.htm BY-LAWS By-Laws

Exhibit 3.1

BY-LAWS OF

ATWOOD OCEANICS, INC.

MAY 24, 2012

TABLE OF CONTENTS



ARTICLE I OFFICES		1

Section 1.1	Registered Office	1
Section 1.2	Other Offices	1

ARTICLE II SHAREHOLDERS		1

Section 2.1	Meetings	1
Section 2.2	Annual Meeting	1
Section 2.3	Special Meetings	1
Section 2.4	Notices of Shareholders’ Meetings	4
Section 2.5	Quorum of Shareholders	5
Section 2.6	Adjournments of Annual and Special Meetings of the Shareholders	5
Section 2.7	Meetings of the Shareholders	5
Section 2.8	Attendance and Proxies	5
Section 2.9	Voting of Shares	6
Section 2.10	Voting of Shares Owned by Another Corporation	6
Section 2.11	Shares Held by Fiduciaries, Receivers, Pledgees	6
Section 2.12	Decisions at Meetings of Shareholders	7
Section 2.13	Shareholder Proposals (Other than Director Nominations)	7
Section 2.14	List of Shareholders	10
Section 2.15	Action Without Meeting	10
Section 2.16	Telephone or Remote Communications	10
Section 2.17	Record Date	11

ARTICLE III BOARD OF DIRECTORS		11

Section 3.1	Board of Directors	11
Section 3.2	Number of Directors	11
Section 3.3	Election and Term	11
Section 3.4	Resignation	11
Section 3.5	Vacancy and Increase	12
Section 3.6	Removal	12
Section 3.7	Nomination of Directors	12
Section 3.8	Offices and Records	15
Section 3.9	Meeting of Directors	15
Section 3.10	Regular Meetings	15
Section 3.11	Special Meetings	16
Section 3.12	Notice	16
Section 3.13	Business to be Transacted	16
Section 3.14	Quorum - Adjournment if Quorum is not Present	16
Section 3.15	Action Without Meeting	17
Section 3.16	Compensation	17
Section 3.17	Order of Business	17
Section 3.18	Presumption of Assent	17



ARTICLE IV OFFICERS’ AND DIRECTORS’ SERVICES, CONFLICTING INTERESTS AND INDEMNIFICATION		17

Section 4.1	Services	18
Section 4.2	Interested Directors and Officers	18
Section 4.3	Indemnification and Expense Advances	19
Section 4.4	Rights Not Exclusive	19
Section 4.5	Powers Not Exclusive	19
Section 4.6	Applicability	19
Section 4.7	Insurance	19

ARTICLE V COMMITTEES OF DIRECTORS		19

Section 5.1	Committees of Directors	19

ARTICLE VI OFFICERS		20

Section 6.1	Principal Officers	20
Section 6.2	Additional Officers	20
Section 6.3	Terms of Offices	20
Section 6.4	Removal	20
Section 6.5	Vacancies	20
Section 6.6	Powers and Duties of Officers	20
Section 6.7	Chairman of the Board	21
Section 6.8	The President	21
Section 6.9	Vice Presidents	21
Section 6.10	Treasurer	21
Section 6.11	Assistant Treasurers	22
Section 6.12	Secretary	22
Section 6.13	Assistant Secretaries	22

ARTICLE VII BOOKS, DOCUMENTS AND ACCOUNTS		22

Section 7.1	Books, Documents and Accounts	23

ARTICLE VIII CAPITAL STOCK		23

Section 8.1	Stock Certificates	23
Section 8.2	Transfers	23
Section 8.3	Registered Holders	24
Section 8.4	New Certificates	24
Section 8.5	Dividends	24
Section 8.6	Record Dates and Closing of Transfer Books	24
Section 8.7	Regulations	25

ARTICLE IX MISCELLANEOUS PROVISIONS		25

Section 9.1	Fiscal Year	25


Section 9.2	Seal	25
Section 9.3	Notice	25
Section 9.4	Waiver of Notice	26
Section 9.5	Resignations	26
Section 9.6	Telephone and Similar Meetings	26
Section 9.7	Securities of Other Corporations	27
Section 9.8	Depositories	27
Section 9.9	Signing of Checks, Notes, etc	27
Section 9.10	Persons	27
Section 9.11	Laws and Statutes	27
Section 9.12	Headings	27
ARTICLE X AMENDMENTS		28

Section 10.1	Amendment of By-Laws	28

iii

BY-LAWS OF

ATWOOD OCEANICS, INC.

ARTICLE I

OFFICES

Section 1.1 Registered Office. Until the Board of Directors otherwise determines, the registered office and registered agent of Atwood Oceanics, Inc., a Texas corporation (the “Corporation”), will be as set forth in the Corporation’s Amended and Restated Certificate of Formation (as amended from time to time, the “Certificate of Formation”). The Corporation may change its registered office, registered agent, or both by filing a statement of change with the Secretary of State of the State of Texas.

Section 1.2 Other Offices. The Corporation may also have offices at such other places, both within or without the State of Texas, as the Board of Directors may, by resolution, from time to time determine or the business of the Corporation may require.

ARTICLE II

SHAREHOLDERS

Section 2.1 Meetings. All meetings of the shareholders will be held at such time and place, within or outside the State of Texas, as shall be designated by the Board of Directors or as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. The Board of Directors may determine that any meeting may be held solely by means of remote communication in accordance with Texas law.

Section 2.2 Annual Meeting. An annual meeting of the shareholders shall be held for the purpose of electing directors and for the transaction of any and all such other business as may properly be brought before or submitted to the meeting. At the annual meeting of the shareholders, only such business shall be conducted as shall have been properly brought before the annual meeting as set forth in Section 2.13 and Section 3.7 hereof.

Section 2.3 Special Meetings. Special meetings of the shareholders (unless otherwise prescribed by law, the Certificate of Formation or these By-Laws) may be called by the Board of Directors, the Chairman of the Board or the President. Special meetings of shareholders shall be called by the President or the Secretary of the Corporation on the written request in proper form of the holders of not less than 10% of all the shares of capital stock of the Corporation entitled to vote at such meeting.

To be in proper form, such request by the requisite holders shall set forth as to each such holder and each matter proposed to be brought before the special meeting (i) a description of the proposal and the reasons for conducting such business at the special meeting, together with the text of the proposal or business (including the text of any resolutions proposed for consideration), (ii) the name and address of such shareholder, as they appear on the Corporation’s books, and of the beneficial owner, if any, on whose behalf the proposal is made and the name and address of any other shareholders known by such shareholder to be supporting such business or proposal, (iii) any Disclosable Interests of such shareholder and such beneficial owner, if any, (iv) any material interest of such shareholder and beneficial owner, if any, in such business or proposal, (v) a representation that such shareholder intends to appear in person or by proxy at the special meeting to bring such business before the meeting and (vi) a description of all agreements, arrangements and understandings between such shareholder and beneficial owner, if any, and any other person or persons (including their names) in connection with such business or proposal by such shareholder. In addition to the requirements of this Section 2.3, each shareholder making such request shall comply with all requirements of applicable law, including all requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to any request to call a special meeting.

Upon receipt of such request and any related notice required by these By-laws in each case in proper form and in accordance with this Section 2.3, the Board of Directors shall set a date for the special meeting, shall set a record date in accordance with Section 2.17, and shall cause an appropriate officer of the Corporation to give the notice required under Section 2.4.

Notwithstanding anything in these By-Laws to the contrary, the President or Secretary shall not be required to call a special meeting pursuant to this Section 2.3 except in accordance with this Section 2.3. If the Board of Directors shall determine that any request to call and hold a special meeting was not properly made in accordance with this Section 2.3, or shall determine that the shareholder or shareholders submitting a request to call the special meeting have not otherwise complied with this Section 2.3, then neither the President nor the Secretary shall be required to call the special meeting, and the Board of Directors shall not be required to set a date or a record date for the meeting or cause the notice thereof to be given.

required to be made as of the record date), and not later than eight business days prior to the date for the special meeting, if practicable (or, if not practicable, on the first practicable date prior to the date for the special meeting) or any adjournment or postponement thereof (in the case of the update and supplement required to be made as of ten business days prior to the special meeting or any adjournment or postponement thereof). In addition, each of such shareholders shall update and supplement such information, and deliver such update and supplement to the principal executive offices of the Corporation, promptly following the occurrence of any event that materially changes the information provided or required to be provided pursuant to this Section 2.3.

Except in accordance with this Section 2.3, shareholders shall not be permitted to propose business to be brought before a special meeting of the shareholders. Shareholders who nominate persons for election to the board of directors at a special meeting at which directors are to be elected must also comply with the requirements set forth in Section 3.7.

For purposes of these By-laws:

(i) a “Derivative Instrument” means 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 capital stock of the Corporation or with a value derived in whole or in part from the price, value or volatility of any class or series of shares of capital stock of the Corporation, any “call equivalent position” or “put equivalent position” (as such terms are defined in Rule 16a-1(b) under the Exchange Act) that is, directly or indirectly, held or maintained by such shareholder and beneficial owner, if any, with respect to any shares of any class or series of capital stock of the Corporation (including any security or instrument that would not otherwise constitute a derivative security for purposes of such definitions as a result of any feature that would make any conversion, exercise or similar right or privilege of such security or instrument becoming determinable only at some future date or upon the happening of a future occurrence, in which case the determination of the amount of securities into which such security or instrument would be convertible or exercisable shall be made assuming that such security or instrument is immediately convertible or exercisable at the time of such determination) or any other derivative or synthetic arrangement having characteristics of a long position in, or a short position with respect to, any class or series of shares of capital stock of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of capital stock of the Corporation or otherwise; and

short interest of such person in any security of the Corporation (for purposes of this Section 2.3, Section 2.13 and Section 3.7, 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), (5) any rights to dividends on the shares of capital stock of the Corporation owned beneficially by such person that are separated or separable from the underlying shares of capital stock of the Corporation, (6) any proportionate interest in shares of capital stock of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner and (7) any performance-related fees (other than an asset-based fee) that such person is entitled to based on any increase or decrease in the value of shares of capital stock of the Corporation or Derivative Instruments, if any, as of the date of such notice, including, without limitation, for purposes of clauses (A)(1) through (A)(7) above, any of the foregoing held by members of such person’s immediate family sharing the same household, (B) any material pending or threatened legal proceeding in which such person is a party or material participant involving the Corporation or any of its officers or directors, or any affiliate of the Corporation, (C) any other material relationship between such person, on the one hand, and the Corporation, any affiliate of the Corporation or any principal competitor of the Corporation, on the other hand, (D) any direct or indirect material interest in any material contract or agreement of such person 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) and (E) any other information relating to such person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for the proposal or the election of directors in a contested election, as applicable, or would otherwise be required, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder.

Section 2.4 Notices of Shareholders’ Meetings. Written or printed notice stating the place, day and hour of any meeting of the shareholders, the means of any remote communications by which shareholders may be considered present and may vote at the meeting and, in case of a special meeting, the purposes for which the meeting is called (which may include, in the case of any special meeting called at the written request of shareholders pursuant to the provisions of Section 2.3, any purpose or purposes (in addition to the purpose or purposes stated by the requesting shareholders pursuant to Section 2.3) as the Board of Directors may determine) will be delivered not less than ten (10) days nor more than sixty (60) days before the date of the meeting. The notice will be delivered in person, by electronic transmission, or by mail at the direction of the President, a Vice President, the Secretary, or any other officer or person calling the meeting to each shareholder of record entitled to vote at the meeting. If mailed, the notice will be deemed delivered when deposited in the United States mail, addressed to the shareholder at the shareholder’s address as it appears on the stock transfer books of the Corporation, with postage prepaid. If transmitted by facsimile or electronic message, the notice will be deemed delivered when the facsimile or electronic message is successfully transmitted.

Section 2.6 Adjournments of Annual and Special Meetings of the Shareholders. If, however, a quorum shall not be present or represented at any meeting of the shareholders, the shareholders entitled to vote thereat, present in person or represented by proxy, may adjourn the meeting from time to time, without notice (other than announcement at the meeting), until a quorum shall be present or represented. When a quorum is assembled for such an adjourned meeting, any business may be transacted which might have been transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.

Section 2.7 Meetings of the Shareholders. The President of the Corporation, or in the event of his absence or omission or refusal to so act, a Vice President of the Corporation, shall call each meeting of the shareholders to order and shall act as Chairman of such meeting. If for any reason whatever, neither the President nor a Vice President of the Corporation acts or will act as the Chairman of the meeting of the shareholders, then the shareholders present, in person or by proxy, and entitled to vote thereat may by majority vote appoint a Chairman who shall act as Chairman of the meeting.

The Secretary of the Corporation, or in the event of his absence, omission or refusal to act, an Assistant Secretary, shall act as Secretary of each meeting of the shareholders. If for any reason whatever, neither the Secretary nor an Assistant Secretary acts or will act as Secretary of the meeting of shareholders, then the Chairman of the meeting or, if he fails to do so, the shareholders present, either in person or by proxy, and entitled to vote thereat may by majority vote appoint any person to act as Secretary of the meeting.

Section 2.8 Attendance and Proxies. At any meeting of the shareholders, every shareholder having the right to vote will be entitled to vote in person or by proxy executed in writing by the shareholder and bearing a date not more than eleven months before the meeting, unless the proxy provides for a longer period. A telegram, telex, cablegram, or other form of electronic transmission, including telephonic transmission, by the shareholder, or a photographic, photostatic, facsimile, or similar reproduction of a writing executed by the shareholder, is considered an execution in writing for purposes of this Section 2.8. Any electronic transmission must contain or be accompanied by

information from which it can be determined that the transmission was authorized by the shareholder to the extent required by applicable law. Each proxy will be revocable unless expressly provided 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.

Section 2.9 Voting of Shares. At each meeting of the shareholders, each shareholder shall be entitled to such number of votes, in person or by proxy, for each share having voting power held by such shareholder, as is specified in the Certificate of Formation (including the resolution of the Board of Directors (or a committee thereof) creating such shares), except to the extent that the voting rights of the shares of any class or series are limited or denied by the Certificate of Formation and except that each share of common stock, par value $1.00 per share, of the Corporation shall be entitled to one vote per share. Treasury shares and shares of the Corporation’s own stock owned by another corporation the majority of the voting stock of which is owned or controlled by the Corporation shall not be voted, directly or indirectly, at any meeting, and shall not be counted in determining the total number of outstanding shares at any given time; provided that the foregoing shall not preclude the Corporation from voting shares of its capital stock held or controlled by the Corporation in a fiduciary capacity or for which the Corporation otherwise exercises voting power in a fiduciary capacity.

At any election for directors of the Corporation, each and every shareholder entitled to vote may cumulate his votes and give one candidate a number of votes equal to the number of directors to be elected, multiplied by the number of votes to which his shares are entitled; or each shareholder may distribute his votes on the same principle among as many candidates for directors as the shareholder thinks fit.

Any shareholder who intends to cumulate his votes must give written notice of this intention to the Secretary of the Corporation on or before the day preceding the election at which the shareholder intends to cumulate his votes.

The candidates for directors receiving the highest number of votes, up to the number of directors to be elected, are elected.

Section 2.10 Voting of Shares Owned by Another Corporation. Shares of stock of this Corporation standing in the names of another corporation, domestic or foreign, on the books and records of this Corporation and having voting rights may be voted by such officer, agent or proxy as the By-Laws of such other corporation may authorize, or, in the absence of such authorization, as the Board of Directors of such other corporation may determine, subject to such provisions of the Texas Business Organizations Code as may be applicable in any instance.

Section 2.11 Shares Held by Fiduciaries, Receivers, Pledgees. Shares held by an administrator, executor, guardian, or conservator may be voted by him so long as such shares forming a part of an estate are in the possession and forming a part of the estate being served by him, either in person or by proxy, without a transfer of such shares into his

name. Shares standing in the name of a trustee may be voted by him, either in person or by proxy, but no trustee shall be entitled to vote shares held by him unless such share shall have been transferred into his name as trustee. Shares standing in the name of a receiver on the books and records of this Corporation may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without such shares being transferred into his name if appropriate authority so to do be contained in an appropriate order of the court by which such receiver was appointed. A shareholder whose shares are pledged shall be entitled to vote such shares until such shares have been transferred on the books and records of the Corporation into the name of the pledgee, unless in the transfer by the pledgor on the books and records of the Corporation, he shall have expressly empowered the pledgee to vote such shares, and thereafter the pledgee shall be entitled to vote the share so transferred.

Section 2.12 Decisions at Meetings of Shareholders. When a quorum is present at any meeting, the affirmative vote of the holders of a majority of the shares entitled to vote on, and who voted for or against, the matter shall decide any matter brought before such meeting, other than the election of directors or a matter for which the affirmative vote of the holders of a specified portion of the shares entitled to vote is required by the Texas Business Organizations Code, and shall be the act of the shareholders, unless otherwise provided by the Certificate of Formation or these By-Laws, or by resolution of the Board of Directors in accordance with the Texas Business Organizations Code. In the case of a matter submitted for a vote of the shareholders as to which a shareholder approval requirement is applicable under the shareholder approval policy of any stock exchange or quotation system on which the capital stock of the Corporation is traded or quoted, the requirements of Rule 16b-3 under the Exchange Act or any provision of the Internal Revenue Code, in each case for which no higher voting requirement is specified by the Texas Business Organizations Code, the Certificate of Formation or these By-Laws, the vote required for approval shall be the requisite vote specified in such shareholder approval policy, Rule 16b-3 or Internal Revenue Code provision, as the case may be (or the highest such requirement if more than one is applicable). In the case of any proposal for shareholder action properly made by a shareholder pursuant to Rule 14a-8 under the Exchange Act, the vote required for approval shall be the affirmative vote of the holders of a majority of the shares entitled to vote on, and who voted for or against or abstained from voting on, the matter.

All voting shall be viva voce, except that upon the determination of the officer or person presiding at the meeting, voting on any question, matter or business at such meeting shall be by ballot. In the event any business, question or matter is so voted upon by ballot, then each ballot shall be signed by the shareholder voting or by his proxy and shall state the number of shares so voted.

