MetLife Inc. [ $MET ] Outlook call Presentation for 12/11/2015

 

Slide 1

Edward A. Spehar Senior Vice President
& Head of Investor Relations OUTLOOK CALL 2 0 1 5 December 11, 2015 Exhibit 99.1


Slide 2

Cautionary Statement on Forward-Looking
Statements and Non-GAAP Financial Information This presentation may contain or incorporate by reference forward-looking statements.  Forward-looking statements give expectations or forecasts of future events and use words such as
“anticipate,” “estimate,” “expect,” “project” and other terms of similar meaning, or that are tied to future periods.  Any or all forward-looking statements may turn out to be wrong, and actual
results that could differ materially from those expressed or implied in the forward-looking statements. Predictions of future performance are inherently difficult and are subject to numerous risks and uncertainties, including those identified in the
“Risk Factors” section of MetLife, Inc.’s filings with the U.S. Securities and Exchange Commission.  The company does not undertake any obligation to publicly correct or update any forward-looking statement if it later becomes
aware that such statement is not likely to be achieved.  Additional discussion of forward-looking statements may be included in other slides in this presentation; if so, please refer to those slides for more information.   This
presentation may also contain measures that are not calculated based on accounting principles generally accepted in the United States of America, also known as GAAP.  Additional discussion of non-GAAP financial information may be included in
other slides in these materials, on the Investor Relations portion of MetLife’s website (www.metlife.com), or elsewhere on that website; if so, please refer to those slides or the website for more information.


Slide 3

Agenda Overview Steven A. Kandarian
Chairman, President & Chief Executive Officer U.S. Business Eric Steigerwalt Executive Vice President, U.S. Business Latin America Oscar Schmidt Executive Vice President, Latin America Asia Christopher Townsend President, Asia EMEA Michel Khalaf
President, Europe, Middle East and Africa Financial Update John C.R. Hele Chief Financial Officer Closing Remarks Steven A. Kandarian Chairman, President & Chief Executive Officer Q&A


Slide 4

Steven A. Kandarian Chairman, President
& Chief Executive Officer OUTLOOK CALL 2 0 1 5 December 11, 2015


Slide 5

Raising Expectations for Free Cash Flow
2 26% 36% 44% 55%-65% Free Cash Flow as a Percentage of Operating Earnings 1 Estimated operating earnings for 2015 have been adjusted to exclude a non-cash charge of $792 million, net of income tax, related to an uncertain tax position. Unadjusted,
the free cash flow ratio would be approximately 70%. 2 Bar represents mid-point of range. See Appendix for non-GAAP financial information, definitions and/or reconciliations. ~60% 1


Slide 6

Material Increase in Capital Return to
Shareholders Total Shareholder Distributions1 ($ in billions) 1Total shareholder distributions = common stock dividends plus common stock repurchases, net of non-compensatory common stock issuances. Total shareholder distributions for 2011 include
approximately $3.0 billion used to redeem preferred stock convertible into common stock using the proceeds of an issuance of common stock. 2 Total payout ratio = total shareholder distributions divided by operating earnings. 3 Operating earnings for
3Q15 YTD have been adjusted to exclude a non-cash charge of $792 million, net of income tax, related to an uncertain tax position. Unadjusted, the total payout ratio would be approximately 57%. See Appendix for non-GAAP financial information,
definitions and/or reconciliations. Total Payout Ratio2 17% (3%) 2% 23% 48%3 3Q15 YTD


Slide 7

Goals of Outlook Call Improve
understanding of MetLife’s business model Provide high quality information and more transparency Focus on multi-year outlook, the driver of shareholder value


Slide 8

Focus of This Year’s Outlook Call
is 2016 to 2018 Quantitative and qualitative information to help you forecast earnings for the near-term (one to three years) “Accelerating Value” initiative expected to drive meaningful change; premature to update long-term outlook Plan
to provide more insights on initiative at Investor Day in second half of 2016


Slide 9

Key Near-Term Macro Assumptions 5%
annual appreciation in S&P 500 U.S. interest rates based on consensus and internal forecast1 10-year U.S. Treasury: 2.33% at 12/31/15, 2.98% at 12/31/16, 3.24% at 12/31/17 and 3.45% at 12/31/18 Three-month LIBOR: 0.42% at 12/31/15, 1.41% at
12/31/16, 1.99% at 12/31/17 and 2.45% at 12/31/18 Exchange rates at consensus Yen/$ average of 125 in 2016, 2017 and 2018 Mexican peso/$ average of 16.5 for 2016, 15.8 for 2017 and 15.7 for 2018 1 Rates based on external consensus for next six
quarters and internal forecast thereafter.


Slide 10

Eric Steigerwalt Executive Vice
President U.S. Business OUTLOOK CALL 2 0 1 5 December 11, 2015


Slide 11

U.S. Business Overview Continue to
accelerate growth in Group, Voluntary & Worksite Benefits Pursue Corporate Benefit Funding growth at appropriate risk and return Continue to execute on Retail strategic plan Double-digit growth in Voluntary / Worksite Strong pension risk
transfer market Continued sales growth in Retail Spread compression Uncertain capital rules and regulatory environment Near-Term Outlook: Opportunities See Appendix for non-GAAP financial information, definitions and/or reconciliations. Near-Term
Outlook: Challenges Key Strategies


Slide 12

Group, Voluntary & Worksite
Benefits Operating Earnings Analysis ($ in millions) 4Q14 – 3Q15 Reported Operating Earnings $935 Reported notable items1:   Variable investment income, as compared to plan ($11) Catastrophe experience and prior year development, net ($8)
Actuarial assumption review and other insurance adjustments $9 Baseline Operating Earnings $925 1 Cumulative impact, as reported in 3Q15 quarterly financial supplement. Reported notable items represent a positive (negative) impact to baseline
operating earnings. See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 13

Group, Voluntary & Worksite
Benefits Key Sensitivities 1 Includes catastrophes. See Appendix for non-GAAP financial information, definitions and/or reconciliations. 1% change in Group Life mortality ratio translates to approximately $40 million of operating earnings 1% change
in Non-Medical Health interest adjusted loss ratio translates to approximately $45 million of operating earnings 1% change in Property & Casualty (“P&C”) combined ratio1 translates to approximately $10 million of operating
earnings


Slide 14

Modest job growth offset by slow
wage growth Aggressive life and dental pricing environment Group, Voluntary & Worksite Benefits Factors Driving Near-Term Outlook Demand for voluntary products as responsibility shifts to employees Evolving distribution landscape Increase share
in mid-sized and small employer group markets Opportunities Challenges


Slide 15

Group, Voluntary & Worksite
Benefits Near-Term Guidance on Certain Key Items 1 LTM = 4Q14 to 3Q15. 2 Includes catastrophes. See Appendix for non-GAAP financial information, definitions and/or reconciliations. Expect growth in operating premiums, fees and other revenues (PFOs)
of 3-5% in 2016, with acceleration in 2017-2018 Group Life mortality ratio of 87.4% in latest twelve months (LTM)1; expect within targeted range of 85-90% Non-Medical Health interest adjusted loss ratio of 79.2% in LTM; expect within targeted range
of 77-82% P&C combined ratio of 96.8%2 in LTM; expect within targeted range of 95-99%


Slide 16

Group, Voluntary & Worksite
Benefits Near-Term Guidance on Certain Key Items (Continued) 1 Includes variable investment income. See Appendix for non-GAAP financial information, definitions and/or reconciliations. Investment income spread of 255 bps1 in LTM; expect within
210-230 bps for 2016, 170-190 bps for 2017 and 155-175 bps for 2018 Accelerating top-line growth and expense control expected to add 40-50 bps to after-tax margin on operating PFOs in 2016 Changes to expense allocations and interest on capital
expected to decrease 2016 operating earnings by approximately $50 million


Slide 17

Corporate Benefit Funding Operating
Earnings Analysis ($ in millions) 4Q14 – 3Q15 Reported Operating Earnings $1,461 Reported notable items1:   Variable investment income, as compared to plan ($12) Tax adjustments $1 Baseline Operating Earnings $1,450 1 Cumulative impact,
as reported in 3Q15 quarterly financial supplement. Reported notable items represent a positive (negative) impact to baseline operating earnings. See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 18

Corporate Benefit Funding Key
Sensitivities $1 billion of pension risk transfer sales translates to approximately $10 million of operating earnings 10 bps increase in LIBOR1 without any change in longer-term interest rates could reduce operating earnings by $3-5 million 1
Includes 1-month and 3-month LIBOR. See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 19

Uncertain capital rules and
regulatory environment Flattening yield curve expected to pressure investment spreads Corporate Benefit Funding Factors Driving Near-Term Outlook Strong pension risk transfer market Investment and retirement income solutions for defined contribution
market Opportunities Challenges


Slide 20

Corporate Benefit Funding Near-Term
Guidance on Certain Key Items Continue to be selective on pension risk transfers to meet risk and return targets General account liabilities expected to grow 0-2% annually Expect spread compression from favorable 2015 results Investment income
spread of 171 bps in LTM, with variable investment income contributing 37 bps Investment income spread expected to be within a range of 130-155 bps, with variable investment income contributing 20-35 bps


Slide 21

Retail Annuities Operating Earnings
Analysis ($ in millions) 4Q14 – 3Q15 Reported Operating Earnings $1,587 Reported notable items1,2:   Variable investment income, as compared to plan $2 Actuarial assumption review and other insurance adjustments $38 Tax adjustments ($14)
Other noteworthy items2: Initial market impact3 ($35) Baseline Operating Earnings $1,578 1 Cumulative impact, as reported in 3Q15 quarterly financial supplement. 2 Reported notable and other noteworthy items represent a positive (negative) impact to
baseline operating earnings. 3 To the extent market returns differ from MetLife’s long-term expectations, reserves (including SOP 03-1 reserves) and deferred acquisition cost balances are trued-up in the quarter to reflect the variance. See
Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 22

Retail Annuities Key Sensitivities
~65% of the separate account (SA) assets are in equities Operating earnings sensitivity to SA returns: 10 bps change in the investment income spread translates to operating earnings of approximately $25 million annually SA Return Initial Market
Impact1 Ongoing Market Impact2 +10% +$55 million +$100 million (10%) ($65 million) ($100 million) 1 Quarter in which market impact occurs. 2 Annually. See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 23

Department of Labor fiduciary
proposal Investment spread compression Continued negative variable annuity fund flows Retail Annuities Factors Driving Near-Term Outlook Variable annuity and Shield product sales growth Continued product expansion with improved risk adjusted returns
Upside from rising interest rates and modest equity market appreciation Opportunities Challenges See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 24

Retail Annuities Near-Term Guidance
on Certain Key Items Expect annuity sales to increase approximately 20% in 2016, continue to increase through 2018 Expect net flows to improve, but still negative Total annuity spread of 233 bps1 in LTM; expect 205-225 bps in 2016 and 190-210 bps in
2017-2018 Changes to expense allocations and interest on capital expected to increase 2016 operating earnings by approximately $40 million 1 Includes variable investment income. Represents the general account spread for deferred and payout
annuities. See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 25

Retail Life & Other Operating
Earnings Analysis ($ in millions) 4Q14 – 3Q15 Reported Operating Earnings $997 Reported notable items1:   Variable investment income, as compared to plan $4 Catastrophe experience and prior year development, net ($14) Actuarial assumption
review and other insurance adjustments $78 Tax adjustments $1 Baseline Operating Earnings $1,066 1 Cumulative impact, as reported in 3Q15 quarterly financial supplement. Reported notable items represent a positive (negative) impact to baseline
operating earnings. See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 26

Retail Life & Other Key
Sensitivities 1 Includes catastrophes. See Appendix for non-GAAP financial information, definitions and/or reconciliations. 1% change in interest adjusted benefit ratio translates to approximately $35 million of operating earnings 1% change in the
P&C combined ratio1 translates to approximately $12 million of operating earnings


Slide 27

New York limitations on closed block
dividends Investment spread compression Operating PFO growth relatively flat Retail Life & Other Factors Driving Near-Term Outlook Expanded product set expected to drive above market sales growth Changes in portfolio mix continue to drive
improved risk / return metrics Opportunities Challenges See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 28

Retail Life & Other Near-Term
Guidance on Certain Key Items Interest adjusted benefit ratio of 55.9% in LTM; expected to return to 51-56% range P&C combined ratio of 91.5%1 in LTM; expected to return to 93-97% range Variable & universal life spread of 194 bps2 in LTM;
expect 150-170 bps in 2016, 120-140 bps in 2017 and 110-130 bps in 2018 1 Includes catastrophes. 2 Includes variable investment income.