Section 2.13 Shareholder Proposals (Other than Director Nominations). At an annual meeting of shareholders of the Corporation, only such business shall be conducted, and only such proposals shall be acted upon, as shall have been properly brought before such annual meeting. To be properly brought before an annual meeting, business or proposals (other than any nomination of directors of the Corporation, which is governed by Section 3.7 hereof) must (i) be specified in the notice relating to the meeting (or any supplement

thereto) given by or at the direction of the Board of Directors in accordance with Section 2.4 hereof, (ii) otherwise be properly brought before the annual meeting by or at the direction of the Board of Directors or (iii) be properly brought before the meeting by a shareholder of the Corporation who (A) is a shareholder of record at the time of the giving of such shareholder’s notice provided for in this Section 2.13 and on the record date for the determination of shareholders entitled to vote at such annual meeting, (B) shall be entitled to vote at the annual meeting and (C) complies with the requirements of this Section 2.13, and otherwise be proper subjects for shareholder action and be properly introduced at the annual meeting. Clause (iii) of the immediately preceding sentence shall be the exclusive means for a shareholder to submit business or proposals (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in the notice relating to the meeting (or any supplement thereto) given by or at the direction of the Board of Directors in accordance with Section 2.4 hereof) before an annual meeting of shareholders of the Corporation.

For a proposal to be properly brought before an annual meeting by a shareholder of the Corporation pursuant to these provisions, in addition to any other applicable requirements, such shareholder must have given timely advance notice thereof in writing to the Secretary of the Corporation. To be timely, such shareholder’s notice must be delivered to, or mailed and received at, the principal executive offices of the Corporation not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the first anniversary of the annual meeting date of the immediately preceding annual meeting; provided, however, that if the scheduled annual meeting date is called for a date that is not within 30 days before or after such anniversary date, notice by such shareholder, to be timely, must be so delivered or received not earlier than the close of business on the 120th day and not later than the close of business on the later of the 90th day prior to the date of such annual meeting or, if less than 100 days’ prior notice or public disclosure of the scheduled meeting date is given or made, the 10th day following the earlier of the day on which the notice of such meeting was mailed to shareholders of the Corporation or the day on which such public disclosure was made. In no event shall any adjournment, postponement or deferral of an annual meeting or the announcement thereof commence a new time period for the giving of a timely notice as described above.

Any such shareholder’s notice to the Secretary of the Corporation shall set forth as to each matter such shareholder proposes to bring before the annual meeting (i) a description of the proposal desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, together with the text of the proposal or business (including the text of any resolutions proposed for consideration), (ii) the name and address of such shareholder proposing such business, as they appear on the Corporation’s books, and of the beneficial owner, if any, on whose behalf the proposal is made and the name and address of any other shareholders known by such shareholder to be supporting such business or proposal, (iii) any Disclosable Interests of such shareholder and such beneficial owner, if any, (iv) any material interest of such shareholder and beneficial owner, if any, in such business or proposal, (v) a representation that such shareholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting and (vi) a description of all agreements, arrangements and understandings between such shareholder and beneficial owner, if any, and any other person or persons (including their names) in connection with such business or proposal by such shareholder.

A shareholder providing notice of business proposed to be brought before an annual meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.13 shall be true and correct as of the record date for the meeting and as of the date that is ten business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received at, the principal executive offices of the Corporation not later than five business days after the record date for the meeting (in the case of the update and supplement required to be made as of the record date), and not later than eight business days prior to the date for the meeting, if practicable (or, if not practicable, on the first practicable date prior to the date for the meeting) or any adjournment or postponement thereof (in the case of the update and supplement required to be made as of ten business days prior to the meeting or any adjournment or postponement thereof). In addition, a shareholder providing notice of business proposed to be brought before an annual meeting shall update and supplement such notice, and deliver such update and supplement to the principal executive offices of the Corporation, promptly following the occurrence of any event that materially changes the information provided or required to be provided in such notice pursuant to this Section 2.13.

The President of the Corporation or, if he is not presiding, the presiding officer of the meeting of shareholders of the Corporation shall determine whether the requirements of this Section 2.13 have been met with respect to any shareholder proposal. If the President or the presiding officer determines that any shareholder proposal was not made in accordance with the terms of this Section 2.13, he shall so declare at the meeting and any such proposal shall not be acted upon at the meeting.

For purposes of this Section 2.13 and Section 3.7, “public disclosure” shall mean disclosure in a press release issued by the Corporation or in a document publicly filed or furnished by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.

At a special meeting of shareholders of the Corporation, only such business shall be conducted, and only such proposals shall be acted upon, as shall have been properly brought before such special meeting. To be properly brought before such a special meeting, business or proposals (other than any nomination of directors of the Corporation, which is governed by Section 3.7 hereof) must (i) be specified in the notice relating to the meeting (or any supplement thereto) given in accordance with Section 2.3 and Section 2.4 hereof or (ii) constitute matters incident to the conduct of the meeting as the President of the Corporation or the presiding officer of the meeting shall determine to be appropriate.

This Section 2.13 is expressly intended to apply to any business proposed to be brought before an annual or special meeting of shareholders other than any proposal properly made pursuant to Rule 14a-8 under the Exchange Act and included in the notice of meeting given by or at the direction of the Board of Directors. In addition to the foregoing provisions of this Section 2.13, a shareholder of the Corporation 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 2.13. Nothing in this Section 2.13 shall be deemed to affect any rights (i) of shareholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders of any series of preferred stock if and to the extent provided for under law, the Certificate of Formation or these By-Laws.

Section 2.14 List of Shareholders. The officer or agent who has charge of the stock transfer books of the Corporation shall prepare and make, at least eleven (11) days before each meeting of shareholders, a complete list of the shareholders entitled to vote at such meeting or any adjournment thereof, arranged in alphabetical order, showing the address and the type and number of shares held by each shareholder and number of votes to which each shareholder is entitled (if different from the number of shares). Such list shall be kept on file at the registered office or the principal place of business of the Corporation and shall be open to inspection by any shareholder at any time during usual business hours, for a period of at least ten (10) days prior to such meeting.

Alternatively, the list of the shareholders may be kept on a reasonably accessible electronic network, if the information required to gain access to the list is provided with the notice of the meeting. The Corporation is not required to include any electronic contact information of any shareholder on the list. If the Corporation elects to make the list available on an electronic network, the Corporation shall take reasonable steps to ensure that the information is available only to shareholders of the Corporation. Such list shall also be produced and kept open at the time and place of such meeting during the whole time thereof, and may be inspected by any shareholder who is present. If the meeting is held by means of remote communication, the list must be open to the examination of any shareholder for the duration of the meeting on a reasonably accessible electronic network, and the information required to access the list must be provided to shareholders with the notice of the meeting. The original stock transfer books shall be prima facie evidence as to who are the shareholders entitled to examine such list or transfer book or to vote at any such meeting of shareholders.

Section 2.15 Action Without Meeting. The shareholders of the Corporation may take action without holding a meeting, providing notice or taking a vote if each shareholder entitled to vote on the action signs a written consent or consents stating the action taken.

Section 2.16 Telephone or Remote Communications. Shareholders may participate in and hold a shareholders’ meeting by means of conference telephone or similar communications equipment, or another suitable electronic communications system, including videoconferencing technology or the Internet, or any combination thereof, if the telephone or other equipment or system permits each person participating in the meeting to communicate with all other persons participating in the meeting. Participation in such a meeting shall constitute presence in person at such meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened, if (i) the Corporation implements reasonable measures to verify that each person considered present and permitted to vote at the meeting by means of remote communication is a shareholder; (ii) the Corporation implements reasonable measures to provide the shareholders at the meeting by means of remote communication a

reasonable opportunity to participate in the meeting and to vote on matters submitted to the shareholders, including an opportunity to read or hear the proceedings of a meeting substantially concurrently with the proceedings; and (iii) the Corporation maintains a record of any shareholder vote or other action taken at the meeting by means of remote communication.

Section 2.17 Record Date. The Board of Directors shall have the power to close the stock transfer books of the Corporation or, in lieu thereof, to fix a record date for the determination of the shareholders entitled to notice of or to vote at any meeting of the shareholders and at any adjournment or adjournments thereof and to fix a record date for any other purpose or purposes as provided in Section 8.6 of these By-Laws.

ARTICLE III

BOARD OF DIRECTORS

Section 3.1 Board of Directors. The business, property and affairs of the Corporation shall be managed and controlled by the Board of Directors and, subject to such restrictions, if any, as may be imposed by law, the Certificate of Formation or by these By-Laws, the Board of Directors may, and are fully authorized to, exercise all the powers of the Corporation. Directors need not be residents of the State of Texas or shareholders of the Corporation.

In addition to the powers and authority expressly conferred on the Board of Directors by law, the Certificate of Formation or these By-Laws, the Board may exercise all the powers of the Corporation and do all such lawful acts and things as may be done by the Corporation which are not by the laws of the State of Texas, the Certificate of Formation or these By-Laws directed or required to be exercised or done by the shareholders.

Section 3.2 Number of Directors. Within any limits specified in the Certificate of Formation, the number of directors shall be established, and may be increased or decreased from time to time, by resolution of the Board of Directors of the Corporation.

Section 3.3 Election and Term. Except as otherwise provided in Section 3.5, all directors (the number of which shall be established by the Board of Directors as provided by Section 3.2) shall be elected at each annual meeting to hold office for one year and until their successors are elected and qualified.

Section 3.4 Resignation. Any director of the Corporation may resign at any time as provided in Section 9.5 of these By-Laws.

Section 3.5 Vacancy and Increase. Any vacancy or vacancies occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the Board of Directors. A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office and until his successor shall have been elected and qualified. In case of any increase in the number of directors, the additional director or directors shall be elected at either an annual meeting or at a special meeting of the shareholders called for that purpose.

Section 3.6 Removal. The directors of the Corporation, and each of them, may be removed from office from time to time and at any time with or without cause, by the shareholders entitled to vote, at any meeting thereof at which a quorum is present, by the vote of a two-thirds majority of the votes of the shareholders present in person or by proxy and entitled to vote thereat; and any vacancy or vacancies in the Board of Directors resulting therefrom may be filled by the remaining directors, though less than a quorum.

Section 3.7 Nomination of Directors. (a) Subject to such rights of holders of shares of one or more outstanding series of preferred stock of the Corporation to elect one or more directors of the Corporation under circumstances as shall be provided by or pursuant to the Certificate of Formation, only persons who are nominated in accordance with the procedures set forth in this Section 3.7 shall be eligible for election as, and to serve as, directors of the Corporation. Nominations of persons for election to the Board of Directors may be made only at a meeting of the shareholders of the Corporation at which directors of the Corporation are to be elected (as specified in the notice of meeting in accordance with Section 2.3 and Section 2.4 of these By-Laws) (i) by or at the direction of the Board of Directors or (ii) by any shareholder of the Corporation who is a shareholder of record at the time of the giving of such shareholder’s notice provided for in this Section 3.7 and on the record date for the determination of shareholders entitled to vote at such meeting, who shall be entitled to vote at such meeting in the election of directors of the Corporation and who complies with the requirements of this Section 3.7. Clause (ii) of the immediately preceding sentence shall be the exclusive means for a shareholder to make any nomination of a person or persons for election as a director of the Corporation at an annual meeting or special meeting. Any such nomination by a shareholder of the Corporation shall be preceded by timely advance notice in writing to the Secretary of the Corporation.

and not later than the close of business on the later of the 90th day prior to the date of such annual meeting or, if less than 100 days’ prior notice or public disclosure of the scheduled meeting date is given or made, the 10th day following the earlier of the day on which the notice of such meeting was mailed to shareholders of the Corporation or the day on which such public disclosure was made; and (2) if the number of directors to be elected to the Board of Directors at such annual meeting is increased and there is no prior notice or public disclosure by the Corporation naming all of the nominees for director or specifying the size of the increased Board of Directors at least 100 days prior to such anniversary date, a shareholder’s notice required by this Section 3.7(a) shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the principal executive offices of the Corporation not later than the close of business on the 10th day following the earlier of the day on which the notice of such meeting was mailed to shareholders of the Corporation or the day on which such public disclosure was made. To be timely with respect to a special meeting, such shareholder’s notice must be delivered to, or mailed and received at, the principal executive offices of the Corporation not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the scheduled special meeting date; provided, however, that if less than 100 days’ prior notice or public disclosure of the scheduled meeting date is given or made, notice by such shareholder, to be timely, must be so delivered or received not later than the close of business on the 10th day following the earlier of the day on which the notice of such meeting was mailed to shareholders of the Corporation or the day on which such public disclosure was made. In no event shall any adjournment, postponement or deferral of an annual meeting or special meeting or the announcement thereof commence a new time period for the giving of a shareholder’s notice as described above.

Any such shareholder’s notice to the Secretary of the Corporation shall set forth (i) as to each person whom such shareholder proposes to nominate for election or re-election as a director of the Corporation, (A) the name, age, business address and residence address of such person, (B) the principal occupation or employment of such person, (C) any other 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 of the Corporation in a contested election, or would otherwise be required, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (including, without limitation, the written consent of such person to having such person’s name placed in nomination at the meeting and to serve as a director of the Corporation if elected), and (D) 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 shareholder giving the notice 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 Rule 404 promulgated under Regulation S-K if such shareholder and 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; (ii) the name and address of such shareholder giving the notice, as they appear on the Corporation’s books, and of the beneficial owner, if any, on whose behalf the nomination is made and the name and address of any other shareholders known by such shareholder to be supporting such

nomination; (iii) any Disclosable Interests of such shareholder, such beneficial owner, if any, and the proposed nominee; (iv) a representation that such shareholder intends to appear in person or by proxy at the meeting to nominate the persons named in its notice; (v) a description of all agreements, arrangements and understandings between such shareholder and beneficial owner, if any, and each proposed nominee and any other person or persons (including their names) pursuant to which the nomination(s) are to be made by such shareholder; and (vi) any other information relating to such shareholder, beneficial owner, if any, and nominee that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for election of directors of the Corporation in a contested election, or would otherwise be required, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Any such shareholder’s notice to the Secretary of the Corporation shall also include or be accompanied by, with respect to each nominee for election or reelection to the Board of Directors, a completed and signed questionnaire, representation and agreement required by Section 3.7(b). 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 an independent director of the Corporation or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nominee.

A shareholder providing notice of any nomination proposed to be made at a meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 3.7(a) shall be true and correct as of the record date for the meeting and as of the date that is ten business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received at, the principal executive offices of the Corporation not later than five business days after the record date for the meeting (in the case of the update and supplement required to be made as of the record date), and not later than eight business days prior to the date for the meeting, if practicable (or, if not practicable, on the first practicable date prior to the date for the meeting) or any adjournment or postponement thereof (in the case of the update and supplement required to be made as of ten business days prior to the meeting or any adjournment or postponement thereof). In addition, a shareholder providing notice of any nomination proposed to be made at a meeting shall update and supplement such notice, and deliver such update and supplement to the principal executive offices of the Corporation, promptly following the occurrence of any event that materially changes the information provided or required to be provided in such notice pursuant to this Section 3.7(a).

In addition to the foregoing provisions of this Section 3.7, a shareholder of the Corporation 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 3.7. Nothing in this Section 3.7 shall be deemed to affect any rights of the holders of any series of preferred stock if and to the extent provided for under law, the Certificate of Formation or these By-Laws.

whose behalf the nomination is being made (which questionnaire shall be in the form 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 (A) 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, (B) 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 service or action as a director that has not been disclosed therein, and (C) in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a director of the Corporation, and will comply with all applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation.

(c) The President of the Corporation or, if he is not presiding, the presiding officer of the meeting of shareholders of the Corporation shall determine whether the requirements of this Section 3.7 have been met with respect to any nomination or intended nomination. If the President or the presiding officer determines that any nomination was not made in accordance with the requirements of this Section 3.7, he shall so declare at the meeting and the defective nomination shall be disregarded. In addition to the foregoing provisions of this Section 3.7, a shareholder of the Corporation 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 3.7.

Section 3.8 Offices and Records. The directors may have or establish one or more offices of the Corporation and keep the books and records of the Corporation, except as otherwise provided by statue, in such place or places in the State of Texas or outside the State of Texas, as the Board of Directors may from time to time determine.

Section 3.9 Meeting of Directors. Meetings of the Board of Directors, regular or special, may be held either within or without the State of Texas.

Section 3.10 Regular Meetings. Each newly elected Board of Directors may hold its first meeting for the purpose of organization and the transaction of business, if a quorum is present, immediately after and at the same place as the annual meeting of the shareholders. The Board of Directors shall also meet regularly at such other times as shall be designated by the Board of Directors. No notice of such first meeting or other regular meetings shall be required.

Section 3.11 Special Meetings. Special meetings of the Board of Directors shall be held whenever and wherever called or provided to be held by the President or by any three of the Directors for the time being in office, and at the place, day and hour determined by the officer or the three directors calling or providing for the holding of the particular meeting, in each instance, and such determination may be conclusively evidenced in a call, waiver of notice or by an electronic transmission signed or delivered by such officer or such three directors.

Section 3.12 Notice. The Secretary or an Assistant Secretary shall, but in the event of the absence of the Secretary or an Assistant Secretary or the failure, inability, refusal or omission on the part of the Secretary or an Assistant Secretary so to do, any other officer of the Corporation may, give notice of each special meeting, and of the place, day and hour of the particular meeting, in person or by mail, or by telephone, telegraph, electronic transmission or other means of communication, at least three (3) days before the meeting of each director. The attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

Section 3.13 Business to be Transacted. Neither the business to be transacted at, nor the purpose or purposes of, any regular or special meeting of the Board of Directors need be specified in the notice or any waiver or waivers of notice of such meeting. Any and all business of any nature or character whatsoever may be transacted and action may be taken thereon at any such first meeting or at any other meeting, regular or special, of the Board of Directors. At any meeting at which every director shall be present, even though without any notice, any business may be transacted.

Section 3.14 Quorum—Adjournment if Quorum is not Present. A majority of the number of directors fixed by these By-Laws shall constitute a quorum for the transaction of any and all business, but if at any meeting, regular or special, or any first meeting, of the Board of Directors there be less than a quorum present, a majority of those present, or if only one director be present, then such director, may adjourn the meeting from time to time without notice, other than by announcement at the meeting, until a quorum shall be present at the meeting. A majority of the directors present at any meeting of the Board of Directors, or if only one director be present, then such director, may adjourn any meeting of the Board from time to time without notice, other than by announcement at such meeting of the time and place at which the meeting will reconvene, until the transaction of any and all business submitted or proposed to be submitted to such meeting or any adjournment or adjournments thereof shall have been completed. The act of a majority of the directors present at any meeting of the Board of Directors at which a quorum is in attendance shall constitute the act of the Board of Directors unless the act of a greater number is required by the Certificate of Formation or by these By-Laws.