Slide 29

Retail Life & Other Near-Term
Guidance on Certain Key Items (Continued) Closed block operating earnings expected to decline by approximately $30 million in 2016 Current plan is to include U.S. Direct in Retail Life & Other in 2016; expected operating loss of approximately
$25 million Changes to expense allocations and interest on capital expected to decrease 2016 operating earnings by approximately $30 million See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 30

OUTLOOK CALL 2 0 1 5 December 11,
2015 Oscar Schmidt Executive Vice President Latin America


Slide 31

Latin America Overview Largest life
insurance company in Latin America1 Present in seven countries covering approximately 80% of Latin America GDP2 Business consistently delivers high growth, operating ROEs3 and cash flows Strong track record of double-digit growth 1 Based on gross
written premiums. Source: AXCO Global Statistics (2014). 2 Source: IMF website. 3 Excluding accumulated other comprehensive income (“AOCI”), other than foreign currency translation adjustments (“FCTA”). See Appendix for
non-GAAP financial information, definitions and/or reconciliations.


Slide 32

Latin America Operating Earnings
Analysis 1 Cumulative impact, as reported in 3Q15 quarterly financial supplement. 2 Reported notable and other noteworthy items represent a positive (negative) impact to baseline operating earnings. 3 The ProVida encaje is capital required by
Superintendencia de Pensiones. The encaje is invested the same as the total pension fund, and the income is included in operating earnings. See Appendix for non-GAAP financial information, definitions and/or reconciliations. ($ in millions) 4Q14
– 3Q15 Reported Operating Earnings $575 Reported notable items1,2:   Variable investment income, as compared to plan   $2 Catastrophe experience and prior year development, net $1 Tax adjustments ($73) Other noteworthy items2:
ProVida encaje3 earnings, as compared to plan $8 U.S. Direct business $65 Other tax items ($17) Baseline Operating Earnings $561


Slide 33

Latin America Key Sensitivities 1%
change in Mexican peso to U.S. dollar exchange rate translates to approximately $4 million of operating earnings 1% change in Chilean peso to U.S. dollar exchange rate translates to approximately $3 million of operating earnings 1% change in the
annual return on the ProVida encaje translates to approximately $3 million of operating earnings See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 34

Regional economic growth Currency
weakness Regulatory uncertainty across the region Latin America Factors Driving Near-Term Outlook Growth in worksite marketing Growth in ProVida Growth in employee benefits, agency and direct marketing Opportunities Challenges


Slide 35

Latin America Near-Term Guidance on
Certain Key Items Mexico and Chile expected to remain at 85-90% of Latin America operating earnings Expect high single-digit annual growth in operating PFOs and operating earnings on a constant currency basis Macro challenges impacting growth by
approximately two percentage points See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 36

Latin America Near-Term Guidance on
Certain Key Items (Continued) Baseline operating earnings at current exchange rates would be approximately 10% lower Changes to expense allocations and interest on capital expected to increase 2016 operating earnings by approximately $25 million See
Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 37

Christopher Townsend President Asia
OUTLOOK CALL 2 0 1 5 December 11, 2015


Slide 38

Asia Overview Asia continues to
offer attractive opportunities Diversified across geographies, currencies, products and channels Building differentiated capabilities Clear, consistent strategy to maximize value and earnings


Slide 39

Asia Operating Earnings Analysis ($
in millions) 4Q14 – 3Q15 Reported Operating Earnings $1,430 Reported notable items1,2:   Variable investment income, as compared to plan $10 Actuarial assumption review and other insurance adjustments ($32) Tax adjustments ($61) Other
noteworthy items2: Investment income from loan recovery ($21) Other tax adjustments ($33) Baseline Operating Earnings $1,293 1 Cumulative impact, as reported in 3Q15 quarterly financial supplement. 2 Reported notable and other noteworthy items
represent a positive (negative) impact to baseline operating earnings. See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 40

Asia Operating Earnings Breakdown
2015 Estimate 2018 Projection Japan 85-90% 75-80% Japanese yen 40-50% U.S. dollar 35-45% Australian dollar 10-15% Korea 10-15% 10-15% Rest of Asia* <5% 10-15% *Emerging markets expected to be approximately 3% in 2015 and 5-10% in 2018. See
Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 41

Asia Key Sensitivities Change Annual
Impact on Operating Earnings ($ in millions) Solvency Margin Ratio (%)1 Foreign exchange rate to U.S. dollar: Japanese yen – unhedged basis +/- 1 $3-$42  Australian dollar +/- 0.01 $1-$2 Korean won +/- 10 $1-$2 Parallel shift in yield
curve: U.S. +/- 10 bps $3-$4 5%-10% Japan +/- 10 bps $2-$4 5%-10% Korea +/- 10 bps $1-$2 2%-5% 1 Japan solvency margin ratio (SMR) sensitivity includes impact from U.S. and Japan yields. Korea SMR sensitivity includes impact from Korea yields. 2 We
have hedged approximately 100% of our expected pre-tax yen-based earnings at 108 in 2016, 100% at 122 in 2017 and 45% at 125 in 2018. Once the options are in the money, each additional yen above that level is expected to have an annual impact on
operating earnings of approximately $2-3 million in 2016 and 2017, and $1 million in 2018. See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 42

Strengthening of U.S. dollar
Regulatory changes Low interest rate environment Asia Factors Driving Near-Term Outlook Margin expansion Product and distribution Capital Continued operational efficiency Invest in differentiation New markets and products Opportunities Challenges


Slide 43

Asia Near-Term Guidance on Certain
Key Items Proportion of protection sales expected to grow from 47% of total Asia sales in 2015 to 50-55% by 2018 Expect mid-single digit operating PFO growth on a constant currency basis, with focus on driving value and cash Expect high single-digit
operating earnings growth on a constant currency basis, with slower growth in 2016 See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 44

Asia Near-Term Guidance on Certain
Key Items (Continued) Expect currency exchange rates to have negative impact on 2016 operating earnings of $45 million Changes to expense allocations and interest on capital expected to decrease 2016 operating earnings by approximately $30 million
Japan dividends on track to be 50% of operating earnings See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 45

Michel Khalaf President Europe,
Middle East and Africa OUTLOOK CALL 2 0 1 5 December 11, 2015


Slide 46

EMEA Overview Leading position in
several markets in the Middle East and Central & Eastern Europe Emerging markets expected to comprise over 70% of EMEA operating earnings over the near term Diversified across geography, product and channel Operational efficiencies from legal
entity restructuring in anticipation of Solvency II See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 47

EMEA Operating Earnings Analysis ($
in millions) 4Q14 – 3Q15 Reported Operating Earnings $250 Reported notable items1: Actuarial assumption review and other insurance adjustments ($6) Tax adjustments ($14) Baseline Operating Earnings $230 1 Cumulative impact, as reported in 3Q15
quarterly financial supplement. Reported notable items represent a positive (negative) impact to baseline operating earnings. See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 48

See Appendix for non-GAAP financial
information, definitions and/or reconciliations. EMEA Key Sensitivities Largest operations in the Gulf, UK and Poland account for approximately 40% of EMEA’s operating earnings UK expected to be a key contributor, with growth coming from
wealth management and employee benefits Operating earnings currency exposure, approximately: 45% Euro 20% Polish Zloty 20% GBP 10% Turkish Lira


Slide 49

Strengthening of U.S. dollar
Regulatory changes Political and economic headwinds EMEA Factors Driving Near-Term Outlook Drive operational efficiencies Capital diversification and cash generation Build the MetLife brand in key markets Opportunities Challenges


Slide 50

EMEA Near-Term Guidance on Certain
Key Items Expect sales growth rate in high single digits, moving to low to mid-teens Expect operating PFOs to be relatively flat in 2016, low single-digit growth on a constant currency basis Expect high single-digit growth in operating PFOs in
2017-2018 Operating earnings growth expected to be high-teens on a constant currency basis Expect currency exchange rates to have negative impact on 2016 operating earnings of $10-15 million See Appendix for non-GAAP financial information,
definitions and/or reconciliations.


Slide 51

John C.R. Hele Chief Financial
Officer OUTLOOK CALL 2 0 1 5 December 11, 2015


Slide 52

Financial Update Outlook for
variable investment income Impact of interest rates Outlook for Corporate & Other and tax rate


Slide 53

Outlook for Variable Investment
Income Weaker than expected for 4Q15; anticipate variable investment income for 2015 to be below low end of $1.3-$1.7 billion1 range Variable investment income for 2016 expected to be within range of $1.2-$1.5 billion1 ¹ Pre-tax.


Slide 54

Manageable Balance Sheet Impact from
Low Rates Balance sheet impact if 10-year Treasury at 2% forever Statutory reserve increase of less than $1 billion GAAP charge with present value of less than $3 billion after tax Modest potential charges relative to earnings power LTM statutory
operating gain of $3.7 billion LTM operating earnings of $5.7 billion See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 55

Meaningful Low Rate Protection for
Operating Earnings Pre-Tax Derivative Income1 (+/- 100 bps Sensitivity) Approximately $200 billion notional2 to hedge against adverse economic factors $0.7-$1.0 billion of annual pre-tax derivative income for 2016-2018 based on Flat rate scenario
Protection extending beyond 2030 Highlights Total Derivatives2 ¹ The baseline scenario (“Flat”) assumes a yield curve that includes a 3-month LIBOR rate of 0.23% and a 10-year U.S. Treasury rate of 2.0%. The two alternate scenarios
(-/+ 100 bps) assume an immediate, parallel shift in the baseline curve. ² MetLife investment portfolio (excluding variable annuity hedging program) as of September 30, 2015. See Appendix for non-GAAP financial information, definitions and/or
reconciliations.


Slide 56

Interest Rates: Stress Scenario vs.
Plan 1 Rates based on external consensus for next six quarters and internal forecast thereafter. 12/31/2015 12/31/2016 12/31/2017 12/31/2018 Stress Plan Stress Plan Stress Plan Stress Plan 3-Month LIBOR1 0.23% 0.42% 0.23% 1.41% 0.23% 1.99% 0.23%
2.45% 10-Year Treasury1 2.00% 2.33% 2.00% 2.98% 2.00% 3.24% 2.00% 3.45% Slope of Yield Curve 1.77% 1.91% 1.77% 1.57% 1.77% 1.25% 1.77% 1.00%


Slide 57

Manageable Earnings Impact from Low
Rates Operating earnings impact from interest rate stress scenario Approximately $10 million reduction versus plan for 2016 Approximately $150 million reduction versus plan for 2017 Approximately $285 million reduction versus plan for 2018 10 bps
increase in LIBOR1 without any change in longer-term interest rates reduces operating earnings by approximately $10-$12 million Negative impact on derivative income, primarily receiver swaps Negative impact on securities lending due to cost of funds
1 Includes 1-month and 3-month LIBOR. See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 58

Guidance on Corporate & Other
and Tax Rate Expect Corporate & Other operating loss of $500-$700 million in 2016 Changes to expense allocations and interest on capital expected to reduce 2016 operating loss by approximately $20 million Lower expenses and taxes expected to
drive improvement in Corporate & Other in 2016 vs. 2015 Effective tax rate expected to be 25.1% in 2016 See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 59

Steven A. Kandarian Chairman,
President & Chief Executive Officer OUTLOOK CALL 2 0 1 5 December 11, 2015


Slide 60

Key Takeaways Challenging macro
environment for operating earnings and operating ROE1, but focused on levers to drive improved results Producing more cash; upwardly revised free cash flow-to-operating earnings target of 55-65% Distributing more cash; barring adverse capital rules
or attractive M&A, expect total payout to shareholders will be consistent with free cash flow, subject to Board approval 1 Excluding AOCI, other than FCTA. See Appendix for non-GAAP financial information, definitions and/or reconciliations.


Slide 61


Slide 62

Appendix OUTLOOK CALL 2 0 1 5
December 11, 2015


Slide 63

Safe Harbor Statement 63 This
presentation may contain or incorporate by reference information that includes or is based upon forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements give expectations or
forecasts of future events. These statements can be identified by the fact that they do not relate strictly to historical or current facts. They use words such as “anticipate,” “estimate,” “expect,”
“project,” “intend,” “plan,” “believe” and other words and terms of similar meaning, or are tied to future periods, in connection with a discussion of future operating or financial performance. In
particular, these include statements relating to future actions, prospective services or products, future performance or results of current and anticipated services or products, sales efforts, expenses, the outcome of contingencies such as legal
proceedings, trends in operations and financial results. Any or all forward-looking statements may turn out to be wrong. They can be affected by inaccurate assumptions or by known or unknown risks and uncertainties. Many such factors will be
important in determining the actual future results of MetLife, Inc., its subsidiaries and affiliates. These statements are based on current expectations and the current economic environment. They involve a number of risks and uncertainties that are
difficult to predict. These statements are not guarantees of future performance. Actual results could differ materially from those expressed or implied in the forward-looking statements. Risks, uncertainties, and other factors that might cause such
differences include the risks, uncertainties and other factors identified in MetLife, Inc.’s filings with the U.S. Securities and Exchange Commission (the “SEC”). These factors include: (1) difficult conditions in the global
capital markets; (2) increased volatility and disruption of the capital and credit markets, which may affect our ability to meet liquidity needs and access capital, including through our credit facilities, generate fee income and market-related
revenue and finance statutory reserve requirements and may require us to pledge collateral or make payments related to declines in value of specified assets, including assets supporting risks ceded to certain of our captive reinsurers or hedging
arrangements associated with those risks; (3) exposure to financial and capital market risks, including as a result of the disruption in Europe and possible withdrawal of one or more countries from the Euro zone; (4) impact of comprehensive
financial services regulation reform on us, as a non-bank systemically important financial institution, or otherwise; (5) numerous rulemaking initiatives required or permitted by the Dodd-Frank Wall Street Reform and Consumer Protection Act which
may impact how we conduct our business, including those compelling the liquidation of certain financial institutions; (6) regulatory, legislative or tax changes relating to our insurance, international, or other operations that may affect the cost
of, or demand for, our products or services, or increase the cost or administrative burdens of providing benefits to employees; (7) adverse results or other consequences from litigation, arbitration or regulatory investigations; (8) potential
liquidity and other risks resulting from our participation in a securities lending program and other transactions; (9) investment losses and defaults, and changes to investment valuations; (10) changes in assumptions related to investment
valuations, deferred policy acquisition costs, deferred sales inducements, value of business acquired or goodwill; (11) impairments of goodwill and realized losses or market value impairments to illiquid assets; (12) defaults on our mortgage loans;
(13) the defaults or deteriorating credit of other financial institutions that could adversely affect us; (14) economic, political, legal, currency and other risks relating to our international operations, including with respect to fluctuations of
exchange rates; (15) downgrades in our claims paying ability, financial strength or credit ratings; (16) a deterioration in the experience of the “closed block” established in connection with the reorganization of Metropolitan Life
Insurance Company; (17) availability and effectiveness of reinsurance or indemnification arrangements, as well as any default or failure of counterparties to perform; (18) differences between actual claims experience and underwriting and
reserving


Slide 64

Safe Harbor Statement (Continued) 64
assumptions; (19) ineffectiveness of risk management policies and procedures; (20) catastrophe losses; (21) increasing cost and limited market capacity for statutory life insurance reserve financings; (22) heightened competition, including with
respect to pricing, entry of new competitors, consolidation of distributors, the development of new products by new and existing competitors, and for personnel; (23) exposure to losses related to variable annuity guarantee benefits, including from
significant and sustained downturns or extreme volatility in equity markets, reduced interest rates, unanticipated policyholder behavior, mortality or longevity, and the adjustment for nonperformance risk; (24) our ability to address difficulties,
unforeseen liabilities, asset impairments, or rating agency actions arising from business acquisitions and integrating and managing the growth of such acquired businesses, or arising from dispositions of businesses or legal entity reorganizations;
(25) regulatory and other restrictions affecting MetLife, Inc.’s ability to pay dividends and repurchase common stock; (26) MetLife, Inc.’s primary reliance, as a holding company, on dividends from its subsidiaries to meet debt payment
obligations and the applicable regulatory restrictions on the ability of the subsidiaries to pay such dividends; (27) the possibility that MetLife, Inc.’s Board of Directors may influence the outcome of stockholder votes through the voting
provisions of the MetLife Policyholder Trust; (28) changes in accounting standards, practices and/or policies; (29) increased expenses relating to pension and postretirement benefit plans, as well as health care and other employee benefits; (30)
inability to protect our intellectual property rights or claims of infringement of the intellectual property rights of others; (31) inability to attract and retain sales representatives; (32) provisions of laws and our incorporation documents may
delay, deter or prevent takeovers and corporate combinations involving MetLife; (33) the effects of business disruption or economic contraction due to disasters such as terrorist attacks, cyberattacks, other hostilities, or natural catastrophes,
including any related impact on the value of our investment portfolio, our disaster recovery systems, cyber- or other information security systems and management continuity planning; (34) the effectiveness of our programs and practices in avoiding
giving our associates incentives to take excessive risks; and (35) other risks and uncertainties described from time to time in MetLife, Inc.’s filings with the SEC. MetLife, Inc. does not undertake any obligation to publicly correct or update
any forward-looking statement if MetLife, Inc. later becomes aware that such statement is not likely to be achieved. Please consult any further disclosures MetLife, Inc. makes on related subjects in reports to the SEC.


Slide 65

Explanatory Note on Non-GAAP
Financial Information Any references in this presentation (except in this Explanatory Note on Non-GAAP Financial Information slide and this Appendix) to net income (loss), net income (loss) per share, operating earnings, operating earnings per
share, book value per share, book value per share, excluding accumulated other comprehensive income (loss) (“AOCI”), other than foreign currency translation adjustments (“FCTA”), book value per share-tangible common
stockholders’ equity, premiums, fees and other revenues, operating return on equity, excluding AOCI, other than FCTA, and tangible operating return on equity should be read as net income (loss) available to MetLife, Inc.’s common shareholders,
net income (loss) available to MetLife, Inc.’s common shareholders per diluted common share, operating earnings available to common shareholders, operating earnings available to common shareholders per diluted common share, book value per common
share, book value per common share, excluding AOCI, other than FCTA, book value per common share-tangible common stockholders’ equity, premiums, fees and other revenues (operating), operating return on MetLife, Inc.’s common
stockholders’ equity, excluding AOCI, other than FCTA, and operating return on MetLife, Inc.’s tangible common stockholders’ equity, respectively. Operating earnings is the measure of segment profit or loss that MetLife uses to
evaluate segment performance and allocate resources. Consistent with accounting principles generally accepted in the United States of America (“GAAP”) accounting guidance for segment reporting, operating earnings is MetLife’s measure of segment
performance. Operating earnings is also a measure by which MetLife senior management’s and many other employees’ performance is evaluated for the purposes of determining their compensation under applicable compensation plans. Operating earnings is
defined as operating revenues less operating expenses, both net of income tax. Operating earnings available to common shareholders is defined as operating earnings less preferred stock dividends. Operating revenues and operating expenses exclude
results of discontinued operations and other businesses that have been or will be sold or exited by MetLife and are referred to as divested businesses. Operating revenues also excludes net investment gains (losses) (“NIGL”) and net
derivative gains (losses) (“NDGL”). Operating expenses also excludes goodwill impairments. The following additional adjustments are made to GAAP revenues, in the line items indicated, in calculating operating revenues: Universal life and
investment-type product policy fees excludes the amortization of unearned revenue related to NIGL and NDGL and certain variable annuity guaranteed minimum income benefits (“GMIB”) fees (“GMIB Fees”); Net investment income: (i) includes amounts for
scheduled periodic settlement payments and amortization of premium on derivatives that are hedges of investments or that are used to replicate certain investments but do not qualify for hedge accounting treatment, (ii) includes income from
discontinued real estate operations, (iii) excludes post-tax operating earnings adjustments relating to insurance joint ventures accounted for under the equity method, (iv) excludes certain amounts related to contractholder-directed unit-linked
investments, and (v) excludes certain amounts related to securitization entities that are variable interest entities (“VIEs”) consolidated under GAAP; and Other revenues are adjusted for settlements of foreign currency earnings hedges. 65