Section 3.15 Action Without Meeting. Unless otherwise restricted by law or the Certificate of Formation, any action required or permitted to be taken at a meeting of the Board of Directors or of any committee thereof may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed (including by electronic transmission) by all members of the Board of Directors or committee thereof, as the case may be. An electronic transmission of a consent by a director to the taking of an action is considered a signed writing if the transmission contains or is accompanied by information from which it can be determined that the electronic transmission was transmitted by the director and the date on which the director transmitted the electronic transmission. Such consent shall have the same force and effect as a unanimous vote at a meeting of the Board of Directors or the committee, as the case may be, duly called and held.

Section 3.16 Compensation. Directors shall receive such compensation for their services as shall be determined by the Board of Directors. Unless otherwise determined by the Board of Directors, directors who also are employees of the Corporation shall receive no additional compensation for their services as a director of the Corporation.

Section 3.17 Order of Business. At all meetings of the Board of Directors, business shall be transacted in such order as from time to time the Board of Directors may determine. The Chairman of the Board shall preside at all meetings of the Board of Directors, or, in the absence of the Chairman of the Board, a chairman shall be chosen by the Board from among the directors present and such chairman so chosen shall preside at the meeting.

The Secretary of the Corporation, or in his absence, an Assistant Secretary, shall act as Secretary of the meetings of the Board of Directors, but in the absence of the Secretary and an Assistant Secretary, or if for any reason neither acts as Secretary thereof, the chairman of the meeting shall appoint any person of his choice to act, and such person shall act as Secretary at the meeting.

Section 3.18 Presumption of Assent. A director of the Corporation who is present at a meeting of the Board of Directors at which action on any corporate matter is taken shall be presumed to have assented to the action unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the Secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary of the Corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action.

ARTICLE IV

OFFICERS’ AND DIRECTORS’ SERVICES, CONFLICTING INTERESTS AND

INDEMNIFICATION

Section 4.1 Services. No director shall be required to devote his time or any particular portion of his time or render services or any particular services exclusively to this Corporation. Each and every director shall be entirely free to engage, participate and invest in any and all such businesses, enterprises and activities, either similar or dissimilar to the business, enterprise and activities of this Corporation, without breach of duty to this Corporation or to its shareholders and without accountability or liability to this Corporation or to its shareholders in any event or under any circumstances or conditions.

Each and every director shall be entirely free to act for, serve and represent any other corporation or corporations, entity or entities, and any person or persons, in any capacity or capacities, and be or become a director or officer, or both, of any other corporation or corporations, entity or entities, irrespective of whether or not the business, purposes, enterprises and activities, or any of them, thereof be similar or dissimilar to the business, purposes, enterprises and activities, or any of them, of this Corporation, without breach of duty to this Corporation or to its shareholders and without accountability or liability of any character or description to this Corporation or to its shareholders in any event or under any circumstances or conditions.

Section 4.2 Interested Directors and Officers. No contract or transaction between the Corporation and one or more directors or officers, or one or more affiliates or associates of one or more directors or officers, of the Corporation or between the Corporation and an entity or other organization in which one or more directors or officers, or one or more affiliates or associates of one or more directors or officers, of the Corporation is a managerial official or has a financial interest will be void or voidable, notwithstanding any such relationship or interest, if any one of the following conditions is satisfied: (1) the material facts as to such relationship or interest and as to the contract or transaction are disclosed to or known by (A) the Board of Directors or a committee thereof, and the Board of Directors or committee in good faith authorizes the contract or transaction by the approval of the majority of the disinterested directors or committee members, regardless of whether the disinterested directors or committee members constitute a quorum; or (B) the shareholders entitled to vote on the authorization of the contract or transaction, and the contract or transaction is specifically approved in good faith by a vote of the shareholders; or (2) the contract or transaction is fair to the Corporation when the contract or transaction is authorized, approved or ratified by the Board of Directors, a committee thereof or the shareholders. Common or interested directors of the Corporation may be included in determining the presence of a quorum at a meeting of the Board of Directors, or a committee thereof, that authorizes the contract or transaction. A person who has the relationship or interest described in the first sentence of this Section 4.2 may (1) be present at or participate in and, if the person is a director or committee member, may vote at a meeting of the Board of Directors or of a committee thereof that authorizes the contract or transaction; or (2) sign, in the person’s capacity as a director or committee member, a unanimous written consent of the directors or committee members to authorize the contract or transaction.

Section 4.3 Indemnification and Expense Advances. The Corporation is authorized to, and shall, indemnify and advance expenses to directors of the Corporation in the manner prescribed in, and to the maximum extent permissible under, the Texas Business Organizations Code. The Corporation shall indemnify and advance expenses to officers of the Corporation in the same manner and to the same extent that it indemnifies and advances expenses to directors of the Corporation.

Section 4.4 Rights Not Exclusive. The indemnification provided by this Article IV shall not be deemed exclusive of any other rights to which any person in any capacity referred to in Section 4.3 may be entitled under any bylaw, agreement, vote of the shareholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in any other capacity while holding such office. Such indemnification shall continue as to a person who has ceased to act in any capacity referred to in Section 4.3 and shall inure to the benefit of the heirs, executors and administrators of such a person.

Section 4.5 Powers Not Exclusive. The indemnification provided by this Article IV shall not be deemed exclusive of any other power to indemnify or right to indemnification which the Corporation or any person in any capacity referred to in Section 4.3 may have or acquire under the law including, without limitation, the Texas Business Organizations Code, or any amendment thereto or substitute therefor.

Section 4.6 Applicability. The provisions of this Article IV shall be applicable to claims, actions, suits or other proceedings referred to in the Texas Business Organizations Code, made or commenced after the adoption hereof, whether arising from conduct or act or omission occurring before or after the adoption hereof.

Section 4.7 Insurance. The Corporation may, at the discretion of the Board of Directors, purchase and maintain insurance on behalf of the Corporation and any person whom it has power to indemnify pursuant to the Texas Business Organizations Code, the Certificate of Formation, or these By-Laws, or otherwise.

ARTICLE V

COMMITTEES OF DIRECTORS

Section 5.1 Committees of Directors. The Board of Directors may designate from among its members an Executive Committee and one or more other committees, each of which shall have and may exercise all of the authority of the Board of Directors to the extent delegated by the Board of Directors in the resolution designating such committee and permitted by the Texas Business Organizations Code.

Any member of a committee of the Board of Directors may be removed, with or without cause, by the affirmative vote of a majority of the Board of Directors. Vacancies in the membership of a committee (whether by death, resignation, removal or any other manner) may be filled by resolution of the Board of Directors. No notice of any meeting of any committee shall be required, and a majority of the members of the committee shall constitute a quorum for the transaction of business. The designation of such a committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed upon it or him by law.

ARTICLE VI

OFFICERS

Section 6.1 Principal Officers. The officers of the Corporation shall be chosen by the Board of Directors. The officers shall be a President and a Secretary, and such number of Vice Presidents, a Treasurer and such number of Assistant Secretaries and Assistant Treasurers as the Board may from time to time determine or elect. Any person may hold two or more offices at the same time, except that the President and Secretary shall not be the same person.

Section 6.2 Additional Officers. The Board of Directors may appoint such other officers, agents and factors as shall deem necessary.

Section 6.3 Terms of Offices. Each officer shall hold his office until his successor shall have been duly elected and qualified or until his death or until he shall resign or shall have been removed in the manner hereinafter provided.

Section 6.4 Removal. Any officer or agent elected or appointed by the Board of Directors may be removed, with or without cause, at any time by a majority vote of the Board of Directors, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment of an officer or agent shall not of itself create contract rights.

Section 6.5 Vacancies. A vacancy in any office may be filled by the vote of a majority of the Board of Directors then in office for the unexpired portion of the term of such office.

Section 6.6 Powers and Duties of Officers. The officers so chosen shall perform the duties and exercise the powers expressly conferred or provided for in these By-Laws, as well as the usual duties and powers incident to such office, and such other duties and powers as may be assigned to them from time to time by the Board of Directors or by the President.

Section 6.7 Chairman of the Board. The Board of Directors may select from among its members a Chairman of the Board who may, if so selected, preside at all meetings of the Board of Directors and approve the minutes of all proceedings thereat, and he shall be available to consult with and advise the officers of the Corporation with respect to the conduct of the business and affairs of the Corporation. The Board of Directors may designate that the Chairman of the Board be an officer of the Corporation and, in the absence of such designation, the Chairman of the Board shall not be considered an officer.

Section 6.8 The President. The President, subject to the control of the Board of Directors, shall be the chief executive officer of the Corporation and shall have general executive charge, management and control of the affairs, properties and operations of the Corporation in the ordinary course of its business, with all such duties, powers and authority with respect to such affairs, properties and operations as may be reasonably incident to such responsibilities; he may appoint or employ and discharge employees and agents of the Corporation and fix their compensation; he may take, execute, acknowledge and deliver any and all contracts, leases, deeds, conveyances, assignments, bills of sale, transfers, releases and receipts, any and all mortgages, deeds of trust, indentures, pledges, chattel mortgages, liens and hypothecations, and any and all bonds, debentures and notes, and any and all other obligations and encumbrances and any and all other instruments, documents and papers of any kind or character for and on behalf of and in the name of the Corporation, and, with the Secretary or an Assistant Secretary, he may sign all certificates for shares of the capital stock of the Corporation; he shall do and perform such other duties and have such additional authority and powers as from time to time may be assigned to or conferred upon him by the Board of Directors.

statement of his cash account. He shall enter or cause to be entered, punctually and regularly, on the books of the Corporation to be kept by him or under his supervision or direction for that purpose, full and accurate accounts of all moneys received and paid out by, for or on account of the Corporation. He shall at all reasonable times exhibit his books and accounts and other financial records to any director of the Corporation during business hours. He shall have such other powers and duties as may be conferred upon or assigned to him by the Board of Directors. The Treasurer shall perform all acts incident to the position of Treasurer subject always to the control of the Board of Directors. He shall, if required by the Board of Directors, give such bond for the faithful discharge of his duties in such form and amounts as the Board of Directors may require.

Section 6.11 Assistant Treasurers. Each Assistant Treasurer shall have the usual powers and duties pertaining to his office, together with such other powers and duties as may be conferred upon or assigned to him by the Board of Directors. The Assistant Treasurers shall have and exercise the powers of the Treasurer during that officer’s absence or inability to act.

Section 6.12 Secretary. The Secretary (1) shall keep the minutes of all meetings of the Board of Directors and the minutes of all meetings of the shareholders, in books provided for that purpose, (2) shall attend to the giving and serving of all notices, (3) may sign with the President or Vice President in the name of the Corporation and/or attest the signatures of either to all contracts, conveyances, transfers, assignments, encumbrances, authorizations and all other instruments, documents and papers, of any and every description whatsoever, of or executed for or on behalf of the Corporation and affix the seal of the Corporation thereto, (4) may sign with the President or a Vice President all certificates for shares of the capital stock of the Corporation and affix the corporate seal of the Corporation thereto, (5) shall have charge of and maintain and keep or supervise and control the maintenance and keeping the stock certificate books, transfer books and stock ledgers and such other books and papers as the Board of Directors may authorize, direct or provide for, all of which shall at all reasonable times be open to the inspection of any director, upon request, at the office of the Corporation during business hours, (6) shall, in general, perform all the duties incident to the office of Secretary, and (7) shall have such other powers and duties as may be conferred upon or assigned to him by the Board of Directors.

Section 6.13 Assistant Secretaries. Each Assistant Secretary shall have the usual powers and duties pertaining to his office, together with such other powers and duties as may be conferred upon or assigned to him by the Board of Directors or the Secretary. The Assistant Secretaries shall have and exercise the powers of the Secretary during that officer’s absence or inability to act.

ARTICLE VII

BOOKS, DOCUMENTS AND ACCOUNTS

Section 7.1 Books, Documents and Accounts. The Board of Directors shall have power to keep the books, documents and accounts of the Corporation outside of the State of Texas; except that a record of its shareholders, giving the names and addresses of all shareholders and the number and class of shares held by each shall be kept at its registered office or principal place of business, or at the office of its transfer agent or registrar and the original or a duplicate stock ledger shall at all times be kept within the State of Texas.

ARTICLE VIII

CAPITAL STOCK

Section 8.1 Stock Certificates. Shares may be certificated or uncertificated. Uncertificated shares shall be issued in such form and recorded and maintained as shall be approved by the Board of Directors. For certificated shares, the certificates for shares of the capital stock of the Corporation shall be in such form as shall be approved by the Board of Directors. They shall be consecutively numbered and shall be entered in the books of the Corporation as they are issued and shall exhibit the holder’s name and the number of shares. Every holder of stock in the Corporation shall be entitled, but not required, to have a certificate signed by, or in the name of the Corporation by the President, or a Vice President, and the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by him in the Corporation, with the seal of the Corporation or a facsimile thereof impressed or printed thereon. Where any such certificate is countersigned by a transfer agent, or registered by a registrar, either of which is other than the Corporation itself or an employee of the Corporation, the signatures of the President or Vice President and the Secretary or Assistant Secretary upon a certificate may be facsimiles, engraved or printed. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used or placed on any such certificate or certificates shall have ceased to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate is, or such certificates are, issued, such certificate or certificates may nevertheless be issued and delivered by the Corporation as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon was or were such officer or officers at the time of issuance thereof, and with the same effect as if he or they were such officer or officers at the date of issuance thereof.

Section 8.2 Transfers. Stock of the Corporation shall be transferable in the manner prescribed by the laws of the State of Texas and in these By-Laws. Transfers of stock shall be made on the books of the Corporation only by the person named in the certificate, or by his attorney or attorneys-in-fact, legal representative or legal representatives, duly and lawfully authorized in writing, and upon the surrender of the certificate therefor, which shall be cancelled before the new certificate, certificates in the aggregate, for a like number of shares shall be issued.

The Board of Directors may appoint a transfer agent or registrar for each class of stock, and may require all stock certificates to bear the signature of such transfer agent and of such registrar or either of them.

Section 8.3 Registered Holders. The Corporation shall be entitled to treat the person in whose name any share of stock or any warrant, right or option is registered as the owner thereof for all purposes and shall not be bound to recognize any equitable or other claim to, or interest in, such share, warrant, right or option on the part of any other person, whether or not the Corporation shall have notice thereof, save as may be expressly provided otherwise by the laws of the State of Texas.

Section 8.4 New Certificates. The Corporation may, in its sole discretion, issue a new certificate for shares of its stock in the place of any certificate theretofore issued by it, alleged to have been lost or destroyed, and the Board of Directors may, in its discretion, require the owner of the lost or destroyed certificate, or his legal representative or representatives, to give the Corporation such statement under oath or other evidence of such loss or destruction as the Board may desire, and a bond in form, amount and with such surety or sureties as the Board of Directors may prescribe or determine, and sufficient, in the sole judgment of the Board, to indemnify and protect the Corporation against any and all claims, liabilities, costs and expenses that may be made or asserted against it or which it may suffer or incur or pay, on account of the alleged loss of any such certificate or the issuance of such new certificate. A new certificate may be issued without requiring any bond when, in the sole discretion of the Board, it is proper so to do.

Section 8.5 Dividends. The Board of Directors may declare dividends as and when the Board deems expedient and as may be permitted by law and under the provisions of the Texas Business Organizations Code. Before declaring any dividend there may be reserved out of the earned surplus such sum or sums as the Board of Directors, from time to time in the absolute discretion of the directors, deems proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends, or for such other purposes as the Board may deem conducive to the interests of the Corporation, and the Board may abolish any such reserve in the manner in which it was created.

Section 8.6 Record Dates and Closing of Transfer Books. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders, or any adjournment thereof, or entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors of the Corporation may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, sixty (60) days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten (10) days immediately preceding such meeting. In lieu of closing the stock transfer books the Board of Directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than sixty (60) days and, in case of a meeting of shareholders, not less than ten (10) days prior to the date on which the particular action requiring such determination of shareholders is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or

shareholders entitled to receive payment of a dividend, the date on which the notice of the meeting is mailed or the date on which the resolution of the Board of Directors’ declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders.

Section 8.7 Regulations. The Board of Directors shall have power and authority, and may delegate such power and authority to a committee of the Board of Directors or to the officers of the Corporation, to make all such rules and regulations as they may deem expedient concerning the issue, transfer and registration or the replacement for certificates of shares of the capital stock of the Corporation.

ARTICLE IX

MISCELLANEOUS PROVISIONS

Section 9.1 Fiscal Year. The fiscal year of the Corporation shall be such as the Board of Directors shall, by resolution, provide or establish or such as the President shall determine subject to approval of the Board.

Section 9.2 Seal. The seal of the Corporation shall be in such form as the Board of Directors shall prescribe, and may be used by causing it or a facsimile thereof to be impressed, or affixed, or printed, or reproduced or in any other manner.

Section 9.3 Notice. Any notice to directors, shareholders and committee members shall be in writing and may be delivered personally, or by mail to the directors, shareholders or committee members at their respective addresses appearing on the books and share transfer records of the Corporation. Notice to shareholders shall be deemed to be given at the time when the same shall be so delivered or mailed. Notice to directors and committee members may also be given by nationally recognized overnight delivery or courier service, and shall be deemed given when such notice shall be received by the proper recipient or, if earlier, (i) in the case of an overnight delivery or courier service, one (1) day after such notice is sent by such overnight delivery or courier service; (ii) in the case of telegraph, when deposited at a telegraph office for transmission and all appropriate fees therefore have been paid; and (iii) in the case of mailing by U.S. mail, three (3) days after such notice is mailed as described above. On consent of a shareholder, director or committee member, notice from the Corporation may be given to the shareholder, director or committee member by electronic transmission. The shareholder, director or committee member may specify the form of electronic transmission to be used to communicate notice. The shareholder, director or committee member may revoke this consent by written notice to the Corporation. The consent is deemed to be revoked if the Corporation is unable to deliver by electronic transmission two consecutive notices, and the person responsible for delivering notice on behalf of the Corporation knows that delivery of these two electronic transmissions was unsuccessful. The inadvertent failure to treat the unsuccessful transmissions

as a revocation of consent does not invalidate a meeting or other action. Notice by electronic transmission is deemed given when the notice is (i) transmitted to a facsimile number provided by the shareholder, director or committee member for the purpose of receiving notice; (ii) transmitted to an electronic mail address provided by the shareholder, director or committee member for the purpose of receiving notice; (iii) posted on an electronic network and a message is sent to the shareholder, director or committee member at the address provided by the shareholder, director or committee member for the purpose of alerting the shareholder, director or committee member of a posting; or (iv) communicated to the shareholder, director or committee member by any other form of electronic transmission consented to by the shareholder, director or committee member.