Slide 66

Explanatory Note on Non-GAAP
Financial Information (Continued) The following additional adjustments are made to GAAP expenses, in the line items indicated, in calculating operating expenses: Policyholder benefits and claims and policyholder dividends excludes: (i) changes in
the policyholder dividend obligation related to NIGL and NDGL, (ii) inflation-indexed benefit adjustments associated with contracts backed by inflation-indexed investments and amounts associated with periodic crediting rate adjustments based on the
total return of a contractually referenced pool of assets and other pass through adjustments, (iii) benefits and hedging costs related to GMIBs (“GMIB Costs”), and (iv) market value adjustments associated with surrenders or terminations of contracts
(“Market Value Adjustments”); Interest credited to policyholder account balances includes adjustments for scheduled periodic settlement payments and amortization of premium on derivatives that are hedges of policyholder account balances but do not
qualify for hedge accounting treatment and excludes amounts related to net investment income earned on contractholder-directed unit-linked investments; Amortization of deferred policy acquisition costs (“DAC”) and value of business
acquired (“VOBA”) excludes amounts related to: (i) NIGL and NDGL, (ii) GMIB Fees and GMIB Costs, and (iii) Market Value Adjustments; Amortization of negative VOBA excludes amounts related to Market Value Adjustments; Interest expense on debt
excludes certain amounts related to securitization entities that are VIEs consolidated under GAAP; and Other expenses excludes costs related to: (i) noncontrolling interests, (ii) implementation of new insurance regulatory requirements, and (iii)
acquisition and integration costs. Operating earnings also excludes the recognition of certain contingent assets and liabilities that could not be recognized at acquisition or adjusted for during the measurement period under GAAP business
combination accounting guidance. In addition to the tax impact of the adjustments mentioned above, provision for income tax (expense) benefit also includes the impact related to the timing of certain tax credits, as well as certain tax reforms.
MetLife, Inc.’s tangible common stockholders’ equity is defined as MetLife, Inc.’s common stockholders’ equity, excluding the net unrealized investment gains (losses) and defined benefit plans adjustment components of AOCI
and is also reduced by the impact of goodwill, value of distribution agreements (“VODA”) and value of customer relationships acquired (“VOCRA”), all net of income tax. MetLife, Inc.’s common stockholders’ equity,
excluding AOCI, other than FCTA, is defined as MetLife, Inc.’s common stockholders’ equity, excluding the net unrealized investment gains (losses) and defined benefit plans adjustment components of AOCI, net of income tax. MetLife
believes the presentation of operating earnings and operating earnings available to common shareholders as MetLife measures it for management purposes enhances the understanding of the company’s performance by highlighting the results of operations
and the underlying profitability drivers of the business. Operating revenues, operating expenses, operating earnings, operating earnings available to common shareholders, operating earnings available to common shareholders per diluted common share,
investment portfolio gains (losses) and 66


Slide 67

Explanatory Note on Non-GAAP
Financial Information (Continued) derivative gains (losses) should not be viewed as substitutes for the following financial measures calculated in accordance with GAAP: GAAP revenues, GAAP expenses, income (loss) from continuing operations, net of
income tax, net income (loss) available to MetLife, Inc.’s common shareholders, net income (loss) available to MetLife, Inc.’s common shareholders per diluted common share, net investment gains (losses) and net derivative gains (losses),
respectively. MetLife, Inc.’s tangible common stockholders’ equity and MetLife, Inc.’s common stockholders’ equity, excluding AOCI, other than FCTA, should not be viewed as substitutes for total MetLife, Inc.’s
stockholders’ equity calculated in accordance with GAAP. MetLife also refers to baseline operating earnings in this presentation. Baseline operating earnings is operating earnings, adjusted to reflect the cumulative impact of notable items as
reported in the Third Quarter 2015 Financial Supplement, as well as other noteworthy items, if applicable. MetLife believes that the presentation of baseline operating earnings enhances the understanding of its performance by providing an estimate
of the operating earnings that should be considered as the starting point for growth. MetLife uses a measure of free cash flow to facilitate an understanding of its ability to generate cash for reinvestment into its businesses or use in
discretionary capital actions. MetLife defines free cash flow as the sum of cash available at MetLife’s holding companies from dividends from operating subsidiaries, expenses and other net flows of the holding companies, and net contributions
from debt to be at or below target level ratios. This measure of free cash flow is prior to discretionary capital deployment, including common stock dividends and repurchases, debt reduction and mergers and acquisitions. Free cash flow should not be
viewed as a substitute for net cash provided by (used in) operating activities calculated in accordance with GAAP. The free cash flow ratio is typically expressed as a percentage of annual operating earnings available to common shareholders.
Operating return on MetLife, Inc.’s tangible common stockholders’ equity is defined as operating earnings available to common shareholders, excluding amortization of VODA and VOCRA, net of income tax, divided by MetLife, Inc.’s average tangible
common stockholders’ equity. Operating return on MetLife, Inc.’s common stockholders’ equity, excluding AOCI other than FCTA is defined as operating earnings available to common shareholders divided by MetLife, Inc.’s average common stockholders’
equity, excluding AOCI other than FCTA. Operating return on MetLife, Inc.’s common stockholders’ equity is defined as operating earnings available to common shareholders divided by MetLife, Inc.’s average common stockholders’ equity. Return on
MetLife, Inc.’s tangible common stockholders’ equity is defined as net income (loss) available to MetLife, Inc.’s common shareholders, excluding goodwill impairment and amortization of VODA and VOCRA, net of income tax, divided by
MetLife, Inc.’s average tangible common stockholders’ equity. 67


Slide 68

Explanatory Note on Non-GAAP
Financial Information (Continued) Return on MetLife, Inc.’s common stockholders’ equity, excluding AOCI other than FCTA is defined as net income (loss) available to MetLife, Inc.’s common shareholders divided by MetLife, Inc.’s average common
stockholders’ equity, excluding AOCI other than FCTA. Return on MetLife, Inc.’s common stockholders’ equity is defined as net income (loss) available to MetLife, Inc.’s common shareholders divided by MetLife, Inc.’s average
common stockholders’ equity. Allocated equity is defined as the portion of MetLife, Inc.’s common stockholders’ equity that management allocates to each of its segments and sub-segments based on local capital requirements and
economic capital. Economic capital is an internally developed risk capital model, the purpose of which is to measure the risk in the business and to provide a basis upon which capital is deployed. MetLife management periodically reviews this model
to ensure that it remains consistent with emerging industry practice standards and the local capital requirements; allocated equity may be adjusted if warranted by such review. Allocated equity excludes the impact of AOCI, other than FCTA. Operating
return on allocated equity is defined as operating earnings available to common shareholders divided by allocated equity. Operating return on allocated tangible equity is defined as operating earnings available to common shareholders, excluding
amortization of VODA and VOCRA, net of income tax, divided by allocated tangible equity. Return on allocated equity is defined as net income (loss) available to MetLife, Inc.’s common shareholders divided by allocated equity. Return on
allocated tangible equity is defined as net income (loss) available to MetLife, Inc.’s common shareholders, excluding amortization of VODA and VOCRA, net of income tax, divided by allocated tangible equity. Operating expense ratio is
calculated by dividing operating expenses (other expenses net of capitalization of DAC) by operating premiums, fees and other revenues. For the historical periods presented, reconciliations of non-GAAP measures used in this presentation to the most
directly comparable GAAP measures may be included in this Appendix to the presentation materials and/or are on the Investor Relations portion of MetLife’s Internet website. Additional information about MetLife’s historical results is
also available on its Internet website in its Quarterly Financial Supplements for the corresponding periods. The non-GAAP measures used in this presentation should not be viewed as substitutes for the most directly comparable GAAP measures. In this
presentation, MetLife may refer to sales activity for various products. These sales statistics do not correspond to revenues under GAAP, but are used as relevant measures of business activity. All comparisons on a constant currency basis reflect the
impact of changes in foreign currency exchange rates and are calculated using the average foreign currency exchange rates for the current period and are applied to each of the comparable periods. 68


Slide 69

Explanatory Note on Non-GAAP
Financial Information (Continued) In this presentation, MetLife may provide forward-looking guidance on its future earnings, premiums, fees and other revenues, earnings per diluted common share, book value per common share, return on common equity
and free cash flow (as a percentage of annual operating earnings) on an operating or non-GAAP basis. A reconciliation of the non-GAAP measures to the most directly comparable GAAP measures is not accessible on a forward-looking basis because MetLife
believes it is not possible to provide other than a range of net investment gains and losses and net derivative gains and losses, which can fluctuate significantly within or outside the range and from period to period and may have a significant
impact on GAAP net income. In addition, MetLife may provide estimated historical operating results for business that is not within a single reportable segment or Corporate & Other in this presentation. A reconciliation of non-GAAP measures to
the most directly comparable GAAP measures is not accessible for such results, as MetLife calculates GAAP results only for its reportable segments and Corporate & Other. 69


Slide 70

Definitions


Slide 71

Definitions – Sales Retail: Life
Sales: Statistical sales information for life insurance is calculated by MetLife using the LIMRA definition of sales for core direct sales, excluding company sponsored internal exchanges, corporate-owned life insurance, bank-owned life insurance,
and private placement variable universal life insurance. Annuity Sales: Individual annuities sales consists of statutory premiums direct and assumed, excluding company sponsored internal exchanges. GVWB: Sales of life and non-medical health products
include 100% of annualized full year premiums and fees from recurring-premium policy. Sales for property & casualty are based on first year direct written premium net of cancellation and endorsement activity.  CBF: Pension Risk Transfer
Sales: Pension risk transfer sales consist of statutory single-premiums received as payment to assume certain benefit liabilities of a U.S. pension plan. This is consistent with the LIMRA definition of sales for single-premium buy-outs. Direct:
Consumer Direct Individual Life Sales: Statistical sales information for life insurance is calculated by using the LIMRA definition of sales for core direct sales, excluding company sponsored internal exchanges. Sponsored Direct Group Product Sales:
100% of annualized first year premiums and fees from recurring-premium policy sales of all products (mainly from risk and protection products such as individual life, accident & health and group). Sales for property & casualty are based on
first year direct written premium net of cancellation and endorsement activity.  Latin America, Asia and EMEA: 10% of single-premium deposits (mainly from retirement products such as variable annuity, fixed annuity and pensions) and 20% of
single-premium deposits from credit insurance. 100% of annualized first year premiums and fees from recurring-premium policy sales of all products (mainly from risk and protection products such as individual life, accident & health and group).
71


Slide 72

Reconciliations


Slide 73

Reconciliation of Operating Earnings
Available to Common Shareholders to Net Income (Loss) Available to MetLife, Inc.’s Common Shareholders – Total Company 73


Slide 74

Reconciliation of Operating Earnings
Available to Common Shareholders to Net Income (Loss) Available to MetLife, Inc.’s Common Shareholders 74


Slide 75

Reconciliation of Net Cash Provided
by Operating Activities to Free Cash Flow 75


Slide 76

 

Kroger Co. [ $KR ] Anne Gates Elected to Kroger Board of Directors

 

 

Kroger Announces Anne Gates Elected
to Kroger Board of Directors

 

CINCINNATI — December 10, 2015 — The Kroger Co. (NYSE: KR) today announced that Anne Gates has been elected to the Company’s Board of Directors.

 

Ms. Gates is president of MGA Entertainment, Inc., a privately-held developer, manufacturer and marketer of toy and entertainment products for children. Prior to her current role, she held roles of increasing responsibility with the Walt Disney Company from 1992 — 2012. Her roles included executive vice president, managing director, and chief financial officer for Disney Consumer Products and senior vice president of operations, planning and analysis. Prior to joining Disney, Ms. Gates worked for PepsiCo and Bear Stearns.

 

“We are delighted to welcome Anne to Kroger,” said Rodney McMullen, Kroger’s chairman and chief executive officer. “Anne’s broad expertise in consumer products and strategy will be a tremendous asset to Kroger’s Board and our shareholders.”

 

Ms. Gates is chairwoman of Big Sunday and a member of the Boards of Columbia University School of Engineering, Cadre and PBS SoCal (KOCE-TV Foundation). She received a master’s degree from Columbia University School of Engineering and a bachelor’s degree in mathematics from the University of California-Berkeley.

 

Ms. Gates is elected to serve until Kroger’s annual meeting of shareholders in June 2016. At that time, she will stand for election by the shareholders.