Section 9.4 Waiver of Notice. Whenever any notice is required to be given by law, the Certificate of Formation or these By-Laws, a waiver thereof in writing signed by the person or persons entitled to such notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. The business to be transacted at a regular or special meeting of the shareholders, directors, or members of a committee of directors or the purpose of a meeting is not required to be specified in a written waiver of notice or a waiver by electronic transmission unless required by the Certificate of Formation. Attendance of a director at any meeting of the Board of Directors or any committee thereof, and attendance of a shareholder at any meeting of the shareholders shall constitute a waiver of notice of such meeting, except where a director or shareholder attends for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

Section 9.5 Resignations. Any director or officer may resign at any time. Each such resignation may be made in writing or by electronic transmission and shall take effect at the time specified therein, or, if no time be specified, at the time of its receipt by either the Board of Directors or the President or the Secretary. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.

Section 9.6 Telephone and Similar Meetings. Directors and committee members may participate in and hold meetings by means of conference telephone or similar communications equipment, or another suitable electronic communications system, including videoconferencing technology or the Internet, or any combination thereof, if the telephone or other equipment or system permits each person participating in the meeting to communicate with all other persons participating in the meeting. Participation in such a meeting will constitute presence in person at the meeting, except when a director participates in the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting had not been lawfully called or convened.

Section 9.7 Securities of Other Corporations. The President or any Vice President of the Corporation shall have power and authority to transfer, endorse for transfer, vote, consent or take any other action with respect to any securities of another issuer which may be held or owned by the Corporation and to make, execute and deliver any waiver, proxy or consent with respect to any such securities.

Section 9.8 Depositories. Funds of the Corporation not otherwise employed shall be deposited from time to time in such banks or other depositories as either the Board of Directors or the President or the Treasurer may select or approve.

Section 9.9 Signing of Checks, Notes, etc. In addition to and cumulative of, but in nowise limiting or restricting, any other provision or provisions of these By-Laws which confer any authority relative thereto, all checks, drafts and other orders for the payment of money or moneys out of funds of the Corporation and all notes and other evidences of indebtedness of the Corporation shall be signed on behalf of the Corporation, in such manner, and by such officer or officers, person or persons, as shall from time to time be determined or designated by or pursuant to resolution or resolutions of the Board of Directors; provided, however, that if, when, after and as authorized or provided for by resolution or resolutions of the Board of Directors the signature or signatures of any such officer or officers, person or persons, may be facsimile or facsimiles, engraved or printed, and shall have the same force and effect and bind the Corporation as though such officer or officers, person or persons, had signed the same personally, and, in event of the death, disability, removal or resignation of any such officer or officers, person or persons, if the Board of Directors shall so determine or provide, as though and with the same effect as if such death, disability, removal or resignation had not occurred.

Section 9.10 Persons. Wherever used or appearing in these By-Laws, pronouns of the masculine gender shall include the persons of the female sex as well as the neuter gender and the singular shall include the plural wherever appropriate.

Section 9.11 Laws and Statutes. Wherever used or appearing in these By-Laws, the words “law” or “laws” or “statute” or “statutes”, respectively, shall mean and refer to laws and statutes, or a law or a statute, of the State of Texas, to the extent only that such is or are expressly applicable, except where otherwise expressly stated or the context requires that such words not be so limited.

Section 9.12 Headings. The headings of the Articles and Sections of these By-Laws are inserted for convenience of reference only and shall not be deemed to be a part thereof or used in the construction or interpretation thereof.

ARTICLE X

AMENDMENTS

Section 10.1 Amendment of By-Laws. The By-Laws of the Corporation may be altered, amended or repealed or new By-Laws may be adopted by either the Board of Directors or the shareholders.

As last amended: May 24, 2012.

EX-3.2 3 d360398dex32.htm MARKED COMPARISON OF THE BY-LAWS Marked comparison of the By-Laws

Exhibit 3.2

~~SECOND AMENDED AND RESTATED~~

BY-LAWS OF

ATWOOD OCEANICS, INC.

ARTICLE I

OFFICES

Section 1.1 Registered Office. Until the Board of Directors otherwise determines, the registered office and registered agent of Atwood Oceanics, Inc., a Texas corporation (the “Corporation”), will be as set forth in the Corporation’s Amended and Restated Certificate of Formation (as amended from time to time, the “Certificate of Formation”). The Corporation may change its registered office, registered agent, or both by filing a statement of change with the Secretary of State of the State of Texas.

ARTICLE II

SHAREHOLDERS

Section 2.1 Meetings. All meetings of the shareholders ~~for the election of directors~~ will be held at such time and place, within or outside the State of Texas, as may be fixed from time to time by the Board of Directors and stated in the notice of the meeting. Meetings of shareholders for any other purpose will be held at a time and place, within or without the State of Texas, as shall be designated by the Board of Directors or as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. The Board of Directors may determine that any meeting may be held solely by means of remote communication in accordance with Texas law.

Section 2.2 Annual Meeting. ~~The~~An annual meeting of the shareholders shall be held ~~on the second Thursday of February in each year at 10:00 A.M. Central Standard Time, if not a legal holiday, and if a legal holiday,~~ ~~then at the same hour of the day on the next succeeding business day,~~ for the purpose of electing directors and for the transaction of any and all such other business as may properly be brought before or submitted to the meeting. ~~Any and all business of any nature or character whatsoever may be transacted, and action may be taken thereon, at any annual meeting, except as otherwise~~

~~provided by law or by these By-Laws~~At the annual meeting of the shareholders, only such business shall be conducted as shall have been properly brought before the annual meeting as set forth in Section 2.13 and Section 3.7 hereof.

Section 2.3 Special Meetings. Special meetings of the shareholders (unless otherwise prescribed by law, the Amended and Restated Certificate of Formation, or these By-Laws) may be called by the Chairman of the Board of Directors or the President or the holders of not less than 10% of all the shares issued, outstanding, and entitled to vote. The request will state the purposes of the proposed meeting. Business transacted at all special meetings will be confined to the purposes stated in the notice of the meeting unless all shareholders entitled to vote are present and consent otherwise.Certificate of Formation or these By-Laws) may be called by the Board of Directors, the Chairman of the Board or the President. Special meetings of shareholders shall be called by the President or the Secretary of the Corporation on the written request in proper form of the holders of not less than 10% of all the shares of capital stock of the Corporation entitled to vote at such meeting.

Section 2.3, or shall determine that the shareholder or shareholders submitting a request to call the special meeting have not otherwise complied with this Section 2.3, then neither the President nor the Secretary shall be required to call the special meeting, and the Board of Directors shall not be required to set a date or a record date for the meeting or cause the notice thereof to be given.

Each of the shareholders making the request for a special meeting pursuant to this Section 2.3 shall further update and supplement the information provided pursuant to such request, if necessary, so that the information provided or required to be provided pursuant to such request shall be true and correct as of the record date for the special meeting and as of the date that is ten business days prior to the special meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received at, the principal executive offices of the Corporation not later than five business days after the record date for the special meeting (in the case of the update and supplement required to be made as of the record date), and not later than eight business days prior to the date for the special meeting, if practicable (or, if not practicable, on the first practicable date prior to the date for the special meeting) or any adjournment or postponement thereof (in the case of the update and supplement required to be made as of ten business days prior to the special meeting or any adjournment or postponement thereof). In addition, each of such shareholders shall update and supplement such information, and deliver such update and supplement to the principal executive offices of the Corporation, promptly following the occurrence of any event that materially changes the information provided or required to be provided pursuant to this Section 2.3.

For purposes of these By-laws:

made assuming that such security or instrument is immediately convertible or exercisable at the time of such determination) or any other derivative or synthetic arrangement having characteristics of a long position in, or a short position with respect to, any class or series of shares of capital stock of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of capital stock of the Corporation or otherwise; and

(ii) a “Disclosable Interest” with respect to a person means (A)(1) the class or series and number of shares of capital stock of the Corporation that are, directly or indirectly, owned beneficially (within the meaning of Rule 13d-3 of the Exchange Act) and of record by such person (for purposes of this Section 2.3, Section 2.13 and Section 3.7, a person shall in all events be deemed to beneficially own any shares of any class or series of capital stock of the Corporation as to which such person has a right to acquire beneficial ownership at any time in the future), (2) any Derivative Instrument directly or indirectly owned beneficially by such person and 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 capital stock of the Corporation, (3) any proxy, contract, arrangement, understanding or relationship the effect or intent of which is to increase or decrease the voting power of such person with respect to any shares of any security of the Corporation, (4) any pledge by such person of any security of the Corporation or any short interest of such person in any security of the Corporation (for purposes of this Section 2.3, Section 2.13 and Section 3.7, 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), (5) any rights to dividends on the shares of capital stock of the Corporation owned beneficially by such person that are separated or separable from the underlying shares of capital stock of the Corporation, (6) any proportionate interest in shares of capital stock of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner and (7) any performance-related fees (other than an asset-based fee) that such person is entitled to based on any increase or decrease in the value of shares of capital stock of the Corporation or Derivative Instruments, if any, as of the date of such notice, including, without limitation, for purposes of clauses (A)(1) through (A)(7) above, any of the foregoing held by members of such person’s immediate family sharing the same household, (B) any material pending or threatened legal proceeding in which such person is a party or material participant involving the Corporation or any of its officers or directors, or any affiliate of the Corporation, (C) any other material relationship between such person, on the one hand, and the Corporation, any affiliate of the Corporation or any principal competitor of the Corporation, on the other hand, (D) any direct or indirect material interest in any material contract or agreement of such person 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) and (E) any other information relating to such person that

would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for the proposal or the election of directors in a contested election, as applicable, or would otherwise be required, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder.

Section 2.5 Quorum of Shareholders. The holders of at least a majority of the shares issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by law, the ~~Amended and Restated~~ Certificate of Formation or these By-Laws. If a quorum is present at any shareholders’ meeting, the vote of the holders of a majority of the shares entitled to vote, present in person or represented by proxy, shall decide any question brought before such meeting, unless the question is one upon which a different vote is required by law or by the Amended and Restated Certificate of FormationOnce a quorum is present at a meeting of shareholders, the shareholders represented in person or by proxy at the meeting may conduct such business as may properly be brought before the meeting until it is adjourned, and the subsequent withdrawal from the meeting of any shareholder or the refusal of any shareholder represented in person or by proxy to vote shall not affect the presence of a quorum at the meeting.

Section 2.8 Attendance and Proxies. Each outstanding share of the Corporation’s capital stock, regardless of class or series, will be entitled to one vote on each matter submitted to a vote at a meeting of shareholders, except to the extent that the voting rights of the shares of any class or series are limited or denied by the Amended and Restated Certificate of Formation. At any meeting of the shareholders, every shareholder having the right to vote will be entitled to vote in person or by proxy executed in writing by the shareholder and bearing a date not more than eleven months before the meeting, unless the proxy provides for a longer period. A telegram, telex, cablegram, or ~~similar~~other form of electronic transmission, including telephonic transmission, by the shareholder, or a photographic, photostatic, facsimile, or similar reproduction of a writing executed by the shareholder ~~will be treated as any~~, is considered an execution in writing. for purposes of this Section 2.8. Any electronic transmission must contain or be accompanied by information ~~for~~from which it can be determined that the transmission was authorized by the shareholder to the extent required by applicable law. Each proxy will be revocable unless expressly provided 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. Each proxy will be filed with the secretary of the Corporation before or at the time of the meeting. Voting for directors will be in accordance with Article III of these By-Laws. Voting on any question or in any election may be by voice vote or show of hands unless the presiding officer orders or any shareholder demands that voting be by written ballot.

Section 2.9 Voting of Shares . At each meeting of the shareholders, each outstanding share, regardless of class, standing in the shareholder’s name on the stock and transfer books shall be entitled to one (1) vote, subject however, to the provisions of Section 6 of Article VIII of these By-Laws, and excepting only as

~~may be otherwise provided or required by law, on each matter submitted to a vote at such meeting, unless~~shareholder shall be entitled to such number of votes, in person or by proxy, for each share having voting power held by such shareholder, as is specified in the Certificate of Formation (including the resolution of the Board of Directors (or a committee thereof) creating such shares), except to the extent that the voting rights of the shares of any class or ~~classes~~series are limited or denied by the ~~Amended and Restated~~ Certificate of Formation ~~as permitted by law~~and except that each share of common stock, par value $1.00 per share, of the Corporation shall be entitled to one vote per share. Treasury shares, and shares of ~~its~~the Corporation’s own stock owned by another corporation, the majority of the voting stock of which is owned or controlled by ~~it, and shares of its own stock held by a corporation in a fiduciary capacity~~the Corporation shall not be voted, directly or indirectly, at any meeting, and shall not be counted in determining the total number of outstanding shares at any given time; provided that the foregoing shall not preclude the Corporation from voting shares of its capital stock held or controlled by the Corporation in a fiduciary capacity or for which the Corporation otherwise exercises voting power in a fiduciary capacity.

The candidates for directors receiving the highest number of votes, up to the number of directors to be elected, are elected.

Section 2.11 Shares Held by Fiduciaries, Receivers, Pledgees. Shares held by an administrator, executor, guardian, or conservator, may be voted by him so long as such shares forming a part of an estate are in the possession and forming a part of the estate being served by him, either in person or by proxy, without a transfer of such shares into his name. Shares standing in the name of a trustee may be voted by him, either in person or by proxy, but no trustee shall be entitled to vote shares held by him unless such share shall have been transferred into his name as trustee. Shares standing in the name of a receiver on the books

and records of this Corporation may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without such shares being transferred into his name if appropriate authority so to do be contained in an appropriate order of the court by which such receiver was appointed. A shareholder whose shares are pledged shall be entitled to vote such shares until such shares have been transferred on the books and records of the Corporation into the name of the pledgee, unless in the transfer by the pledgor on the books and records of the Corporation, he shall have expressly empowered the pledgee to vote such shares, and thereafter the pledgee shall be entitled to vote the share so transferred.

Section 2.12 Decisions at Meetings of Shareholders. When a quorum is present at any meeting, the affirmative vote of the holders of a majority of the shares entitled to vote on, and who voted for or against, the matter shall decide any matter brought before such meeting, other than the election of directors or a matter for which the affirmative vote of the holders of a specified portion of the shares entitled to vote is required by the Texas Business Organizations Code, and shall be the act of the shareholders, unless otherwise provided by the Certificate of Formation or these By-Laws, or by resolution of the Board of Directors in accordance with the Texas Business Organizations Code. In the case of a matter submitted for a vote of the shareholders as to which a shareholder approval requirement is applicable under the shareholder approval policy of any stock exchange or quotation system on which the capital stock of the Corporation is traded or quoted, the requirements of Rule 16b-3 under the Exchange Act or any provision of the Internal Revenue Code, in each case for which no higher voting requirement is specified by the Texas Business Organizations Code, the Certificate of Formation or these By-Laws, the vote required for approval shall be the requisite vote specified in such shareholder approval policy, Rule 16b-3 or Internal Revenue Code provision, as the case may be (or the highest such requirement if more than one is applicable). In the case of any proposal for shareholder action properly made by a shareholder pursuant to Rule 14a-8 under the Exchange Act, the vote required for approval shall be the affirmative vote of the holders of a majority of the shares entitled to vote on, and who voted for or against or abstained from voting on, the matter. At all meetings of the shareholders all questions, business and matters, except those the manner of deciding which is otherwise expressly governed by the Texas Business Organizations Code or by the Amended and Restated Certificate of Formation or by these By-Laws, shall be decided by the vote of the holders of a majority of the votes of the shareholders of the Corporation present in person or by proxy, and entitled to vote, a quorum being present.

All voting shall be viva voce, except that upon the determination of the officer or person presiding at the meeting ~~or upon the demand of any qualified voter or his proxy~~, voting on any ~~further~~ question, matter or business at such meeting shall be by ballot. In the event any business, question or matter is so voted upon by ballot, then each ballot shall be signed by the shareholder voting, or by his proxy and shall state the number of shares so voted.

Section 2.13 Shareholder Proposals (Other than Director Nominations). At an annual meeting of shareholders of the Corporation, only such business shall be conducted, and only such proposals shall be acted upon, as shall have been properly

brought before such annual meeting. To be properly brought before an annual meeting, business or proposals (other than any nomination of directors of the Corporation, which is governed by Section 3.7 hereof) must (i) be specified in the notice relating to the meeting (or any supplement thereto) given by or at the direction of the Board of Directors in accordance with Section 2.4 hereof, (ii) otherwise be properly brought before the annual meeting by or at the direction of the Board of Directors or (iii) be properly brought before the meeting by a shareholder of the Corporation who (A) is a shareholder of record at the time of the giving of such shareholder’s notice provided for in this Section 2.13 and on the record date for the determination of shareholders entitled to vote at such annual meeting, (B) shall be entitled to vote at the annual meeting and (C) complies with the requirements of this Section 2.13, and otherwise be proper subjects for shareholder action and be properly introduced at the annual meeting. Clause (iii) of the immediately preceding sentence shall be the exclusive means for a shareholder to submit business or proposals (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in the notice relating to the meeting (or any supplement thereto) given by or at the direction of the Board of Directors in accordance with Section 2.4 hereof) before an annual meeting of shareholders of the Corporation.

beneficial owner, if any, in such business or proposal, (v) a representation that such shareholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting and (vi) a description of all agreements, arrangements and understandings between such shareholder and beneficial owner, if any, and any other person or persons (including their names) in connection with such business or proposal by such shareholder.

Section 2.14 ~~Section 2.13~~ List of Shareholders. The officer or agent who has charge of the stock transfer books of the Corporation shall prepare and make, at least eleven (11) days before each meeting of shareholders, a complete list of the shareholders entitled to vote at such meeting or any adjournment thereof, arranged in alphabetical order, showing the address

and the type and number of shares held by each shareholder and number of votes to which each shareholder is entitled (if different from the number of shares). Such list shall be kept on file at the registered office or the principal place of business of the Corporation and shall be open to inspection by any shareholder at any time during usual business hours, for a period of at least ten (10) days prior to such meeting.

~~Section 2.14~~ ~~Action Without Meeting~~

Section 2.15 Action Without Meeting

~~(a)~~ ~~Any action required by law to be taken at any annual or special meeting of the~~The shareholders, may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, shall have been signed by the holder or holders of all the shares entitled to vote with respect to the action that is subject of the consent of the Corporation may take action without holding a meeting, providing notice or taking a vote if each shareholder entitled to vote on the action signs a written consent or consents stating the action taken.

~~(b)~~ Every written consent of the shareholders shall bear the date of signature of each shareholder who signs the consent. No written consent shall be effective to take the action that is the subject of the consent unless, within sixty (60) days after the date of the earliest dated consent delivered to the Corporation as provided below, a consent or consents signed by the holder or holders of shares having not less than the minimum number of votes that would be necessary to take the action that is the subject of the consent are delivered to the Corporation by delivery to its registered office, its principal place of business, or an officer or agent of the Corporation having custody of the books in which proceedings of meetings of the shareholders are recorded. Such delivery shall be made by hand or by certified or registered mail, return receipt requested, and in the case of delivery to the Corporation’s principal place of business, shall be addressed to the President of the Corporation.

~~(c)~~ A telegram, telex, cablegram, or other electronic transmission by a shareholder consenting to an action to be taken is considered to be written, signed, and dated for the purposes of this Section if the transmission sets forth or is delivered with information from which the Corporation can determine that the transmission was transmitted by the shareholder and the date on which the shareholder transmitted the transmission. The date of transmission is the date on which the consent was signed. Consent given by telegram, telex, cablegram, or other electronic transmission may not be considered delivered until the consent is reproduced in paper form and the paper form is delivered to the Corporation at its registered office in Texas or its principal place of business, or to an officer or agent of the Corporation having custody of the book in which proceedings of shareholder meetings are recorded. Notwithstanding Subsection (b) of this Section, consent given by telegram, telex, cablegram, or other electronic transmission may be delivered to the principal place of business of the Corporation or to an officer or agent of the Corporation having custody of the book in which proceedings of shareholder meetings are recorded to the extent and in the manner provided by resolution of the Board of Directors of the Corporation. Any photographic, photostatic, facsimile, or similarly reliable reproduction of a consent in writing signed by a shareholder may be substituted or used instead of the original writing for any purpose for which the original writing could be used, if the reproduction is a complete reproduction of the entire original writing.

~~(d)~~ ~~Prompt notice of the taking of any action by shareholders without a meeting by less than unanimous written consent shall be given to those shareholders who did not consent in writing to the action.~~

Section 2.16 ~~Section 2.15~~ Telephone or Remote Communications. Shareholders may participate in and hold a shareholders’ meeting by means of conference telephone or similar communications equipment, or another suitable electronic

communications system, including videoconferencing technology or the Internet, or any combination thereof, if the telephone or other ~~means of remote communication equipment by means of which all~~equipment or system permits each person participating in the meeting to communicate with all other persons participating in the meeting ~~can hear each other~~. Participation in such a meeting shall constitute presence in person at such meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened, if (i) the Corporation implements reasonable measures to verify that each person considered present and permitted to vote at the meeting by means of remote communication is a shareholder; (ii) the Corporation implements reasonable measures to provide the shareholders at the meeting by means of remote communication a reasonable opportunity to participate in the meeting and to vote on matters submitted to the shareholders, including an opportunity to read or hear the proceedings of a meeting substantially concurrently with the proceedings; and (iii) the Corporation maintains a record of any shareholder vote or other action taken at the meeting by means of remote communication.

Section 2.17 ~~Section 2.16~~ Record Date. The Board of Directors shall have the power to close the stock transfer books of the Corporation or, in lieu thereof, to fix a record date for the determination of the shareholders entitled to notice of or to vote at any meeting of the shareholders and at any adjournment or adjournments thereof and to fix a record date for any other purpose or purposes as provided in Section ~~6 of Article VIII~~8.6 of these By-Laws.

ARTICLE III

BOARD OF DIRECTORS

Section 3.1 Board of Directors. The business, property and affairs of the Corporation shall be managed and controlled by the Board of Directors and, subject to such restrictions, if any, as may be imposed by law, the ~~Amended and Restated~~ Certificate of Formation or by these By-Laws, the Board of Directors may, and are fully authorized to, exercise all the powers of the Corporation. Directors need not be residents of the State of Texas or shareholders of the Corporation.

In addition to the powers and authority expressly conferred on the Board of Directors by law, the ~~Amended and Restated~~ Certificate of Formation or ~~amendment thereof, by~~ these By-Laws ~~or any amendment thereof~~, the Board may exercise all the powers of the Corporation and do all such lawful acts and things as may be done by the Corporation which are not by the laws of the State of Texas ~~or by~~, the ~~Amended and Restated~~ Certificate of Formation or by these By-Laws directed or required to be exercised or done by the shareholders.

Section 3.2 Number of Directors. ~~The~~Within any limits specified in the Certificate of Formation, the number of directors shall be established, and may be increased or decreased from time to time, by resolution of the Board of Directors of the Corporation~~, provided, however, that the number of directors shall never be less than three (3)~~.

Section 3.3 Election and Term. Except as otherwise provided in Section ~~5 of this Article III,~~3.5, all directors (the number of which shall be established by the Board of Directors as provided by Section ~~2 of this Article III,~~3.2) shall be elected at each annual meeting to hold office for one year and until their successors are elected and qualified.

Section 3.4 Resignation. Any director ~~or officer~~ of the Corporation may resign at any time as provided in Section ~~5 of Article IX~~9.5 of these By-Laws.

Section 3.7 Nomination of Directors

(a) Subject to such rights of holders of shares of one or more outstanding series of preferred stock of the Corporation to elect one or more directors of the Corporation under circumstances as shall be provided by or pursuant to the Certificate of Formation, only persons who are nominated in accordance with the procedures set forth in this Section 3.7 shall be eligible for election as, and to serve as, directors of the Corporation. Nominations of persons for election to the Board of Directors may be made only at a meeting of the shareholders of the Corporation at which directors of the Corporation are to be elected (as specified in the notice of meeting in accordance with Section 2.3 and Section 2.4 of these By-Laws) (i) by or at the direction of the Board of Directors or (ii) by any shareholder of the Corporation who is a shareholder of record at the time of the giving of such shareholder’s notice provided for in this Section 3.7 and on

the record date for the determination of shareholders entitled to vote at such meeting, who shall be entitled to vote at such meeting in the election of directors of the Corporation and who complies with the requirements of this Section 3.7. Clause (ii) of the immediately preceding sentence shall be the exclusive means for a shareholder to make any nomination of a person or persons for election as a director of the Corporation at an annual meeting or special meeting. Any such nomination by a shareholder of the Corporation shall be preceded by timely advance notice in writing to the Secretary of the Corporation.

To be timely with respect to an annual meeting, such shareholder’s notice must be delivered to, or mailed and received at, the principal executive offices of the Corporation not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the first anniversary of the annual meeting date of the immediately preceding annual meeting; provided, however, that (1) if the scheduled annual meeting is called for a date that is not within 30 days before or after such anniversary date, notice by such shareholder, to be timely, must be so delivered or received not earlier than the close of business on the 120th day and not later than the close of business on the later of the 90th day prior to the date of such annual meeting or, if less than 100 days’ prior notice or public disclosure of the scheduled meeting date is given or made, the 10th day following the earlier of the day on which the notice of such meeting was mailed to shareholders of the Corporation or the day on which such public disclosure was made; and (2) if the number of directors to be elected to the Board of Directors at such annual meeting is increased and there is no prior notice or public disclosure by the Corporation naming all of the nominees for director or specifying the size of the increased Board of Directors at least 100 days prior to such anniversary date, a shareholder’s notice required by this Section 3.7(a) shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the principal executive offices of the Corporation not later than the close of business on the 10th day following the earlier of the day on which the notice of such meeting was mailed to shareholders of the Corporation or the day on which such public disclosure was made. To be timely with respect to a special meeting, such shareholder’s notice must be delivered to, or mailed and received at, the principal executive offices of the Corporation not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the scheduled special meeting date; provided, however, that if less than 100 days’ prior notice or public disclosure of the scheduled meeting date is given or made, notice by such shareholder, to be timely, must be so delivered or received not later than the close of business on the 10th day following the earlier of the day on which the notice of such meeting was mailed to shareholders of the Corporation or the day on which such public disclosure was made. In no event shall any adjournment, postponement or deferral of an annual meeting or special meeting or the announcement thereof commence a new time period for the giving of a shareholder’s notice as described above.

proxies for election of directors of the Corporation in a contested election, or would otherwise be required, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (including, without limitation, the written consent of such person to having such person’s name placed in nomination at the meeting and to serve as a director of the Corporation if elected), and (D) 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 shareholder giving the notice 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 Rule 404 promulgated under Regulation S-K if such shareholder and 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; (ii) the name and address of such shareholder giving the notice, as they appear on the Corporation’s books, and of the beneficial owner, if any, on whose behalf the nomination is made and the name and address of any other shareholders known by such shareholder to be supporting such nomination; (iii) any Disclosable Interests of such shareholder, such beneficial owner, if any, and the proposed nominee; (iv) a representation that such shareholder intends to appear in person or by proxy at the meeting to nominate the persons named in its notice; (v) a description of all agreements, arrangements and understandings between such shareholder and beneficial owner, if any, and each proposed nominee and any other person or persons (including their names) pursuant to which the nomination(s) are to be made by such shareholder; and (vi) any other information relating to such shareholder, beneficial owner, if any, and nominee that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for election of directors of the Corporation in a contested election, or would otherwise be required, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Any such shareholder’s notice to the Secretary of the Corporation shall also include or be accompanied by, with respect to each nominee for election or reelection to the Board of Directors, a completed and signed questionnaire, representation and agreement required by Section 3.7(b). 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 an independent director of the Corporation or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nominee.

record date), and not later than eight business days prior to the date for the meeting, if practicable (or, if not practicable, on the first practicable date prior to the date for the meeting) or any adjournment or postponement thereof (in the case of the update and supplement required to be made as of ten business days prior to the meeting or any adjournment or postponement thereof). In addition, a shareholder providing notice of any nomination proposed to be made at a meeting shall update and supplement such notice, and deliver such update and supplement to the principal executive offices of the Corporation, promptly following the occurrence of any event that materially changes the information provided or required to be provided in such notice pursuant to this Section 3.7(a).

(b) To be eligible to be a nominee for election or reelection as a director of the Corporation, a person must deliver (in accordance with the time periods prescribed for delivery of notice under Section 3.7(a)) to the Secretary at the principal executive offices of the Corporation a written questionnaire with respect to the background, qualification, stock ownership and independence of such person and the background of any other person or entity on whose behalf the nomination is being made (which questionnaire shall be in the form 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 (A) 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, (B) 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 service or action as a director that has not been disclosed therein, and (C) in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a director of the Corporation, and will comply with all applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation.

the foregoing provisions of this Section 3.7, a shareholder of the Corporation 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 3.7.

Section 3.8 ~~Section 3.7~~ Offices and Records. The directors may have or establish one or more offices of the Corporation and keep the books and records of the Corporation, except as otherwise provided by statue, in such place or places in the State of Texas or outside the State of Texas, as the Board of Directors may from time to time determine.

Section 3.9 ~~Section 3.8~~ Meeting of Directors. Meetings of the Board of Directors, regular or special, may be held either within or without the State of Texas.

~~Section 3.9~~ ~~First Meeting~~

Section 3.10 Regular Meetings. Each newly elected Board of Directors may hold its first meeting for the purpose of organization and the transaction of business, if a quorum is present, immediately after and at the same place as the annual meeting of the ~~stockholders, and no notice of such meeting shall be necessary.~~shareholders. The Board of Directors shall also meet regularly at such other times as shall be designated by the Board of Directors. No notice of such first meeting or other regular meetings shall be required.

~~Section 3.10~~ ~~Election of Officers~~ . At the first meeting of the Board of Directors in each year at which a quorum shall be present, held next after the annual meeting of shareholders, the Board of Directors shall proceed to the election of the officers of the Corporation.

~~Section 3.11~~ ~~Regular Meetings~~ ~~. There shall be regularly scheduled quarterly meetings of the Board of Directors of the Corporation. Notice of such regular meetings shall not be required.~~

Section 3.11 ~~Section 3.12~~ Special Meetings . Special meetings of the Board of Directors shall be held whenever and wherever called or provided to be held by the President or by any three of the Directors for the time being in office, and at the place, day and hour determined by the officer or the three directors calling or providing for the holding of the particular meeting, in each instance, and such determination may be conclusively evidenced in a call, waiver of notice or by an electronic transmission signed or delivered by such officer or such three directors.

Section 3.12 ~~Section 3.13~~ Notice. The Secretary or an Assistant Secretary shall, but in the event of the absence of the Secretary or an Assistant Secretary or the failure, inability, refusal or omission on the part of the Secretary or an Assistant Secretary so to do, any other officer of the Corporation may, give notice of each special meeting, and of the place, day and hour of the particular meeting, in person or by mail, or by telephone, telegraph, electronic transmission or other means of communication, at least three (3) days before the meeting of each director. The attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

Section 3.13 ~~Section 3.14~~ Business to be Transacted. Neither the business to be transacted at, nor the purpose or purposes of, any regular or special meeting of the Board of Directors need be specified in the notice or any waiver or waivers of notice of such meeting. Any and all business of any nature or character whatsoever may be transacted and action may be taken thereon at any such first meeting or at any other meeting, regular or special, of the Board of Directors. At any meeting at which every director shall be present, even though without any notice, any business may be transacted.

Section 3.14 ~~Section 3.15~~ Quorum—Adjournment if Quorum is not Present. A majority of the number of directors fixed by these By-Laws shall constitute a quorum ~~(provided, a majority of those present are citizens of the United States)~~ for the transaction of any and all business, but if at any meeting, regular or special, or any first meeting, of the Board of Directors there be less than a quorum present, a majority of those present, or if only one director be present, then such director, may adjourn the meeting from time to time without notice, other than by announcement at the meeting, until a quorum shall be present at the meeting. A majority of the directors present at any meeting of the Board of Directors, or if only one director be present, then such director, may adjourn any meeting of the Board from time to time without notice, other than by announcement at such meeting of the time and place at which the meeting will reconvene, until the transaction of any and all business submitted or proposed to be submitted to such meeting or any adjournment or adjournments thereof shall have been completed. The act of a majority of the directors present at any meeting of the Board of Directors at which a quorum is in attendance shall constitute the act of the Board of Directors unless the act of a greater number is required by the ~~Amended and Restated~~ Certificate of Formation or by these By-Laws.

Section 3.15 ~~Section 3.16~~ Action Without Meeting. Unless otherwise restricted by law or the ~~Amended and Restated~~ Certificate of Formation, any action required or permitted to be taken at a meeting of the Board of Directors or of any committee thereof may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed (including by electronic transmission) by all members of the Board of Directors or committee thereof, as the case may be. ~~A telegram, telex, cablegram or other~~An electronic transmission of a consent by a director ~~consenting~~ to the taking of an action ~~to be taken and transmitted by a director~~ is considered ~~written,~~a signed~~, and dated for the purposes of this Article III~~ writing if the transmission ~~sets forth~~contains or is ~~delivered with~~accompanied

by information from which ~~the Corporation~~it can ~~determine~~be determined that the electronic transmission was transmitted

by the director and the date on which the director transmitted the electronic transmission. Such consent shall have the same force and effect as a unanimous vote at a meeting of the Board of Directors or the committee, as the case may be, duly called and held.

Section 3.16 ~~Section 3.17~~ Compensation. Directors, as such, shall not be entitled to receive any fixed sums or stated salaries for their services, but, by resolution of the Board, a fixed sum and expenses of attendance, if any, may be provided and allowed by the Board of Directors for attendance at meetings of the Board, whether regular or special, or first meetings; provided that nothing herein contained shall, or shall be construed so as to, preclude any director from serving the Corporation in any other capacity or receiving compensation therefor. Members of special or standing committees may be allowed a fixed sum and expenses of attendance, if any, at committee meetings. . Directors shall receive such compensation for their services as shall be determined by the Board of Directors. Unless otherwise determined by the Board of Directors, directors who also are employees of the Corporation shall receive no additional compensation for their services as a director of the Corporation.

Section 3.17 ~~Section 3.18~~ Order of Business. At all meetings of the Board of Directors, business shall be transacted in such order as from time to time the Board of Directors may determine. AtThe Chairman of the Board shall preside at all meetings of the Board of Directors ~~a Chairman~~, or, in the absence of the Chairman of the Board, a chairman shall be chosen by the Board from among the directors present and such ~~Chairman~~chairman so chosen shall preside at the meeting.

The Secretary of the Corporation, or in his absence, an Assistant Secretary, shall act as Secretary of the meetings of the Board of Directors, but in the absence of the Secretary and an Assistant Secretary, or if for any reason neither acts as Secretary thereof, the ~~presiding officer~~chairman of the meeting shall appoint any person of his choice to act, and such person shall act as Secretary at the meeting.

Section 3.18 ~~Section 3.19~~ Presumption of Assent. A director of the Corporation who is present at a meeting of the Board of Directors at which action on any corporate matter is taken shall be presumed to have assented to the action unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the Secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary of the Corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action.

ARTICLE IV

OFFICERS’ AND DIRECTORS’ SERVICES, CONFLICTING INTERESTS AND

INDEMNIFICATION

business, enterprise and activities of this Corporation, without breach of duty to this Corporation or to its shareholders and without accountability or liability to this Corporation or to its shareholders in any event or under any circumstances or conditions.