 

Kroger, one of the world’s largest retailers, employs more than 400,000 associates who serve customers in 2,620 supermarkets and multi-department stores in 34 states and the District of Columbia under two dozen local banner names including Kroger, City Market, Dillons, Food 4 Less, Fred Meyer, Fry’s, Harris Teeter, Jay C, King Soopers, QFC, Ralphs and Smith’s.  The company also operates 786 convenience stores, 326 fine jewelry stores, 1,360 supermarket fuel centers and 37 food processing plants in the U.S.  Recognized by Forbes as the most generous company in America, Kroger supports hunger relief, breast cancer awareness, the military and their families, and more than 30,000 schools and community organizations. Kroger contributes food and funds equal to 200 million meals a year through more than 100 Feeding America food bank partners. A leader in supplier diversity, Kroger is a proud member of the Billion Dollar Roundtable and the U.S. Hispanic Chamber’s Million Dollar Club.

 

—30—

 

Kroger Contacts: Media: Keith Dailey (513) 762-1304; Investors: Kate Ward (513) 762-4969

 


 

Navient [ $NAVI ] announces $700 million share repurchase authority

 

WILMINGTON, Del., Dec. 10, 2015 — Navient (Nasdaq: NAVI), the nation’s leading loan management, servicing and asset recovery company, announced today
that its Board of Directors approved an additional $700 million for its program to repurchase shares of the company’s outstanding common stock. The share repurchase authorization permits the company to repurchase shares from time to time
through a combination of open market repurchases, privately negotiated transactions, or accelerated share repurchase transactions. The program does not have an expiration date. The authority adds to the previously announced $1 billion authorization
announced by the company on Dec. 15, 2014.

* * *

About
Navient

As the nation’s leading loan management, servicing and asset recovery company, Navient (Nasdaq: NAVI) helps customers navigate the path to
financial success. Servicing more than $300 billion in student loans, the company supports the educational and economic achievements of more than 12 million Americans. A growing number of public and private sector clients rely on Navient for
proven solutions to meet their financial goals. Learn more at navient.com.

# # #

Contact:

Media: Patricia
Nash Christel, 302-283-4076, patricia.christel@navient.com

Investors: Joe Fisher, 302-283-4075, joe.fisher@navient.com

 

Priceline.com Inc [ $PCLN ] Putting more money into Ctrip..

 

 
 
Exhibit 99.1

 

The Priceline Group Announces Additional Investment in Ctrip
NORWALK, Conn. December 10, 2015 . . . The Priceline Group Inc. (NASDAQ: PCLN) today announced that it has agreed to invest an additional $500 million in Ctrip.com International, Ltd. (NASDAQ: CTRP) (“Ctrip”), China’s leading online travel company, through a convertible bond. 
Including the new bond, The Priceline Group has invested about $1.9 billion in Ctrip convertible bonds and American Depositary Shares since 2014.  Immediately following issuance of the new $500 million bond, assuming conversion of bonds held, The Priceline Group will own approximately 45.5 million American Depository Shares of Ctrip on a fully diluted basis.
The Priceline Group and Ctrip will continue their existing commercial partnership, whereby accommodations inventory is cross-promoted between the brands.
“Today’s announcement reflects our ongoing commitment to the partnership between Ctrip and The Priceline Group, which began in 2012,” said Darren Huston, CEO of Booking.com and President & CEO of The Priceline Group.  “The investment is an important part of our broader strategy to continue to grow our online travel business to, from and within China.”
 
About The Priceline Group
The Priceline Group (NASDAQ: PCLN) is the world leader in online travel and related services, provided to customers and partners in over 200 countries and territories through six primary brands – Booking.com, priceline.com, KAYAK, agoda.com, rentalcars.com, and OpenTable. The Priceline Group’s mission is to help people experience the world.  For more information, visit PricelineGroup.com.
###
 
For further information, please contact:
The Priceline Group:
For Press Information: Leslie Cafferty 203-299-8128 leslie.cafferty@pricelinegroup.com
For Investor Relations: Matthew Tynan 203-299-8487 matt.tynan@pricelinegroup.com
 
 
 
 
 

 

 

 

Adobe Systems Inc [ $ADBE ] Quarterly and Annual Earning.

 

 
SAN JOSE, Calif. – Dec. 10, 2015 Adobe (Nasdaq:ADBE) today reported financial results for its fourth quarter and fiscal year 2015 ended Nov. 27, 2015.
Fourth Quarter Financial Highlights
Adobe achieved record quarterly revenue of $1.31 billion, representing year-over-year growth of 22 percent.
Diluted earnings per share were $0.44 on a GAAP-basis, and $0.62 on a non-GAAP basis.
Digital Media Annualized Recurring Revenue (“ARR”) grew to $2.99 billion exiting the quarter, an increase of $350 million. Creative ARR grew to $2.60 billion, an increase of $310 million driven by enterprise adoption and the addition of 833 thousand net new individual and team Creative Cloud subscriptions.
Adobe Marketing Cloud achieved revenue of $352 million with strong bookings growth and a stronger-than-expected shift in customer adoption to SaaS-based solutions.
Year-over-year operating income grew 133 percent and net income grew 153 percent on a GAAP-basis; operating income grew 58 percent and net income grew 59 percent on a non-GAAP basis.
Cash flow from operations was $455 million, and deferred revenue grew to a record $1.49 billion.
The company repurchased approximately 1.4 million shares during the quarter, returning $122 million of cash to stockholders.
Fiscal Year 2015 Financial Highlights
Adobe achieved record revenue of $4.80 billion in fiscal year 2015, representing year-over-year growth of 16 percent.
The company reported annual GAAP diluted earnings per share of $1.24 and non-GAAP diluted earnings per share of $2.08.
Adobe grew Digital Media ARR by approximately $1.12 billion during the year and exited the year with $2.99 billion. Net new Creative Cloud individual and team subscriptions grew by more than 2.71 million during fiscal year 2015 to 6.17 million.
Adobe Marketing Cloud achieved a record $1.36 billion in annual revenue and its goal of approximately 30 percent annual bookings growth.
Adobe generated $1.47 billion in operating cash flow during the year.
The company repurchased 8.1 million shares during the year, returning approximately $627 million of cash to stockholders.
A reconciliation between GAAP and non-GAAP results is provided at the end of this press release and on Adobe’s website.

 


 

 

 
Executive Quotes
“Adobe is driving digital experiences that are fundamental to the transformation of every global brand, government and educational institution,” said Shantanu Narayen, president and chief executive officer, Adobe. “Our record revenue and strong momentum are a reflection of our industry-leading content and data solutions in Digital Media and Digital Marketing.”
“Strong growth across key financial metrics reflect the amazing performance we’ve achieved in fiscal 2015,” said Mark Garrett, executive vice president and chief financial officer, Adobe. “Our long-term financial targets, including a 20% revenue CAGR through fiscal 2018, show that the benefits of our move to the cloud are just beginning.”
Adobe to Webcast Earnings Conference Call
Adobe will webcast its fourth quarter and fiscal year 2015 earnings conference call today at 2:00 p.m. Pacific Time from its investor relations website: www.adobe.com/ADBE. Earnings documents, including Adobe management’s prepared conference call remarks with slides, financial targets and an investor datasheet are posted to Adobe’s investor relations website in advance of the conference call for reference. A reconciliation between GAAP and non-GAAP earnings results and financial targets is also provided on the website.
Forward-Looking Statements Disclosure
This press release contains forward-looking statements, including those related to business momentum, product adoption and innovation, revenue, annualized recurring revenue, bookings, earnings per share and operating cash flow, all of which involve risks and uncertainties that could cause actual results to differ materially. Factors that might cause or contribute to such differences include, but are not limited to: failure to develop, market and distribute products and services that meet customer requirements, introduction of new products and business models by competitors, failure to successfully manage transitions to new business models and markets, fluctuations in subscription renewal rates, risks associated with cyber-attacks and information security, potential interruptions or delays in hosted services provided by us or third parties, uncertainty in economic conditions and the financial markets, and failure to realize the anticipated benefits of past or future acquisitions. For a discussion of these and other risks and uncertainties, please refer to Adobe’s Annual Report on Form 10-K for our fiscal year 2014 ended Nov. 28, 2014, and Adobe’s Quarterly Reports on Form 10-Q issued in fiscal year 2015.
The financial information set forth in this press release reflects estimates based on information available at this time. These amounts could differ from actual reported amounts stated in Adobe’s Annual Report on Form 10-K for our year ended Nov. 27, 2015, which Adobe expects to file in Jan. 2016.
Adobe assumes no obligation to, and does not currently intend to, update these forward-looking statements.
About Adobe Systems Incorporated
Adobe is changing the world through digital experiences. For more information, visit www.adobe.com.
###
© 2015 Adobe Systems Incorporated. All rights reserved. Adobe, the Adobe logo and Creative Cloud are either registered trademarks or trademarks of Adobe Systems Incorporated in the United States and/or other countries. All other trademarks are the property of their respective owners.
 
 
 
 
 
 
 

 

2

 

 

Condensed Consolidated Statements of Income
(In thousands, except per share data; unaudited)
 
Three Months Ended
 
Year Ended
 
November 27,
2015
 
November 28,
2014
 
November 27,
2015
 
November 28,
2014
Revenue:
 
 
 
 
 
 
 
Subscription
$
907,434
 
 
$
628,954
 
 
$
3,223,904
 
 
$
2,076,584
 
Product
284,496
 
 
327,951
 
 
1,125,146
 
 
1,627,803
 
Services and support
114,474
 
 
116,423
 
 
446,461
 
 
442,678
 
Total revenue
1,306,404
 
 
1,073,328
 
 
4,795,511
 
 
4,147,065
 
 
 
 
 
 
 
 
 
Cost of revenue:
 
 
 
 
 
 
 
Subscription
106,368
 
 
87,883
 
 
409,194
 
 
335,432
 
Product
24,320
 
 
21,930
 
 
90,035
 
 
97,099
 
Services and support
70,673
 
 
51,130
 
 
245,088
 
 
189,549
 
Total cost of revenue
201,361
 
 
160,943
 
 
744,317
 
 
622,080
 
 
 
 
 
 
 
 
 
Gross profit
1,105,043
 
 
912,385
 
 
4,051,194
 
 
3,524,985
 
 
 
 
 
 
 
 
 
Operating expenses:
 
 
 
 
 
 
 
Research and development
220,514
 
 
213,687
 
 
862,730
 
 
844,353
 
Sales and marketing
441,472
 
 
408,862
 
 
1,683,242
 
 
1,652,308
 
General and administrative
134,052
 
 
133,534
 
 
531,919
 
 
543,332
 
Restructuring and other charges
521
 
 
19,385
 
 
1,559
 
 
19,883
 
Amortization of purchased intangibles
18,050
 
 
12,412
 
 
68,649
 
 
52,424
 
Total operating expenses
814,609
 
 
787,880
 
 
3,148,099
 
 
3,112,300
 
 
 
 
 
 
 
 
 
Operating income
290,434
 
 
124,505
 
 
903,095
 
 
412,685
 
 
 
 
 
 
 
 
 
Non-operating income (expense):
 
 
 
 
 
 
 
 
 
 
Interest and other income (expense), net
22,399
 
 
105
 
 
33,909
 
 
7,267
 
Interest expense
(16,515
)
 
(12,678
)
 
(64,184
)
 
(59,732
)
Investment gains (losses), net
622
 
 
343
 
 
961
 
 
1,156
 
Total non-operating income (expense), net
6,506
 
 
(12,230
)
 
(29,314
)
 
(51,309
)
Income before income taxes
296,940
 
 
112,275
 
 
873,781
 
 
361,376
 
Provision for income taxes
74,235
 
 
24,139
 
 
244,230
 
 
92,981
 
Net income
$
222,705
 
 
$
88,136
 
 
$
629,551
 
 
$
268,395
 
Basic net income per share
$
0.45
 
 
$
0.18
 
 
$
1.26
 
 
$
0.54
 
Shares used to compute basic net income per share
498,384
 
 
498,124
 
 
498,764
 
 
497,867
 
Diluted net income per share
$
0.44
 
 
$
0.17
 
 
$
1.24
 
 
$
0.53
 
Shares used to compute diluted net income per share
506,012
 
 
507,451
 
 
507,164
 
 
508,480
 

 

3

 

 

Condensed Consolidated Balance Sheets
(In thousands, except par value; unaudited)

 
November 27,
2015(*)
 
November 28,
2014
ASSETS
 
 
 
 
 
 
 
Current assets:
 
 
 
Cash and cash equivalents
$
876,560
 
 
$
1,117,400
 
Short-term investments
3,111,524
 
 
2,622,091
 
Trade receivables, net of allowances for doubtful accounts of $7,293 and $7,867, respectively
672,006
 
 
591,800
 
Deferred income taxes
 
 
95,279
 
Prepaid expenses and other current assets
161,802
 
 
175,758
 
Total current assets
4,821,892
 
 
4,602,328
 
 
 
 
 
Property and equipment, net
787,421
 
 
785,123
 
Goodwill
5,366,881
 
 
4,721,962
 
Purchased and other intangibles, net
510,007
 
 
469,662
 
Investment in lease receivable
80,439
 
 
80,439
 
Other assets
159,832
 
 
126,315
 
Total assets
$
11,726,472
 
 
$
10,785,829
 
 
 
 
 
LIABILITIES AND STOCKHOLDERS’ EQUITY
 
 
 
 
 
 
 
Current liabilities:
 
 
 
Trade payables
$
93,307
 
 
$
68,377
 
Accrued expenses
678,364
 
 
683,866
 
Debt and capital lease obligations
 
 
603,229
 
Accrued restructuring
1,520
 
 
17,120
 
Income taxes payable
6,165
 
 
23,920
 
Deferred revenue
1,434,200
 
 
1,097,923
 
Total current liabilities
2,213,556
 
 
2,494,435
 
 
 
 
 
Long-term liabilities:
 
 
 
Debt
1,907,231
 
 
911,086
 
Deferred revenue
51,094
 
 
57,401
 
Accrued restructuring
3,214
 
 
5,194
 
Income taxes payable
256,129
 
 
125,746
 
Deferred income taxes
208,209
 
 
342,315
 
Other liabilities
85,459
 
 
73,747
 
Total liabilities
4,724,892
 
 
4,009,924
 
 
 
 
 
Stockholders’ equity:
 
 
 
Preferred stock, $0.0001 par value; 2,000 shares authorized
 
 
 
Common stock, $0.0001 par value
61
 
 
61
 
Additional paid-in-capital
4,184,883
 
 
3,778,495
 
Retained earnings
7,253,431
 
 
6,924,294
 
Accumulated other comprehensive income (loss)
(169,080
)
 
(8,094
)
Treasury stock, at cost (103,025 and 103,350 shares, respectively), net of reissuances
(4,267,715
)
 
(3,918,851
)
Total stockholders’ equity
7,001,580
 
 
6,775,905
 
Total liabilities and stockholders’ equity
$
11,726,472
 
 
$
10,785,829
 
_________________________________________ 
(*)
During the fourth quarter of fiscal 2015, we early-adopted Accounting Standards Update No. 2015-17, Balance Sheet Classification of Deferred Taxes. This standard requires that all deferred tax assets and liabilities, and any related valuation allowance, be classified as non-current on the balance sheets. As of November 27, 2015, our deferred tax assets were netted against non-current deferred income tax liabilities.

 

4

 

 

Condensed Consolidated Statements of Cash Flows
(In thousands; unaudited)
 
Three Months Ended
 
November 27,
2015
 
November 28,
2014
Cash flows from operating activities:
 
 
 
Net income
$
222,705
 
 
$
88,136
 
Adjustments to reconcile net income to net cash provided by operating activities:
 
 
 
Depreciation, amortization and accretion
86,359
 
 
78,147
 
Stock-based compensation expense
81,022
 
 
84,950
 
Gain on sale of property
(21,415
)
 
 
Unrealized investment gains, net
(662
)
 
(121
)
Changes in deferred revenue
179,265
 
 
158,712
 
Changes in other operating assets and liabilities
(92,759
)
 
(10,071
)
Net cash provided by operating activities
454,515
 
 
399,753
 
 
 
 
 
Cash flows from investing activities:
 
 
 
Purchases, sales and maturities of short-term investments, net
(277,566
)
 
(8,474
)
Purchases of property and equipment
(64,676
)
 
(36,775
)
Proceeds from the sale of property
57,779
 
 
 
Purchases and sales of long-term investments, intangibles and other assets, net
(1,524
)
 
(2,908
)
Acquisitions, net of cash
 
 
(29,802
)
Net cash used for investing activities
(285,987
)
 
(77,959
)
 
 
 
 
Cash flows from financing activities:
 
 
 
Purchases of treasury stock
(125,000
)
 
(125,000
)
Proceeds from reissuance of treasury stock, net
42
 
 
3,618
 
Repayment of debt and capital lease obligations
 
 
(3,253
)
Excess tax benefits from stock-based compensation
9,808
 
 
21,282
 
Net cash used for financing activities
(115,150
)
 
(103,353
)
Effect of exchange rate changes on cash and cash equivalents
(6,110
)
 
(4,370
)
Net increase in cash and cash equivalents
47,268
 
 
214,071
 
Cash and cash equivalents at beginning of period
829,292
 
 
903,329
 
Cash and cash equivalents at end of period
$
876,560
 
 
$
1,117,400
 

 

5

 

 

Non-GAAP Results
(In thousands, except per share data)
The following tables show Adobe’s GAAP results reconciled to non-GAAP results included in this release.
 
Three Months Ended
 
Year Ended
 
November 27,
2015
 
November 28,
2014
 
August 28,
2015
 
November 27,
2015
 
November 28,
2014
Operating income:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
GAAP operating income
$
290,434
 
 
$
124,505
 
 
$
246,019
 
 
$
903,095
 
 
$
412,685
 
Stock-based and deferred compensation expense
81,705
 
 
85,025
 
 
84,371
 
 
338,047
 
 
335,856
 
Restructuring and other charges
521
 
 
19,385
 
 
(751
)
 
1,559
 
 
19,883
 
Amortization of purchased intangibles
37,678
 
 
31,331
 
 
41,041
 
 
152,590
 
 
127,000
 
Loss contingency (reversal)
 
 
 
 
(10,000
)
 
(10,000
)
 
10,000
 
Non-GAAP operating income
$
410,338
 
 
$
260,246
 
 
$
360,680
 
 
$
1,385,291
 
 
$
905,424
 
 
 
 
 
 
 
 
 
 
 
Net income:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
GAAP net income
$
222,705
 
 
$
88,136
 
 
$
174,465
 
 
$
629,551
 
 
$
268,395
 
Stock-based and deferred compensation expense
81,705
 
 
85,025
 
 
84,371
 
 
338,047
 
 
335,856
 
Restructuring and other charges
521
 
 
19,385
 
 
(751
)
 
1,559
 
 
19,883
 
Amortization of purchased intangibles
37,678
 
 
31,331
 
 
41,041
 
 
152,590
 
 
127,000
 
Investment (gains) losses
(622
)
 
(343
)
 
1,314
 
 
(961
)
 
(1,156
)
Gain on sale of property assets
(21,415
)
 
 
 
 
 
(21,415
)
 
 
Loss contingency (reversal)
 
 
 
 
(10,000
)
 
(10,000
)
 
10,000
 
Income tax adjustments
(8,674
)
 
(27,872
)
 
(15,051
)
 
(35,826
)
 
(86,140
)
Non-GAAP net income
$
311,898
 
 
$
195,662
 
 
$
275,389
 
 
$
1,053,545
 
 
$
673,838
 
 
 
 
 
 
 
 
 
 
 
Diluted net income per share:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
GAAP diluted net income per share
$
0.44
 
 
$
0.17
 
 
$
0.34
 
 
$
1.24
 
 
$
0.53
 
Stock-based and deferred compensation expense
0.16
 
 
0.17
 
 
0.17
 
 
0.67
 
 
0.65
 
Restructuring and other charges
 
 
0.04
 
 
 
 
 
 
0.04
 
Amortization of purchased intangibles
0.07
 
 
0.06
 
 
0.08
 
 
0.30
 
 
0.24
 
Gain on sale of property assets
(0.04
)
 
 
 
 
 
(0.04
)
 
 
Loss contingency (reversal)
 
 
 
 
(0.02
)
 
(0.02
)
 
0.02
 
Income tax adjustments
(0.01
)
 
(0.05
)
 
(0.03
)
 
(0.07
)
 
(0.15
)
Non-GAAP diluted net income per share
$
0.62
 
 
$
0.39
 
 
$
0.54
 
 
$
2.08
 
 
$
1.33
 
 
 
 
 
 
 
 
 
 
 
Shares used in computing diluted net income per share
506,012
 
 
507,451
 
 
505,809
 
 
507,164
 
 
508,480
 
 
 
 
 

 

6

 

 

Non-GAAP Results (continued)
 
 
 
Three Months
Ended
 
November 27,
2015
Effective income tax rate:
 
 
 
GAAP effective income tax rate
25.0
 %
Stock-based and deferred compensation expense
(1.0
)
Amortization of purchased intangibles
(0.5
)
Income tax adjustments
(2.5
)
Non-GAAP effective income tax rate
21.0
 %
 
 
 
 
 
Use of Non-GAAP Financial Information
 
Adobe continues to provide all information required in accordance with GAAP, but believes evaluating its ongoing operating results may not be as useful if an investor is limited to reviewing only GAAP financial measures. Adobe uses non-GAAP financial information to evaluate its ongoing operations and for internal planning and forecasting purposes. Adobe’s management does not itself, nor does it suggest that investors should, consider such non-GAAP financial measures in isolation from, or as a substitute for, financial information prepared in accordance with GAAP. Adobe presents such non-GAAP financial measures in reporting its financial results to provide investors with an additional tool to evaluate Adobe’s operating results. Adobe believes these non-GAAP financial measures are useful because they allow for greater transparency with respect to key metrics used by management in its financial and operational decision-making. This allows institutional investors, the analyst community and others to better understand and evaluate our operating results and future prospects in the same manner as management.
 
Adobe’s management believes it is useful for itself and investors to review, as applicable, both GAAP information that may include items such as stock-based and deferred compensation expenses, restructuring and other charges, amortization of purchased intangibles and certain activity in connection with technology license arrangements, investment gains and losses and the related tax impact of all of these items, income tax adjustments, the income tax effect of the non-GAAP pre-tax adjustments from the provision for income taxes, and the non-GAAP measures that exclude such information in order to assess the performance of Adobe’s business and for planning and forecasting in subsequent periods. Whenever Adobe uses such a non-GAAP financial measure, it provides a reconciliation of the non-GAAP financial measure to the most closely applicable GAAP financial measure. Investors are encouraged to review the related GAAP financial measures and the reconciliation of these non-GAAP financial measures to their most directly comparable GAAP financial measure as detailed above.
 