Each and every ~~Director~~director shall be entirely free to act for, serve and represent any other corporation or corporations, entity or entities, and any person or persons, in any capacity or capacities, and be or become a director or officer, or both, of any other corporation or corporations, entity or entities, irrespective of whether or not the business, purposes, enterprises and activities, or any of them, thereof be similar or dissimilar to the business, purposes, enterprises and activities, or any of them, of this Corporation, without breach of duty to this Corporation or to its shareholders and without accountability or liability of any character or description to this Corporation or to its shareholders in any event or under any circumstances or conditions.

Section 4.2 Interested Directors and Officers. No contract or transaction between the Corporation and one or more ~~of its~~ directors or officers, or one or more affiliates or associates of one or more directors or officers, of the Corporation or between the Corporation and ~~any other~~an entity or other organization in which one or more directors or officers, or one or more affiliates or associates of one or more directors or officers, of the Corporation~~’s directors or officers~~ is a managerial official or has a financial interest will be void or voidable (a) for this reason; (b) because the director or officer is present at or participates in the meeting of the Board of Directors or committee that authorizes the contract or transaction; or (c) because his vote authorizes the contract or transaction if (i) the material facts of his, notwithstanding any such relationship or interest, if any one of the following conditions is satisfied: (1) the material facts as to such relationship or interest and ofas to the contract or transaction are disclosed ~~or are known to the board of directors or the committee~~to or known by (A) the Board of Directors or a committee thereof, and the Board of Directors or committee in good faith authorizes the contract or transaction by the ~~affirmative vote~~approval of athe majority of the disinterested directors or committee members, ~~even though~~regardless of whether the disinterested directors or committee members ~~are less than a quorum; (ii) the material facts of his relationship or interest and of the contract or transaction are disclosed or are known to~~constitute a quorum; or (B) the shareholders entitled to vote ~~thereon~~on the authorization of the contract or transaction, and the contract or transaction is specifically approved in good faith by a vote of the shareholders; or (~~iii~~2) the contract or transaction is fair as to the Corporation ~~as of the time it~~when the contract or transaction is

authorized, approved, or ratified by the Board of Directors, a committee thereof, or the shareholders. Common or interested directors of the Corporation may be ~~counted~~included in determining the presence of a quorum at a meeting of the Board of Directors, or ~~of a committee~~a committee thereof, that authorizes the contract or transaction. A person who has the relationship or interest described in the first sentence of this Section 4.2 may (1) be present at or participate in and, if the person is a director or committee member, may vote at a meeting of the Board of Directors or of a committee thereof that authorizes the contract or transaction; or (2) sign, in the person’s capacity as a director or committee member, a unanimous written consent of the directors or committee members to authorize the contract or transaction.

Section 4.3 Indemnification and Expense Advances . The Corporation is authorized to, and shall, indemnify and advance expenses to directors of the Corporation in the manner prescribed in, and to the maximum extent permissible under, the Texas Business Organizations Code. The Corporation shall indemnify and advance expenses to officers~~, employees and agents~~ of the Corporation in the same manner and to the same extent that it indemnifies and advances expenses to directors of the Corporation.

Section 4.4 Rights Not Exclusive. The indemnification provided by this Article IV shall not be deemed exclusive of any other rights to which any person in any capacity referred to in Section ~~3 of this Article IV~~4.3 may be entitled under any bylaw, agreement, vote of the shareholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in any other capacity while holding such office. Such indemnification shall continue as to a person who has ceased to act in any capacity referred to in Section ~~3 of this Article IV~~4.3 and shall inure to the benefit of the heirs, executors and administrators of such a person.

Section 4.5 Powers Not Exclusive. The indemnification provided by this Article IV shall not be deemed exclusive of any other power to indemnify or right to indemnification which the Corporation or any person in any capacity referred to in Section ~~3 of this Article IV~~4.3 may have or acquire under the law including, without limitation, the Texas Business Organizations Code, or any amendment thereto or substitute therefor.

Section 4.6 Applicability. The provisions of this Article VIIV shall be applicable to claims, actions, suits or other proceedings referred to in the Texas Business Organizations Code, made or commenced after the adoption hereof, whether arising from conduct or act or omission occurring before or after the adoption hereof.

Section 4.7 Insurance. The Corporation may, at the discretion of the Board of Directors, purchase and maintain insurance on behalf of the Corporation and any person whom it has power to indemnify pursuant to the Texas Business Organizations Code, the ~~Amended and Restated~~ Certificate of Formation, or these By-Laws, or otherwise.

ARTICLE V

COMMITTEES OF DIRECTORS

Section 5.1 Committees of Directors . The Board of Directors~~, by resolution adopted by a majority of the full Board of Directors,~~ may designate from among its members an Executive Committee and one or more other committees, each of which~~, to the extent provided in such resolution,~~ shall have and may exercise all of the authority of the Board of Directors~~, except that no such committee shall have the authority~~ to the extent delegated by the Board of Directors in the resolution designating such committee and permitted by the Texas Business Organizations Code. Any member of a committee of the Board of Directors ~~when the action of the Board of Directors is required or the authority of the committee is limited by statute~~may be removed, with or without cause, by the affirmative vote of a majority of the Board of Directors. Vacancies in the membership of a committee (whether by death, resignation, removal or any other manner) may be filled by resolution of the Board of Directors. No notice of any meeting of any committee shall be required, and a majority of the members of the committee shall constitute a quorum for the transaction of business. The designation of such a committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed upon it or him by law.

ARTICLE VI

OFFICERS

Section 6.1 Principal Officers. The officers of the Corporation shall be chosen by the Board of Directors. The officers shall be a President, and a Secretary~~, Treasurer~~, and such number of Vice Presidents, a Treasurer and such number of Assistant Secretaries and Assistant Treasurers, as the Board may from time to time determine or elect. Any person may hold two or more offices at the same time, except that the President and Secretary shall not be the same person.

Section 6.2 Additional Officers. The Board of Directors may appoint such other officers, agents and factors as shall deem necessary.

Section 6.4 Removal. Any officer or agent ~~or member of the Executive Committee or any other committee~~ elected or appointed by the Board of Directors may be removed by, with or without cause, at any time by a majority vote of the Board of Directors ~~whenever in its judgment the best interests of the Corporation will be served thereby~~, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment of an officer or agent shall not of itself create contract rights.

Section 6.5 Vacancies. A vacancy in any office may be filled by the vote of a majority of the Board of Directors then in office for the unexpired portion of the term of such office.

Section 6.7 Chairman of the Board. The Board of Directors may select from among its members a Chairman of the Board who may, if so selected, preside at all meetings of the Board of Directors and approve the minutes of all proceedings, thereat, and he shall be available to consult with and advise the officers of the Corporation with respect to the conduct of the business and affairs of the Corporation. The Board of Directors may designate that the Chairman of the Board be an officer of the Corporation and, in the absence of such designation, the Chairman of the Board shall not be considered an officer.

Section 6.9 Vice Presidents . Each Vice President shall have such powers and duties as may be conferred upon or assigned to him by the Board of Directors and shall in the order of their seniority have and exercise the powers of the President during that officer’s absence or inability to act; provided however that in the event that the foregoing functions to confer the powers of the President upon a Vice President who is not a citizen of the United States of America, then such Vice President shall not assume the Powers of the President and such responsibility shall be assumed by the next senior Vice President or other officer who is a United States citizen. Any action taken by a Vice President on the performance of the duties of the President shall be conclusive evidence of the absence or inability to act of the President at the time such action was taken.

Section 6.10 Treasurer . The Treasurer shall have custody of all the funds and securities of the Corporation which come into his hands. When necessary or proper, he may endorse on behalf of the Corporation, for collection, checks, notes and other obligations and shall deposit the same to the credit of the Corporation in such bank or banks or depositories as shall be selected or designated by or in the manner prescribed by the Board of Directors. He may sign all receipts and vouchers for payments made to the Corporation, either alone or jointly with such officer as may be designated by the Board of Directors. Whenever required by the Board of Directors he shall render a statement of his cash account. He shall enter or cause to be entered, punctually and regularly, on the books of the Corporation to be kept by him or under his supervision or direction for that purpose, full and accurate accounts of all moneys received and paid out by, for or on account of the Corporation. He shall at all reasonable times exhibit his books and accounts and other financial records to any director of the Corporation during business hours. He shall have such other powers and duties as may be conferred upon or assigned to him by the Board of Directors. The Treasurer shall perform all acts incident to the position of Treasurer subject always to the control of the Board of Directors. He shall, if required by the Board of Directors, give such bond for the faithful discharge of his duties in such form and amounts as the Board of Directors may require.

Section 6.11 Assistant Treasurers. Each Assistant Treasurer shall have the usual powers and duties pertaining to his office, together with such other powers and duties as may be conferred upon or assigned to him by the Board of Directors. The Assistant Treasurers shall have and exercise the powers of the Treasurer during that officer’s absence or inability to act.

Corporation and affix the seal of the Corporation thereto, (4) may sign with the President or a Vice President all certificates for shares of the capital stock of the Corporation and affix the corporate seal of the Corporation thereto, (5) shall have charge of and maintain and keep or supervise and control the maintenance and keeping the stock certificate books, transfer books and stock ledgers and such other books and papers as the Board of Directors may authorize, direct or provide for, all of which shall at all reasonable times be open to the inspection of any director, upon request, at the office of the Corporation during business hours, (6) shall, in general, perform all the duties incident to the office of Secretary, and (7) shall have such other powers and duties as may be conferred upon or assigned to him by the Board of Directors~~; subject always to the control of the Board of Directors~~.

~~Section 6.14~~ ~~Securities of other Corporations~~. The President or any Vice President or Secretary or Treasurer of the Corporation shall have the power and authority to transfer, endorse for transfer, vote, consent or take any other action with respect to any securities of another issuer which may be held or owned by the Corporation and to make, execute and deliver any waiver, proxy or consent with respect to any such securities.

ARTICLE VII

BOOKS, DOCUMENTS AND ACCOUNTS

Section 7.1 Books, Documents and Accounts. The Board of Directors shall have power to keep the books, documents and accounts of the Corporation outside of the State of Texas; except that a record of its shareholders, giving the names and addresses of all shareholders and the number and class of shares held by each shall be kept at its registered office or principal place of business, or at the office of its transfer agent or registrar and the original or a duplicate stock ledger shall at all times be kept within the State of Texas.

ARTICLE VIII

CAPITAL STOCK

entered in the books of the Corporation as they are issued and shall exhibit the holder’s name and the number of shares. Every holder of stock in the Corporation shall be entitled, but not required, to have a certificate signed by, or in the name of the Corporation by the President, or a Vice President, and the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by him in the Corporation, with the seal of the Corporation or a facsimile thereof impressed or printed thereon. Where any such certificate is countersigned by a transfer agent, or registered by a registrar, either of which is other than the Corporation itself or an employee of the Corporation, the signatures of the President or Vice President and the Secretary or Assistant Secretary upon a certificate may be facsimiles, engraved or printed. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used or placed on any such certificate or certificates shall have ceased to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate is, or such certificates are, issued, such certificate or certificates may nevertheless be issued and delivered by the Corporation as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon was or were such officer or officers at the time of issuance thereof, and with the same effect as if he or they were such officer or officers at the date of issuance thereof.

Section 8.2 Transfers. Stock of the Corporation shall be transferable in the manner prescribed by the laws of the State of Texas and in these By-Laws. Transfers of stock shall be made on the books of the ~~corporation~~Corporation only by the person named in the certificate, or by his attorney or attorneys-in-fact, legal representative or legal representatives, duly and lawfully authorized in writing, and upon the surrender of the certificate therefor, which shall be cancelled before the new certificate, certificates in the aggregate, for a like number of shares shall be issued.

Section 8.3 Registered Holders . The Corporation shall be entitled to treat the person in whose name any share of stock or any warrant, right or option is registered as the owner thereof for all purposes and shall not be bound to recognize any equitable or other claim to, or interest in, such share, warrant, right or option on the part of any other person, whether or not the Corporation shall have notice thereof, save as may be expressly provided otherwise by the laws of the State of Texas.

sufficient, in the sole judgment of the Board, to indemnify and protect the Corporation against any and all claims, liabilities, costs and expenses that may be made or asserted against it or which it may suffer or incur or pay, on account of the alleged loss of any such certificate or the issuance of such new certificate. A new certificate may be issued without requiring any bond when, in the sole discretion of the Board, it is proper so to do.

ARTICLE IX

MISCELLANEOUS PROVISIONS

Section 9.3 Notice. Any notice to directors, shareholders and committee members shall be in writing and may be delivered personally, or by mail to the directors, shareholders or committee members at their respective addresses appearing on the books and share transfer records of the Corporation. Notice to shareholders shall be deemed to be given at the time when the same shall be so delivered or mailed. Notice to directors and committee members may also be given by nationally recognized overnight delivery or courier service, and shall be deemed given when such notice shall be received by the proper recipient or, if earlier, (i) in the case of an overnight delivery or courier service, one (1) day after such notice is sent by such overnight delivery or courier service; (ii) in the case of telegraph, when deposited at a telegraph office for transmission and all appropriate fees therefore have been paid; and (iii) in the case of mailing by U.S. mail, three (3) days after such notice is mailed as described above. On consent of a shareholder, director or committee member, notice from the Corporation may be given to the shareholder, director or committee member by electronic transmission. The shareholder, director or committee member may specify the form of electronic transmission to be used to communicate notice. The shareholder, director or committee member may revoke this consent by written notice to the Corporation. The consent is deemed to be revoked if the Corporation is unable to deliver by electronic transmission two consecutive notices, and the person responsible for delivering notice on behalf of the Corporation knows that delivery of these two electronic transmissions was unsuccessful. The inadvertent failure to treat the unsuccessful transmissions as a revocation of consent does not invalidate a meeting or other action. Notice by electronic transmission is deemed given when the notice is (i) transmitted to a facsimile number provided by the shareholder, director or committee member for the purpose of receiving notice; (ii) transmitted to an electronic mail address provided by the shareholder, director or committee member for the purpose of receiving notice; (iii) posted on an electronic network and a message is sent to the shareholder, director or committee member at the address provided by the shareholder, director or committee member for the purpose of alerting the shareholder, director or committee member of a posting; or (iv) communicated to the shareholder, director or committee member by any other form of electronic transmission consented to by the shareholder, director or committee member.

Section 9.4 Waiver of Notice . Whenever any notice is required to be given by law, the ~~Amended and Restated~~ Certificate of Formation or these By-Laws, a waiver thereof in writing signed by the person or persons entitled

to such notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. The business to be transacted at a regular or special meeting of the shareholders, directors, or members of a committee of directors or the purpose of a meeting is not required to be specified in a written waiver of notice or a waiver by electronic transmission unless required by the ~~Amended and Restated~~ Certificate of Formation. Attendance of a director at any meeting of the Board of Directors or any committee thereof, and attendance of a shareholder at any meeting of the shareholders shall constitute a waiver of notice of such meeting, except where a director or shareholder attends for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

Section 9.6 Telephone and Similar Meetings. ~~Shareholders, directors,~~Directors and committee members may participate in and hold meetings by means of conference telephone or ~~other similar means of remote communication equipment such that all participants in the meeting can communicate with each~~similar communications equipment, or another suitable electronic communications system, including videoconferencing technology or the Internet, or any combination thereof, if the telephone or other equipment or system permits each person participating in the meeting to communicate with all other persons participating in the meeting. Participation in such a meeting will constitute presence in person at the meeting, except when a ~~person~~director participates in the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting had not been lawfully called or convened.

ARTICLE X

AMENDMENTS

Section 10.1 Amendment of By-Laws. The By-Laws of the Corporation may be altered, amended or repealed or new By-Laws may be adopted by either the ~~unanimous action of the~~ Board of Directors or the shareholders. ~~Such equal power to alter, amend, or repeal the By-Laws or adopt new By-Laws was delegated to the Board of Directors by the adoption of this By-Law by the shareholders.~~

~~The foregoing is certified as a true and correct copy of the By-Laws of Atwood Oceanics, Inc., as of this 5th of May, 2006.~~


~~By:~~		~~/s/ John R. Irwin~~
		~~John R. Irwin, President~~

~~By:~~		~~/s/ James M. Holland~~
		~~James M. Holland, Secretary~~

As last amended: May 24, 2012.

EX-10.1 4 d360398dex101.htm FORM OF EXECUTIVE CHANGE OF CONTROL AGREEMENT Form of Executive Change of Control Agreement

Exhibit 10.1

EXECUTIVE CHANGE OF CONTROL AGREEMENT

THIS EXECUTIVE CHANGE OF CONTROL AGREEMENT (this “Agreement”) is entered into as of [date] (the “Effective Date”), by and between Atwood Oceanics, Inc., a Texas corporation (the “Company”), and [name] (the “Executive”). The parties agree as follows:

ARTICLE 1

PURPOSE AND TERM

1.1 Purpose. The Executive is currently an employee of the Company. The Company has determined that it is in the best interests of the Company and its shareholders to assure that the Company will have the continued dedication of the Executive, notwithstanding the possibility, threat or occurrence of a Change of Control of the Company. Furthermore, the Company has determined that it is imperative (i) to diminish the inevitable distraction of the Executive by virtue of the personal uncertainties and risks created by a pending or threatened Change of Control, (ii) to encourage the Executive’s full attention and dedication to the Company currently and in the event of any threatened or pending Change of Control, and (iii) to provide the Executive with compensation and benefits arrangements upon a Change of Control which ensure that the compensation and benefits expectations of the Executive will be satisfied and which are competitive with those of other corporations. In order to accomplish these objectives, and in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby enter into this Agreement.

1.2 Term. This Agreement shall be effective as of the Effective Date, and shall remain in effect until the third anniversary of any written notice of termination of the Agreement provided to the Executive by the Company or, if earlier, the Executive’s termination of employment for any reason prior to a Change of Control (the “Term”). Notwithstanding the foregoing, if a Change of Control occurs during the Term, the Term shall end on the later of (i) the date that is two (2) years after the occurrence of the Change of Control, or (ii) the satisfaction of all obligations of the Company arising under this Agreement as a result of the Change of Control.

ARTICLE 2

DEFINITIONS

As used herein, the following words and phrases shall have the following meanings:

2.1 Annual Salary. For purposes of this Agreement, “Annual Salary” shall mean the annual rate of the Executive’s salary applicable as of the Date of Termination or, if higher, the annual rate of the Executive’s salary applicable immediately prior to the Change of Control of the Company.