 
 
 
 
 
 

 

7

 

 

Northrop Grumman Corp. [ $NOC ] Filing..

 

 

AMENDED AND RESTATED
BYLAWS OF

NORTHROP GRUMMAN CORPORATION
(A Delaware Corporation)
ARTICLE I
OFFICES
Section 1.01.    Registered Office. The registered office of Northrop Grumman Corporation (the “Corporation”) in the State of Delaware shall be at Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, and the name of the registered agent at that address shall be The Corporation Trust Company.
Section 1.02.    Principal Executive Office. The principal executive office of the Corporation shall be located at 2980 Fairview Park Drive, Falls Church, Virginia 22042. The Board of Directors of the Corporation (the “Board of Directors”) may change the location of said principal executive office from time to time.
Section 1.03.    Other Offices. The Corporation may also have an office or offices at such other place or places, either within or without the State of Delaware, as the Board of Directors may from time to time determine or as the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01.    Annual Meetings. The annual meeting of stockholders of the Corporation shall be held on such date and at such time as the Board of Directors shall determine. At each annual meeting of stockholders, directors shall be elected in accordance with the provisions of Section 3.04 hereof and any proper business may be transacted in accordance with the provisions of Section 2.08 hereof.
Section 2.02.    Special Meetings.
(a)    Subject to the terms of any class or series of Preferred Stock, special meetings of the stockholders of the Corporation may be called by the Board of Directors (or an authorized committee thereof) or the Chairperson of the Board of Directors and shall be called by the Secretary of the Corporation following the Secretary’s receipt of written requests to call a meeting from the holders of at least 25% of the voting power (the “Required Percentage”) of the outstanding capital stock of the Corporation (the “Voting Stock”) who shall have delivered such requests in accordance with this bylaw. Except as otherwise required by law or provided by the terms of any class or series of Preferred Stock, special meetings of stockholders of the Corporation may not be called by any other person or persons.
(b)    A stockholder may not submit a written request to call a special meeting unless such stockholder is a holder of record of Voting Stock on the record date fixed to determine the stockholders entitled to request the call of a special meeting. Any stockholder seeking to call a

 

 
 

 

 

special meeting to transact business shall, by written notice to the Secretary, request that the Board of Directors fix a record date. A written request to fix a record date shall include all of the information that must be included in a written request to call a special meeting from a stockholder who is not a Solicited Stockholder, as set forth in the succeeding paragraph (c) of this bylaw. The Board of Directors may, within 10 days of the Secretary’s receipt of a request to fix a record date, fix a record date to determine the stockholders entitled to request the call of a special meeting, which date shall not precede, and shall not be more than 10 days after, the date upon which the resolution fixing the record date is adopted. If a record date is not fixed by the Board of Directors, the record date shall be the date that the first written request to call a special meeting is received by the Secretary with respect to the proposed business to be conducted at a special meeting.
(c)    Each written request for a special meeting shall include the following: (i) the signature of the stockholder of record signing such request and the date such request was signed, (ii) a brief description of the business desired to be brought before the meeting and the reasons for conducting such business at the meeting, and (iii) for each written request submitted by a person or entity other than a Solicited Stockholder, as to the stockholder signing such request and the beneficial owner (if any) on whose behalf such request is made (each, a “party”):
(1)    the name and address of such party;
(2)    the class, series and number of shares of the Corporation that are owned beneficially and of record by such party (which information set forth in this clause shall be supplemented by such party not later than 10 days after the record date for determining the stockholders entitled to notice of the special meeting to disclose such ownership as of such record date);
(3)    a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, warrants, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of the stockholder’s notice by, or on behalf of, such party, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such party with respect to shares of stock of the Corporation (which information set forth in this clause shall be supplemented by such party not later than 10 days after the record date for determining the stockholders entitled to notice of the special meeting to disclose such ownership as of such record date);
(4)    any other information relating to each such party 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 the proposal pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (such act, and the rules and regulations promulgated thereunder, the “Exchange Act”);
(5)    any material interest of such party in one or more of the items of business proposed to be transacted at the special meeting; and
(6)    a statement whether or not any such party will deliver a proxy statement and form of proxy to holders of at least the percentage of voting power of all of the shares of capital

 

2
 

 

 

stock of the Corporation required under applicable law to carry the proposal (such statement, a “Solicitation Statement”).
For purposes of this bylaw, “Solicited Stockholder” means any stockholder that has provided a request in response to a solicitation made pursuant to, and in accordance with, Section 14(a) of the Exchange Act by way of a solicitation statement filed on Schedule 14A.
A stockholder may revoke a request to call a special meeting by written revocation delivered to the Secretary at any time prior to the special meeting; provided, however, that if any such revocation(s) are received by the Secretary after the Secretary’s receipt of written requests from the holders of the Required Percentage of Voting Stock, and as a result of such revocation(s), there no longer are unrevoked requests from the Required Percentage of Voting Stock to call a special meeting, the Board of Directors shall have the discretion to determine whether or not to proceed with the special meeting. A business proposal shall not be presented for stockholder action at any special meeting if (i) any stockholder or beneficial owner who has provided a Solicitation Statement with respect to such proposal does not act in accordance with the representations set forth therein or (ii) the business proposal appeared in a written request submitted by a stockholder who did not provide the information required by the preceding clause (c)(2) or (c)(3) of this bylaw in accordance with such clauses.
(d)    The Secretary shall not accept, and shall consider ineffective, a written request from a stockholder to call a special meeting (i) that does not comply with the preceding provisions of this bylaw, (ii) that relates to an item of business that is not a proper subject for stockholder action under applicable law, (iii) if such request is delivered between the time beginning on the 61st day after the earliest date of signature on a written request that has been delivered to the Secretary relating to an identical or substantially similar item (such item, a “Similar Item”) and ending on the one-year anniversary of such earliest date, (iv) if a Similar Item will be submitted for stockholder approval at any stockholder meeting to be held on or before the 90th day after the Secretary receives such written request, or (v) if a Similar Item has been presented at the most recent annual meeting or at any special meeting held within one year prior to receipt by the Secretary of such request to call a special meeting.
(e)    The Board of Directors shall determine in good faith whether the requirements set forth in subparagraphs (d) (ii) through (v) have been satisfied. Either the Secretary or the Board of Directors shall determine in good faith whether all other requirements set forth in this bylaw have been satisfied. Any determination made pursuant to this paragraph shall be binding on the Corporation and its stockholders.
(f)    The Board of Directors shall determine the place, and fix the date and time, of any special meeting called at the request of one or more stockholders. The Board of Directors may submit its own proposal or proposals for consideration at a special meeting called by the Chairperson of the Board of Directors or called at the request of one or more stockholders. The record date or record dates for a special meeting shall be fixed in accordance with Section 213 of the Delaware General Corporation Law (as amended from time to time) (the “DGCL”) (or any successor provision thereof). Business transacted at any special meeting shall be limited to the purposes stated in the notice of such meeting.

 

3
 

 

 

Section 2.03.    Place of Meetings.
(a)    Subject to Section 2.02(f), each annual or special meeting of stockholders shall be held at such location as may be determined by the Board of Directors or, if no such determination is made, at such place as may be determined by the Chairperson of the Board of Directors. If no location is so determined, the annual or special meeting shall be held at the principal executive office of the Corporation. Notwithstanding the foregoing, the Board of Directors may, in its sole discretion, determine that an annual meeting shall not be held at any place, but may instead be held solely by means of remote communication as authorized by Section 2.03(b).
(b)    If authorized by the Board of Directors in its sole discretion, and subject to such guidelines and procedures as the Board of Directors may adopt, stockholders and proxy holders not physically present at a meeting of stockholders may, by means of remote communication:
(1)    participate in a meeting of stockholders; and
(2)    be deemed present in person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication; provided that (A) the Corporation implements reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxy holder, (B) the Corporation implements reasonable measures to provide such stockholders and proxy holders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (C) if any stockholder or proxy holder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action is maintained by the Corporation.
Section 2.04.    Notice of Meetings.
(a)    Unless otherwise required by law, written notice of each annual or special meeting of stockholders stating the date and time of such meeting, the place, if any, where it is to be held, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the information required to gain access to the list of stockholders entitled to vote, if such list is to be open for examination only on a reasonably accessible electronic network, and the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders entitled to notice of the meeting, shall be given not less than 10 nor more than 60 days before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting. The purpose or purposes for which the meeting is called may, in the case of an annual meeting, and shall, in the case of a special meeting, also be stated. If mailed, notice is given when it is deposited in the United States mail, postage prepaid, directed to a stockholder at such stockholder’s address as it shall appear on the records of the Corporation.
(b)    Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under any provision of the DGCL,

 

4
 

 

 

the Certificate of Incorporation of the Corporation (the “Certificate”) or these Bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice to the Corporation. Any such consent shall be deemed revoked if (i) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent, and (ii) such inability becomes known to the Secretary or an assistant secretary of the Corporation or to the transfer agent or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action. Notice given pursuant to this Section 2.04(b) shall be deemed given: (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice, (ii) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice, (iii) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (1) such posting and (2) the giving of such separate notice, and (iv) if by any other form of electronic transmission, when directed to the stockholder. For purposes of these Bylaws, “electronic transmission” means any form of communication not directly involving the physical transmission of paper that creates a record the recipient may retain, retrieve and review and directly reproduce in paper form through an automated process.
(c)    Without limiting the manner by which notice otherwise may be given effectively to stockholders, but subject to Section 233(d) of the DGCL (or any successor provision thereof), any notice to stockholders given by the Corporation under any provision of the DGCL, the Certificate or these Bylaws shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders at that address to whom such notice is given. Any such consent shall be revocable by the stockholder by written notice to the Corporation. Any stockholder who fails to object in writing to the Corporation, within 60 days of having been given written notice by the Corporation of its intention to send the single notice described in the preceding sentence, shall be deemed to have consented to receiving such single written notice.
Section 2.05.    Waiver of Notice. Whenever notice is required to be given under any provision of the DGCL or the Certificate or these Bylaws, a written waiver, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein (and whether or not stating the business transacted at, or the purpose of, any meeting) shall be deemed equivalent to notice. Attendance of a person at a meeting will constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.
Section 2.06.    Adjourned Meetings. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place, if any, thereof, and the means of remote communication, if any, by which the stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken; provided, however, that if the adjournment is for more than 30 days then notice of the place, if any, date and time of the adjourned meeting and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in

 

5
 

 