2.2 Board. For purposes of this Agreement, “Board” shall mean the board of directors of the Company.

2.3 Cause. For purposes of this Agreement, “Cause” shall mean: (i) a material breach by the Executive of the duties, obligations and responsibilities of Executive’s position with the Company (other than as a result of incapacity due to physical or mental illness) which is demonstrably willful and deliberate on the Executive’s part, which is committed in bad faith or without reasonable belief that such breach is in the best interests of the Company and which is not remedied in a reasonable period of time after receipt of written notice from the Company specifying such breach, or (ii) the conviction of the Executive of a felony involving moral turpitude.

2.4 Code. For purposes of this Agreement, “Code” shall mean the Internal Revenue Code of 1986, as amended.

2.5 Change of Control. For purposes of this Agreement, a “Change of Control” means each of the following:

(a) the acquisition after the Effective Date by any “person” (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of the combined voting power of the then outstanding capital stock of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that the following acquisitions shall not constitute a Change of Control: (i) any acquisition directly from the Company, (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any entity controlled by the Company, (iv) any acquisition approved by at least a majority of the members of the Incumbent Board (as such term is hereinafter defined) either prior to such acquisition or within five business days after the Company has notice of such acquisition, provided that, after such acquisition, such Person does not beneficial own more than 50% of the combined voting power of the Outstanding Company Voting Securities, or (v) any acquisition by any Person pursuant to a transaction which complies with clauses (A), (B) and (C) of subsection (c) of this Section 2.5;

(b) the first day on which individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the Effective Date whose election or appointment, or whose nomination for election by the Company’s shareholders, was approved by at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for purposes of this definition, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board;

(c) the consummation of (x) a reorganization, share exchange or merger involving the Company or (y) a sale of all or substantially all of the assets of the Company and its subsidiaries taken as a whole (other than by way of reorganization, share exchange or merger) to any Person other than a subsidiary of the Company (a transaction referred to in clause (x) or (y) is referred to as a “Business Combination”), in each case, unless, following such Business Combination, (A) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the combined voting power of the then outstanding capital stock entitled to vote generally in the election of directors (or comparable governing persons) of the Company or an entity that, as a result of such Business Combination, owns, directly or indirectly through one or more wholly owned subsidiaries, the Company or all or substantially all of its assets (the “Resulting Entity”; such capital stock is referred to as the “Outstanding Successor Voting Securities”), (B) no Person (excluding any employee benefit plan (or related trust) of the Company or the Resulting Entity and excluding any Person that beneficially owns 20% or more of the combined voting power of the Outstanding Company Voting Securities prior to such Business Combination, provided that such Person’s percentage ownership of the combined voting power of the Outstanding Successor Voting Securities does not increase as a result of such Business Combination) will beneficially own, directly or indirectly, 20% or more of the combined voting power of the then Outstanding Successor Voting Securities, and (C) at least a majority of the members of the board of directors (or comparable governing body) of the Resulting Entity were members of the Incumbent Board immediately prior to consummation of such Business Combination; or

(d) the adoption of a plan relating to the complete liquidation or dissolution of the Company.

2.6 Date of Termination. For purposes of this Agreement, “Date of Termination” means (i) if the Executive’s employment is terminated by the Company for Cause, the date of receipt of the notice of termination or any later date specified therein within thirty (30) days of such notice, as the case may be, (ii) if the Executive’s employment is terminated by the Executive for Good Reason, the effective date of such termination pursuant to Section 2.8, (iii) if the Executive’s employment is terminated by the Company other than for Cause or Disability, the date on which the Company notifies the Executive of such termination, (iv) if the Executive voluntarily resigns other than for Good Reason pursuant to Section 2.8, the date on which the Executive notifies the Company of such resignation, (v) if the Executive’s employment is terminated by reason of death, the date of death of the Executive, or (vi) if the Executive’s employment is terminated by the Company due to Disability, the date thirty (30) days after the Company’s written notice to the Executive.

2.7 Disability. For purposes of this Agreement, “Disability” shall mean the absence of the Executive from the Executive’s duties with the Company on a full-time basis for 180 consecutive days as a result of incapacity due to mental or physical illness which is determined to be total and permanent by a physician selected by the Company or its insurers and acceptable to the Executive or the Executive’s legal representative (such agreement as to acceptability not to be withheld unreasonably).

2.8 Good Reason. For purposes of this Agreement, “Good Reason” shall mean any of the following occurring on or after the Change of Control, (i) the assignment to the Executive of any duties inconsistent in any respect with the Executive’s position (including status, offices, titles and reporting requirements), authority, duties or responsibilities or any other action by the Company which results in a diminution in such position, authority, duties or responsibilities, in each case when compared to the Executive’s position, authority, duties or responsibilities immediately prior to the Change of Control; (ii) any failure by the Company to provide the Executive with the compensation and/or benefits to which Executive is entitled during employment with the Company, which compensation and/or benefits shall not be less, in the aggregate, than the Executive’s compensation and/or benefits prior to the Change of Control; (iii) the Company’s requiring the Executive to be based at any office or location outside the Greater Houston Statistical Metropolitan Area without the Executive’s consent and reasonable compensation for relocation expenses; (iv) any purported termination by the Company of the Executive’s employment otherwise than as expressly permitted by this Agreement; or (v) any failure by the Company to comply with and satisfy Section 7.6 hereof, provided that such successor has received at least ten days, prior written notice from the Company or the Executive of the requirements of Section 7.6 hereof. Executive’s termination shall not be considered for “Good Reason” unless Executive’s termination of employment occurs within twenty-four (24) months after the first occurrence of the facts constituting Good Reason, Executive gave the Company detailed written notice of such facts within 90 days after their first occurrence, and the Company failed to cure such Good Reason within 30 days after it received such detailed written notice. For purposes of this Section 2.8, any good faith determination of “Good Reason” made by the Executive shall be conclusive.

2.9 Target Annual Bonus. For purposes of this Agreement, “Target Annual Bonus” shall mean the greater of (1) Executive’s target annual cash bonus opportunity, determined by the Board in its sole discretion, for the fiscal year in which the Date of Termination occurs or, if no target annual bonus has been established for the fiscal year in which the Date of Termination occurs, the target annual bonus for the preceding fiscal year or (2) Executive’s target annual cash bonus for the fiscal year in which the Change of Control of the Company occurs.

ARTICLE 3

TERMINATION AFTER CHANGE OF CONTROL

3.1 Termination Upon Death. If the Executive’s employment with the Company terminates due to death within twenty-four (24) months following a Change of Control of the Company, this Agreement shall terminate; provided, however, that in any such event, the Company shall pay to the Executive’s estate (i) in a lump sum within thirty (30) days of the Date of Termination, any portion of the Annual Salary and accrued but unused vacation that shall have been earned by the Executive prior to the termination but not yet paid; (ii) in lump sum on the sixtieth (60th) day after the Date of Termination, an amount equal to the product of the Executive’s Target Annual Bonus and a fraction, the numerator of which is the lesser of the number of days the Executive has been an employee of the Company or its affiliates during the fiscal year in which the Date of Termination occurs or the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365; (iii) any benefits that have vested in the Executive as of the Date of Termination as a result of the Executive’s participation in any of the Company’s benefit plans; and (iv) any expenses with respect to which the Executive is entitled to reimbursement (collectively, the “Accrued Amounts”). In addition, Executive’s spouse and family, as applicable, shall be eligible for the Welfare Continuation Benefit described in Section 3.3(b) below.

3.2 Termination With Cause. The Company has the right, at any time, subject to all of the provisions hereof, exercisable by serving notice, effective on or after the date of service of such notice as specified therein, to terminate the Executive’s employment under this Agreement and discharge the Executive with Cause. If such right is exercised, the Company’s obligation to the Executive shall be limited solely to (i) the payment of any portion of the Annual Salary that shall have been earned by the Executive prior to the termination but not yet paid in a lump sum within thirty (30) days of the Date of Termination and (ii) any benefits that have vested in the Executive as of the Date of Termination as a result of the Executive’s participation in any of the Company’s benefit plans.

3.3 Termination by the Executive for Good Reason or by the Company Without Cause. The Company has the right, at any time, subject to all of the provisions hereof, exercisable by serving notice, effective on or after the date of service of such notice as specified therein, to terminate the Executive’s employment under this Agreement and discharge the Executive without Cause. If the Company terminates the Executive’s employment without Cause or the Executive terminates the Executive’s employment for Good Reason, provided that the foregoing terminations occur within twenty-four (24) months after a Change of Control of the Company (a “Qualifying Termination”), then the Company’s obligation to the Executive shall be limited solely to the following:

(a) Severance Payments. The Company shall pay the Executive:

(i) the Accrued Amounts (payable at the same time and in the same manner as set forth in Section 3.1); and

(ii) in lump sum on the sixtieth (60th) day after the Date of Termination, an amount equal to [applicable multiple] times the sum of (1) the Executive’s Annual Salary, plus (2) the Executive’s Target Annual Bonus.

(b) Extension of Medical Benefits. The Company shall provide to Executive and/or Executive’s spouse and family, as the case may be, continued participation in the welfare benefit plans, policies and programs in which Executive and/or Executive’s spouse or family, as the case may be, participated in immediately prior to the Date of Termination, but not less benefits, in the aggregate, than Executive and/or Executive’s spouse and family received immediately prior to the Change of Control, as if Executive’s employment had not terminated and at no cost to the Executive (the “Welfare Continuation Benefit”). The Welfare Continuation Benefit shall be provided for the period beginning on the Date of Termination and ending on the date that is twenty-four (24) months after the Date of Termination; provided, however, that during the period of the first six (6) months following Executive’s Separation from Service (as defined in Section 7.1(a), except in the case of health plan premiums or other medical benefits the payment of which would generally constitute deductible medical expenses under Section 213 of the Code, the Executive’s receipt of such benefits and coverages shall be at the Executive’s cost, paid to the Company by the Executive monthly in cash, and the Company shall reimburse the total amount of such cost paid by the Executive to him in a single cash payment as soon as administratively feasible following the end of such six-month period.

(c) Option Exercise. Any stock options held by the Executive as of the Change of Control of the Company that remain outstanding as of the Date of Termination may thereafter be exercised until the later of (A) the last date on which such stock options would be exercisable in the absence of this Section 3.3(c) or B the first anniversary of the Date of Termination. Notwithstanding the preceding sentence, in no event will any stock options remain exercisable later than the earlier of (i) the original expiration date of such stock options or (ii) the tenth anniversary of the original grant date for such stock options.

3.4 Termination by the Executive. Upon any termination of this Agreement by the Executive, except such termination as is deemed to be a Qualifying Termination under this Agreement, the Company’s obligation to the Executive shall be limited solely to the payment of the Accrued Amounts (at the same time and in the same manner as set forth in Section 3.1).

3.5 Termination upon Disability. If the Executive’s employment is terminated due to Disability and within twenty-four (24) months after a Change of Control of the Company, the Company’s obligation to the Executive shall be limited solely to the payment of the Accrued Amounts (at the same time and in the same manner as set forth in Section 3.1) and provision of the Welfare Continuation Benefit.

ARTICLE 4

PARACHUTE PAYMENTS

4.1 Parachute Payments. It is the objective of this Agreement to maximize the Executive’s Net After-Tax Benefit (as defined herein) if payments or benefits provided under this Agreement are subject to excise tax under Section 4999 of Code. Therefore, in the event it is determined that any payment or benefit by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, including, by example and not by way of limitation, acceleration by the Company or otherwise of the date of vesting or payment or rate of payment under any plan, program or arrangement of the Company, would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall first make a calculation under which such payments or benefits provided to the Executive under this Agreement are reduced to the extent necessary so that no portion thereof shall be subject to the excise tax imposed by Section 4999 of the Code (the “4999 Limit”). The Company shall then compare (x) the Executive’s Net After-Tax Benefit assuming application of the 4999 Limit with (y) the Executive’s Net After-Tax Benefit without the application of the 4999 Limit and the Executive shall be entitled to the greater of (x) or (y). “Net After-Tax Benefit” shall mean the sum of (i) all payments and benefits which the Executive receives or is then entitled to receive from the Company, less (ii) the amount of federal income taxes payable with respect to the payments and benefits described in (i) above calculated at the maximum

marginal income tax rate for each year in which such payments and benefits shall be paid to the Executive (based upon the rate for such year as set forth in the Code at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the Code. The determination of whether a payment or benefit constitutes an excess parachute payment shall be made by tax counsel selected by the Company and reasonably acceptable to the Executive. The costs of obtaining this determination shall be borne by the Company.

ARTICLE 5

CONFIDENTIALITY

5.1 Confidentiality. The Executive shall at all times hold in a fiduciary capacity for the benefit of the Company all secret or confidential information, knowledge or data relating to the Company or any of its affiliated companies, and their respective businesses, which shall have been obtained by the Executive during the Executive’s employment by the Company or any of its affiliated companies and which shall not be or become public knowledge (other than by acts by the Executive or representatives of the Executive in violation of this Agreement). After termination of the Executive’s employment with the Company, the Executive shall not, without the prior written consent of the Company or as may otherwise be required by law or legal process, communicate or divulge any such information, knowledge or data to anyone other than the Company and those designated by it. In no event shall an asserted violation of the provisions of this Section 5.1 constitute a basis for deferring or withholding any amounts otherwise payable to the Executive under this Agreement.

ARTICLE 6

INSURANCE

6.1 Insurance. The Company shall secure and maintain Director’s and Officer’s liability insurance covering Executive. The Company may, from time to time, apply for and take out, in its own name and at its own expense, naming itself or one or more of its affiliates as the designated beneficiary (which it may change from time to time), policies for life, health, accident, disability or other insurance upon the Executive in any amount or amounts that it may deem necessary or appropriate to protect its interest. The Executive agrees to aid the Company in procuring such insurance by submitting to medical examinations and by completing, executing and delivering such applications and other instruments in writing as may reasonably be required by an insurance company or companies to which any application or applications for insurance may be made by or for the Company.

ARTICLE 7

OTHER PROVISIONS

7.1 Section 409A.

(a) Separation from Service. Notwithstanding anything to the contrary in this Agreement, with respect to any amounts payable to Executive under this Agreement in connection with a termination of Executive’s employment that would be considered “non-qualified deferred compensation” under Section 409A of the Code, in no event shall

a termination of employment be considered to have occurred under this Agreement unless such termination constitutes Executive’s “separation from service” with the Company as such term is defined in Treasury Regulation Section 1.409A-1(h), and any successor provision thereto (“Separation from Service”).

(b) Section 409A Compliance. Notwithstanding anything to the contrary in this Agreement, to the maximum extent permitted by applicable law, any severance payments payable to Executive under this Agreement shall be made in reliance upon Treasury Regulation Section 1.409A-1(b)(9)(iii) (relating to separation pay plans) or Treasury Regulation Section 1.409A-1(b)(4) (relating to short-term deferrals). However, to the extent any such payments are treated as “non-qualified deferred compensation” subject to Section 409A of the Code, and if Executive is deemed at the time of his Separation from Service to be A “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, then to the extent delayed commencement of any portion of the benefits to which Executive is entitled under this Agreement is required in order to avoid a prohibited payment under Section 409A(a)(2)(B)(i) of the Code, such portion of Executive’s termination benefits shall not be provided to the Executive prior to the earlier of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service or (ii) the date of Executive’s death. Upon the earlier of such dates, all payments deferred pursuant to this Section shall be paid in a lump sum to Executive (or Executive’s estate). The determination of whether Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of the time of his Separation from Service shall be made by Company in accordance with the terms of Section 409A of the Code, and applicable guidance thereunder (including without limitation Treasury Regulation Section 1.409A-1(i) and any successor provision thereto). Notwithstanding anything in this Agreement to the contrary, to the extent the Company determines necessary to comply with the requirements of Section 409A of the Code with respect to any payment under this Agreement, no “Change of Control” shall be deemed to occur unless and until the event also satisfies the requirements of a “change in control event” within the meaning of Section 409A of the Code and applicable regulations. With respect to any of Executive’s awards of, or relating to, equity of the Company that are outstanding as of the Effective Date or are granted to Executive in the future (“Awards”), such Awards shall be administered in a manner that is either compliant with or exempt from the requirements of Section 409A of the Code, and the Change of Control definition applicable to such Awards shall, to the extent necessary to comply with Section 409A of the Code, be limited to an event that satisfies the requirements of a “change in control event” within the meaning of Section 409A of the Code and applicable regulations.

(c) Section 409A; Separate Payments. This Agreement is intended to be written, administered, interpreted and construed in a manner such that no payment or benefits provided under the Agreement become subject to (a) the gross income inclusion set forth within Section 409A(a)(1)(B) of the Code or (b) the interest and additional tax set forth within Section 409A(a)(1)(B) of the Code (collectively, “Section 409A Penalties”), including, where appropriate, the construction of defined terms to have meanings that would not cause the imposition of Section 409A Penalties. For purposes of Section 409A of the Code (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), each payment that Executive may be eligible to receive under this Agreement shall be treated as a separate and distinct payment and shall not collectively be treated as a single payment.

(d) In-kind Benefits and Reimbursements. Notwithstanding anything to the contrary in this Agreement or in any Employer policy with respect to such payments, in- kind benefits and reimbursements provided under this Agreement during any tax year of Executive shall not affect in-kind benefits or reimbursements to be provided in any other tax year of Executive and are not subject to liquidation or exchange for another benefit. Notwithstanding anything to the contrary in this Agreement, reimbursement requests must be timely submitted by Executive and, if timely submitted, reimbursement payments shall be made to Executive as soon as administratively practicable following such submission in accordance with the Company’s policies regarding reimbursements, but in no event later than the last day of Executive’s taxable year following the taxable year in which the expense was incurred. This Section 7.1(d) shall only apply to in-kind benefits and reimbursements that would result in taxable compensation income to Executive.

7.2 Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally, sent by courier service, sent by facsimile transmission or sent by certified, registered or express mail, postage prepaid. Any such notice shall be deemed given when so delivered personally or sent by facsimile transmission or, if mailed or sent by courier service, on the date of actual receipt thereof, as follows:


		(1)		if to the Company, to:
				Atwood Oceanics, Inc.
				15835 Park Ten Place Drive
				Houston, TX 77084
				Attn: General Counsel

		(2)		if to the Executive, to:

Any party may change its address for notice hereunder by notice to the other party hereto.

7.3 Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements (including but not limited to prior executive agreements), written or oral, with respect thereto. Notwithstanding the foregoing, this Agreement does not supersede the Atwood Oceanics, Inc. Restated Executive Life Insurance Plan (the “Executive Life Plan”), the Executive’s Salary Continuation Agreement under the Executive Life Plan, any indemnification agreements between Executive and the Company and any contrary terms under applicable Company equity incentive plans. The Executive acknowledges and agrees that the Executive shall not be entitled to participate in any Company severance plans, including, but not limited to, the Atwood Oceanics, Inc. Change of Control Severance Plan, and shall not be entitled to severance benefits except as provided in this Agreement.

7.4 Waivers and Amendments. This Agreement may be amended, superseded, canceled, renewed or extended, and the terms and conditions hereof may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any waiver on the part of any party of any such right, power or privilege hereunder, nor any single or partial exercise of any right, power or privilege hereunder, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.

7.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas (without giving effect to the choice of law provisions thereof) where the employment of the Executive shall be deemed, in part, to be performed. Enforcement of this Agreement or any action taken or held with respect to this Agreement shall be taken in the courts of appropriate jurisdiction in Harris County, Texas.

7.6 Assignment. This Agreement, and any rights and obligations hereunder, may not be assigned by the Executive and may be assigned by the Company only to a successor by merger or purchasers of substantially all of the assets of the Company or its affiliates. The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes this Agreement by operation of law, or otherwise.

7.7 Counterparts. This Agreement may be executed in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all of which together shall constitute one and the same instrument.

7.8 Headings. The headings in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.

7.9 No Presumption Against Interest. This Agreement has been negotiated, drafted, edited and reviewed by the respective parties, and therefore, no provision arising directly or indirectly herefrom shall be construed against any party as being drafted by said party.

7.10 No Duty to Mitigate. The Executive shall have no obligation to mitigate damages suffered as a result of termination of the Executive’s employment with the Company. The provisions of this Section 7.10 shall survive termination of this Agreement.

7.11 Resolution of Disputes. If there shall be any dispute between the Company and the Executive (i) in the event of any termination of the Executive’s employment by the Company for any reason other than death, or (ii) in the event of any termination of employment by the Executive or determination of whether Good Reason existed, then, unless and until there is a final, nonappealable judgment by a court of competent jurisdiction declaring that such termination by the Company was for Cause or Disability or that the determination by the

Executive of the existence of Good Reason was not made in good faith, as the case may be, the Company shall pay all amounts, and provide all benefits, to the Executive and/or the Executive’s family or other beneficiaries, as the case may be, that the Company would be required to pay or provide pursuant to Section 3 as though such termination were by the Company without Cause and not for Disability or by the Executive with Good Reason; provided, however, that the Company shall not be required to pay any disputed amounts pursuant to this Section except upon receipt of an undertaking by or on behalf of the Executive and/or the Executive’s family or other beneficiaries, as the case may be, to repay all such amounts to which the Executive is ultimately adjudged by such court not to be entitled.

7.12 Binding Agreement. Subject to Section 7.6, this Agreement shall inure to the benefit of and be binding upon the Company and its respective successors and assigns and the Executive and the Executive’s legal representatives.

7.13 Withholding. The Company may withhold from any amounts payable under this Agreement such federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation and any deductions authorized by Executive.

7.14 Attorney’s Fees and Costs. If the Company breaches any provision of this Agreement in any respect, then the Company shall reimburse or advance to the Executive the funds necessary for payment of costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any proceeding in advance of the final disposition of such proceeding incurred by the Executive in enforcing this Agreement, provided that the Executive shall be entitled to advancement of Executive’s costs and expenses only upon receipt by the Company of an undertaking, by or on behalf of the Executive, to repay any such amount so advanced if it shall ultimately be determined after the case is final and all appeals have been exhausted (or the election has been made not to file appeals) by a final judgment or award that the Company has obtained in its favor against all of Executive’s claims against the Company.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.


EXECUTIVE


[NAME]

COMPANY

ATWOOD OCEANICS, INC.

By:
Name:
Title:

EX-10.2 5 d360398dex102.htm FIRST AMENDMENT TO SALARY CONTINUATION AGREEMENT First Amendment to Salary Continuation Agreement

Exhibit 10.2

ATWOOD OCEANICS, INC. SALARY CONTINUATION PLAN

(Formerly the Restated Executive Life Insurance Plan)

FIRST AMENDMENT

WHEREAS, Atwood Oceanics, Inc., a Texas corporation (the “Company”), has adopted and maintains the Atwood Oceanics, Inc. Restated Executive Life Insurance Plan (the “Plan”) for the benefit of the Company’s executive officers and other designated key employees; and

WHEREAS, pursuant to Section 4.1 of the Plan, the Company has reserved the right to change, modify, amend or terminate the Plan at any time; and

WHEREAS, the Company desires to rename the Plan, to prospectively modify the terms of the Plan regarding participation in the Plan and to update the definition of “Change of Control” for purposes of the Plan.

NOW, THEREFORE, the Company hereby amends the Plan, effective as of May 24, 2012, as follows:

1. The Plan is hereby amended to change the name of the Plan to the “Atwood Oceanics, Inc. Salary Continuation Plan”.

2. Section 2.1 of the Plan is hereby amended in its entirety to read as follows:

“2.1 Eligibility and Benefits. Individuals who are eligible to participate in the Plan are those listed on Exhibit A attached hereto. The Board of Directors of the Company (the ‘Board’) may, from time to time, designate additional full-time key employees as eligible participants in the Plan by delivery of written notice to such employees and amendment of Exhibit A. Such individuals are eligible for benefits pursuant to the Plan and are referred to as ‘Executives’ for purposes of the Plan. Benefits shall be payable only in event of the death of the Executive while the Executive is engaged in ‘active employment’ with the Company. For purposes of the Plan, ‘active employment’ means the Executive must be working for the Company or a subsidiary of the Company at the time of death on a full-time basis and paid regular earnings.”

3. Section 2.5 of the Plan is hereby amended in its entirety to read as follows:

“2.5 Change in Control. In the event of a termination of any Executive’s Employment with the Company during the two and one-half year period immediately following a Change in Control, then any Salary Continuation Agreement between the Company and such Executive shall remain in effect, and the Company and/or its successor shall be obligated to consider such Executive as having remained in active employment with the Company, and such Executive shall be deemed to remain in active employment with the Company for purposes of determining eligibility for benefits under the Plan, until the earlier of (i) the death of such Executive (at which time the right of the estate or the designated beneficiaries of such Executive under the Plan and the related Salary Continuation Agreement shall have been established), or (ii) the expiration of the two and one-half year period following the Change in Control. For purposes of this Plan, ‘Change in Control’ means each of the following:

a. the acquisition after the Effective Date by any ‘person’ (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the ‘Exchange Act’)) (a ‘Person’) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of the combined voting power of the then outstanding capital stock of the Company entitled to vote generally in the election of directors (the ‘Outstanding Company Voting Securities’); provided, however, that the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly from the Company, (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any entity controlled by the Company, (iv) any acquisition approved by at least a majority of the members of the Incumbent Board (as such term is hereinafter defined) either prior to such acquisition or within five business days after the Company has notice of such acquisition, provided that, after such acquisition, such Person does not beneficial own more than 50% of the combined voting power of the Outstanding Company Voting Securities, or (v) any acquisition by any Person pursuant to a transaction which complies with clauses (A), (B) and (C) of subsection (c) of this Section 2.5;

b. the first day on which individuals who, as of May 1, 2012, constitute the Board (the ‘Incumbent Board’) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to May 1, 2012 whose election or appointment, or whose nomination for election by the Company’s shareholders, was approved by at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for purposes of this definition, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board;

c. the consummation of (x) a reorganization, share exchange or merger involving the Company or (y) a sale of all or substantially all of the assets of the Company and its subsidiaries taken as a whole (other than by way of reorganization, share exchange or merger) to any Person other than a subsidiary of the Company (a transaction referred to in clause (x) or (y) is referred to as a ‘Business Combination’), in each case, unless, following such Business Combination, (A) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the outstanding shares of common stock of the Company (the ‘Outstanding Company Common Stock’) and Outstanding Company Voting Securities immediately prior to such Business Combination

beneficially own, directly or indirectly, more than 50% of the combined voting power of the then outstanding capital stock entitled to vote generally in the election of directors (or comparable governing persons) of the Company or an entity that, as a result of such Business Combination, owns, directly or indirectly through one or more wholly owned subsidiaries, the Company or all or substantially all of its assets (the ‘Resulting Entity’; such capital stock is referred to as the ‘Outstanding Successor Voting Securities’), (B) no Person (excluding any employee benefit plan (or related trust) of the Company or the Resulting Entity and excluding any Person that beneficially owns 20% or more of the combined voting power of the Outstanding Company Voting Securities prior to such Business Combination, provided that such Person’s percentage ownership of the combined voting power of the Outstanding Successor Voting Securities does not increase as a result of such Business Combination) will beneficially own, directly or indirectly, 20% or more of the combined voting power of the then Outstanding Successor Voting Securities, and (C) at least a majority of the members of the board of directors (or comparable governing body) of the Resulting Entity were members of the Incumbent Board immediately prior to consummation of such Business Combination; or

d. the adoption of a plan relating to the complete liquidation or dissolution of the Company.”

4. Section 4.1 of the Plan is hereby amended by deleting the parenthetical therein.

5. The Plan is hereby amended to add a new Exhibit A to the Plan in the form attached hereto as Addendum 1 to this First Amendment.

6. All other provisions of the Plan shall remain the same and are hereby ratified.

IN WITNESS WHEREOF, Atwood Oceanics, Inc. has executed this First Amendment to the Atwood Oceanics, Inc. Restated Executive Life Insurance Plan this 29th day of May, 2012, to be effective May 24, 2012.


ATWOOD OCEANICS, INC.

By:	/s/ Walter A. Baker
	Name:	Walter A. Baker
	Title:	Vice President, General Counsel and Corporate Secretary

EX-10.3 6 d360398dex103.htm FORM OF SALARY CONTINUATION AGREEMENT Form of Salary Continuation Agreement

Exhibit 10.3

[ATWOOD OCEANICS, INC. LETTERHEAD]

, 2012

[Name]

[Address]

Re:

SALARY CONTINUATION AGREEMENT

Dear :

As a full-time key employee of Atwood Oceanics, Inc. (the “Company”), the Board of Directors of the Company has designated you as an “Executive” eligible for deferred compensation in accordance with the terms and conditions of the Atwood Oceanics, Inc. Salary Continuation Plan (the “Plan”). The Plan provides for payments of deferred compensation in the event of your death while actively employed, all in accordance with the terms and conditions of the Plan and this Salary Continuation Agreement, which is being entered into to memorialize your eligibility for a benefit under the Plan. This Salary Continuation Agreement supersedes any previous salary continuation agreement between you and the Company and supersedes any other oral or written agreement or understanding regarding your participation in the Plan.

The following is a summary of certain terms applicable to you under the Plan, and you are the “Executive” for purposes of the summary. Please sign a copy of the Salary Continuation Agreement to acknowledge receipt, and please execute the attached Beneficiary Designation Form. Then return a signed copy of both to the Company.

1. Salary Continuation Upon Death. The Company hereby agrees to pay Executive deferred compensation in the following amount:

a. Two and one-half (2¹/2) times the Executive’s annual salary at the time of death, excluding bonuses and other additional compensation, upon the death of the Executive prior to age 70 during active employment with the Company, if the death is due to other than accidental causes; or

b. Five (5) times the Executive’s annual salary at the time of death, excluding bonuses and other additional compensation, upon the death of the Executive prior to age 70 during active employment with the Company, if the death is due to accidental causes.

2. Payment of Deferred Compensation. The deferred compensation shall be paid in thirty (30) equal monthly installments in the event of death due to other than accidental causes, or in sixty (60) equal monthly installments in the event of death due to accidental causes, beginning on the last day of the month following the month during which the death of Executive occurs. The deferred compensation paid by the Company hereunder shall be subject to federal withholding, FICA, Medicare and, other applicable taxes.


[Addressee]				[Date]

3. Designation of Beneficiary. The deferred compensation payable hereunder shall be paid by the Company to the beneficiary designated by the Executive. The beneficiary designation or any request for change of the beneficiary must be filed in writing with the Company on the form attached hereto as Exhibit A or on any such other form as may be deemed acceptable to the Company. Any request for a change of beneficiary will take effect as the date a new beneficiary designation signed by the Executive is filed with the Company. The consent of the beneficiary will not be required to change any beneficiary designation.

4. Automatic Termination. This eligibility for benefits granted hereunder shall terminate automatically without any further action on the part of the Company or the Executive in the event that, for any reason whatsoever (other than as described in Section 6 hereof) prior to the death of the Executive, the Executive ceases to be engaged in active employment with the Company. For purposes hereof, “active employment” means the Executive must be working for the Company or subsidiary of the Company at the time of death on a permanent full-time basis and paid regular earnings.

5. Change in Control. In the event of a termination of the Executive’s Employment with the Company during the two and one-half year period immediately following a Change in Control (as defined in the Plan), then this Salary Continuation Agreement shall remain in effect, and the Company and/or its successor shall be obligated to consider the Executive as having remained in active employment with the Company, and the Executive shall be deemed to remain in active employment with the Company for purposes of determining eligibility for benefits under the Plan, until the earlier of (i) the death of the Executive (at which time the right of the estate or the designated beneficiaries of the Executive under the Plan this Salary Continuation Agreement shall have been established), or (ii) the expiration of the two and one-half period following the Change in Control.

6. Insurance Proceeds. The Executive acknowledges and agrees that the Company may, but shall not be obligated to, fund the deferred compensation payable hereunder with the proceeds of insurance maintained by the Company on the life of the Executive. Executive agrees to (a) furnish any and all information reasonably requested by the Company or the insurer to facilitate the issuance of a life insurance policy or policies, including any adjustment to any such policy or policies, and (b) take such physical examinations as are required by any prospective insurer. Notwithstanding the foregoing, the benefits under the Plan are not contingent upon Executive’s eligibility for life insurance coverage. No property of the Company is or shall be, by reason hereof, held in trust for the Executive, nor shall the Executive or his heirs, successor or assigns have any interest in or any lien or prior claim upon any property of the Company by reason hereof or the Company’s obligations to make payments herein under.

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[Addressee]				[Date]

7. Limitations. The terms and provisions hereof are in all respects subject to and limited by the terms and provisions of the Plan, specifically including without limitation, Article IV thereof, which addresses the Company’s ability to change, modify, amend or terminate the Plan.

8. Miscellaneous.

a. Notices. All notices, requests, consents and other communications hereunder shall be in writing and shall be deemed to have been given if personally delivered, telecopied or mailed, first class, registered or certified mail, postage prepaid and addressed as follows:

If to the Company:

(i)

Atwood Oceanics, Inc.

15835 Park Ten Place Drive

Houston, Texas 77084

Attention: General Counsel

Telephone: (281) 749-7800

(ii)

If to the Executive:

[Name]

[Address]

Telephone:

or at such other address as shall be given in writing by any party to the other party hereto.

b. Headings. Section and paragraph headings contained herein are for reference purposes only and shall not affect in any way the meaning or interpretation of this Salary Continuation Agreement.

c. Successors and Assigns. The rights and obligations hereunder shall bind and inure to the benefit of the parties and their respective heirs, successors and assigns.

d. Entire Agreement. This Salary Continuation Agreement and the related Atwood Oceanics, Inc. Salary Continuation Plan constitutes the entire understanding and agreement between the parties hereto with respect to the subject matter hereof, and there are no agreements, understandings, restrictions, representations warranties between such parties other than those set forth herein, all other agreements and understanding being superseded hereby.

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[Addressee]				[Date]

e. Governing Law. The rights and obligations of the parties hereunder shall be construed and enforced in accordance with and governed by the laws of the State of Texas, without regard to any conflict of laws provisions thereof.

f. Severability. Whenever possible, each provision hereof shall be interpreted in such matter as to be effective and valid under applicable law but if any provision hereof shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extend of such provision or invalidity, without invalidating the remainder of such provision or the remaining provisions hereof.

g. Section 409A of the Internal Revenue Code. For purposes of Section 409A of the Internal Revenue Code and related regulations and guidance (“Section 409A”), the Plan and this Salary Continuation Agreement are not “nonqualified deferred compensation plans”, within the meaning of Treasury Regulation Section 1.409A-1(a), and are exempt from Section 409A as a plan that provides solely for a death benefit.


ATWOOD OCEANICS, INC.

By:
		[Name]
		[Title]

Acknowledge and agreed to this

day of , 2012.

[Name]

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Exhibit A

BENEFICIARY DESIGNATION FORM

A-1

ATWOOD OCEANICS, INC.

SALARY CONTINUATION PLAN

Beneficiary Designation Form

In the event of Executive’s death, Executive hereby designates the Beneficiary(ies) identified below to receive the benefit (if any) payable under the Salary Continuation Plan. Executive reserves the full right to revoke or modify this designation at any time by a subsequent written designation in the manner described below.

If no Primary Beneficiary survives Executive, Executive hereby designates the following to be the Beneficiary or Beneficiaries.

This Beneficiary Designation Form is effective until Executive files another such designation and that Beneficiary Designation Form is acknowledged and accepted by Atwood Oceanics, Inc. (the “Company”). Upon acknowledgment and acceptance by the Company, all previous Beneficiary Designation Forms are hereby revoked.

Executive acknowledges that any change of Beneficiary will not be effective until acknowledged and accepted by the Company’s most senior human resources employee, or his or her designee.

If Executive elects more than one Primary or Contingent Beneficiary and one of the Primary or Contingent Beneficiaries predeceases Executive, that person’s share will be allocated pro rata to Executive’s other surviving Primary or Contingent Beneficiaries, as applicable. Payment may be made to the executor or the administrator of the Executive’s estate if the Executive dies without having designated a beneficiary or if no designated beneficiary survives the Executive. The Beneficiary Designation Form on file with the Company will control, consequently, Executive should be aware that if Executive’s circumstances change through divorce, re-marriage or other event, Executive should consider execution of a new Beneficiary Designation Form.




Executive’s Name (Printed)	Signature of Executive	Date

ACKNOWLEDGMENT


	For the Company	Date

A-2