 

person and vote at such adjourned meeting, shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting, the Board of Directors shall fix a new record date for notice of such adjourned meeting in accordance with Section 213(a) of the DGCL, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for notice of such adjourned meeting. At any adjourned meeting, any business may be transacted which might have been transacted at the original meeting.
Section 2.07.    Conduct of Meetings. All annual and special meetings of stockholders shall be conducted in accordance with such rules and procedures as the Board of Directors may determine subject to the requirements of applicable law and, as to matters not governed by such rules and procedures, as the chairperson of such meeting shall determine. Such rules or procedures, whether adopted by the Board of Directors or prescribed by the chairperson of such meeting, may include without limitation the following: (a) the establishment of an agenda or order of business for the meeting, (b) rules and procedures for maintaining order at the meeting and the safety of those present, (c) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairperson of the meeting shall determine, (d) restrictions on entry to the meeting after the time fixed for commencement thereof, and (e) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board of Directors or the chairperson of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. The chairperson of the meeting may adjourn or recess the meeting.
The chairperson of any annual or special meeting of stockholders shall be either the Chairperson of the Board of Directors or any person designated by the Chairperson of the Board of Directors. The Secretary, or in the absence of the Secretary, a person designated by the chairperson of the meeting, shall act as secretary of the meeting.
Section 2.08.    Notice of Stockholder Business and Nominations. Nominations of persons for election to the Board of Directors and the proposal of business to be transacted by the stockholders may be made at an annual meeting of stockholders (a) pursuant to the Corporation’s proxy materials with respect to such meeting, (b) by or at the direction of the Board of Directors, (c) by any stockholder of record of the Corporation (the “Record Stockholder”) at the time of the giving of the notice required in the following paragraph, who is entitled to vote at the meeting and who has complied with the notice procedures set forth in this Section 2.08 or (d) by an Eligible Stockholder (as defined in Section 2.09) that complies with the requirements of Section 2.09 and the Bylaws. For the avoidance of doubt, the foregoing clauses (c) and (d) shall be the exclusive means for a stockholder to bring nominations or business (other than business included in the Corporation’s proxy materials pursuant to Rule 14a-8 under the Exchange Act) at an annual meeting of stockholders.
For nominations or business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of the foregoing paragraph, (1) the Record Stockholder must have given timely notice thereof in writing to the Secretary of the Corporation, (2) any such business must be a proper matter for stockholder action under applicable law, and (3) the Record Stockholder

 

6
 

 

 

and the beneficial owner, if any, on whose behalf any such proposal or nomination is made, must have acted in accordance with the representations set forth in the Solicitation Statement required by these Bylaws. To be timely, a Record Stockholder’s notice shall be received by the Secretary at the principal executive offices of the Corporation not less than 90 or more than 120 days prior to the one-year anniversary of the date on which the Corporation first mailed its proxy materials (or in absence of proxy materials, its notice of meeting) for the preceding year’s annual meeting of stockholders; provided, however, that, subject to the last sentence of this paragraph, if the annual meeting is convened more than 30 days prior to or delayed by more than 30 days after the one year anniversary of the preceding year’s annual meeting, or if no annual meeting was held in the preceding year, notice by the Record Stockholder to be timely must be so received not later than the close of business on the later of (i) the 135th day before such annual meeting or (ii) the 10th day following the day on which public announcement of the date of such meeting is first made. Notwithstanding anything in the preceding sentence to the contrary, in the event that the number of directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board made by the Corporation at least 10 days before the last day a Record Stockholder may deliver a notice of nomination in accordance with the preceding sentence, a Record Stockholder’s notice required by this bylaw shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the Corporation. In no event shall an adjournment of an annual meeting, or the postponement of an annual meeting for which notice has been given, commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described herein.
Such Record Stockholder’s notice shall set forth: (a) if such notice pertains to the nomination of directors, as to each person whom the Record Stockholder proposes to nominate for election or reelection as a director (i) all information relating to such person as would be required to be disclosed in solicitations of proxies for the election of such nominees as directors pursuant to Regulation 14A under the Exchange Act and such person’s written consent to be named in the proxy statement as a nominee and to serve as a director if elected; (ii) a statement whether such person, if elected, will tender, promptly following such person’s election, an irrevocable resignation effective upon such person’s failure to receive the required vote for reelection at any future meeting at which such person would face reelection and upon acceptance of such resignation by the Board of Directors, in accordance with the Corporation’s Principles of Corporate Governance; and (iii) a statement that such person is in compliance with, and will remain in compliance with, Section 3.15; while standing for election and during such person’s service as a director; (b) as to any business that the Record Stockholder proposes to bring before the meeting, a brief description of such business, the reasons for conducting such business at the meeting and any material interest in such business of such Record Stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (c) as to (1) the Record Stockholder giving the notice and (2) the beneficial owner, if any, on whose behalf the nomination or proposal is made (each, a “party”) (i) the name and address of each such party; (ii) the class, series and number of shares of the Corporation that are owned, directly or indirectly, beneficially and of record by each such party (which information set forth in this clause shall be supplemented by such stockholder or such beneficial owner, as the case may be, not later

 

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than 10 days after the record date for determining the stockholders entitled to notice of the meeting to disclose such ownership as of such record date); (iii) a description of any agreement, arrangement or understanding with respect to the nomination between or among such stockholder and such beneficial owner, any of their respective affiliates or associates, and any others acting in concert with any of the foregoing; (iv) a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, warrants, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of the stockholder’s notice by, or on behalf of, such Record Stockholder or such beneficial owners, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such stockholder and such beneficial owner, with respect to shares of stock of the Corporation (which information set forth in this clause shall be supplemented by such party not later than 10 days after the record date for determining the stockholders entitled to notice of the special meeting to disclose such ownership as of such record date); (v) any other information relating to each such party that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act; (vi) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting; and (vii) a statement whether or not each such party will deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of voting power of all of the shares of capital stock of the Corporation required under applicable law to carry the proposal or, in the case of a nomination or nominations, at least the percentage of voting power of all of the shares of capital stock of the Corporation reasonably believed by the Record Stockholder or the beneficial holder, as the case may be, to be sufficient to elect the nominee or nominees proposed to be nominated by such stockholder and/or intends otherwise to solicit proxies from stockholders in support of such proposal or nomination (such statement, a “Solicitation Statement”).
Only persons nominated in accordance with the procedures set forth in this Section 2.08 or Section 2.09 shall be eligible to serve as directors at an annual meeting of stockholders and only such business shall be conducted at an annual meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 2.08 or Section 2.09. The chairperson of the meeting shall have the power and the duty to determine whether a nomination or any business proposed to be brought before the meeting has been made in accordance with the procedures set forth in these Bylaws and, if any proposed nomination or business is not in compliance with these Bylaws, to declare that such defectively proposed business or nomination shall not be presented for stockholder action at the meeting and shall be disregarded.
Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting in accordance with Section 2.02. The notice of such special meeting shall include the purpose for which the meeting is called. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected (a) by or at the direction of the Board of Directors or (b) by any stockholder of record of the Corporation at the time of giving of notice provided for in this paragraph, who shall be entitled to vote at the meeting and who delivers a written notice to the Secretary setting forth the information set forth in clauses (a) and (c) of the third paragraph of this Section 2.08. Nominations by stockholders

 

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of persons for election to the Board of Directors may be made at a special meeting of stockholders only if such stockholder’s notice required by the preceding sentence shall be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the later of the 135th day prior to such special meeting or the 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall an adjournment of a special meeting, or a postponement of a special meeting for which notice has been given, commence a new time period for the giving of a Record Stockholder’s notice. A person shall not be eligible for election or reelection as a director at a special meeting unless the person is nominated (i) by or at the direction of the Board of Directors or (ii) by a Record Stockholder in accordance with the notice procedures set forth in this Section 2.08.
For purposes of this Section 2.08, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or a comparable national news service or in a document publicly filed with or furnished to, the Securities and Exchange Commission (the “SEC”) pursuant to Section 13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this Section 2.08, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to matters set forth in this Section 2.08. Nothing in this Section 2.08 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 2.09.    Proxy Access. (a) For any annual meeting at which directors are to be elected, the Corporation shall include in its proxy statement and on its form of proxy the name of a stockholder nominee for election to the Board of Directors submitted pursuant to Section 2.08(d) and this Section 2.09 (each a “Proxy Access Nominee”) provided (i) timely notice of such Proxy Access Nominee satisfying both Section 2.08 and this Section 2.09 (“Notice”) is delivered to the Corporation by or on behalf of a stockholder or stockholders that, at the time the Notice is delivered, satisfy the ownership and other requirements of both Section 2.08 and this Section 2.09 (such stockholder or stockholders, and any person on whose behalf they are acting, the “Eligible Stockholder”); (ii) the Eligible Stockholder expressly elects in writing at the time of providing the Notice to have its nominee included in the Corporation’s proxy statement pursuant to this Section 2.09; and (iii) the Eligible Stockholder (including each member of a group of persons that is an Eligible Stockholder hereunder), the Proxy Access Nominee and the nomination otherwise satisfy the requirements of this Section 2.09 and these Bylaws. To be timely, such notice must be received by the Secretary at the principal executive offices of the Corporation not less than 120 or more than 150 days prior to the one-year anniversary of the date on which the Corporation first mailed its proxy materials (or in the absence of proxy materials, its notice of meeting) for the preceding year’s annual meeting of stockholders; provided, however, that, subject to the last sentence of this paragraph, if the annual meeting is convened more than 30 days prior to or delayed by more than 30 days after the one year anniversary of the preceding year’s annual meeting, or if no annual meeting was held in the preceding year, notice by the Eligible Stockholder to be timely must be so received not later than the close of business on the later of (x) the 135th day before such annual meeting or (y) the 10th day following the day on which public announcement of the date of such meeting is first made. In no event shall

 

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an adjournment of an annual meeting, or the postponement of an annual meeting for which notice has been given (or with respect to which there has been a public announcement of the date of the meeting), commence a new time period (or extend any time period) for the giving of an Eligible Stockholder’s notice as described herein.
(b) In addition to including the name of the Proxy Access Nominee in the Corporation’s proxy statement for the annual meeting, the Corporation shall include (i) the information concerning the Proxy Access Nominee and the Eligible Stockholder (including as to each member of any group of persons that together is an Eligible Stockholder) that is required to be disclosed in the Corporation’s proxy statement pursuant to Section 14 of the Exchange Act and the rules and regulations thereunder and these Bylaws, including as specified in Section 3.15 of these Bylaws and (ii) if the Eligible Stockholder so elects, a Statement (defined below) (collectively, the “Required Information”). Nothing in this Section 2.09 shall limit the Corporation’s ability to solicit against and include in its proxy statement its own statements relating to any Proxy Access Nominee.
 
(c)(i) The number of Proxy Access Nominees appearing in the Corporation’s proxy statement with respect to a meeting of stockholders shall not exceed the greater of (A) two or (B) 20% of the number of directors in office as of the last day on which notice of a nomination may be delivered pursuant to this Section 2.09 (the “Final Proxy Access Nomination Date”) or, if such amount is not a whole number, the closest whole number below 20% (the “Permitted Number”); provided, however, that (1) any director in office as of the nomination deadline who was included in the Corporation’s proxy materials as a Proxy Access Nominee for either of the two preceding annual meetings and whom the Board of Directors decides to nominate for election to the Board of Directors will be counted against the Permitted Number, and (2) in the event that one or more vacancies for any reason occurs on the Board of Directors at any time after the Final Proxy Access Nomination Date and before the date of the applicable annual meeting of stockholders and the Board of Directors resolves to reduce the size of the Board of Directors in connection therewith, the Permitted Number shall be calculated based on the number of directors in office as so reduced.
 
(ii) In the event that the number of Proxy Access Nominees submitted by Eligible Stockholders pursuant to this Section 2.09 exceeds the Permitted Number, each Eligible Stockholder shall select one Proxy Access Nominee for inclusion in the Corporation’s proxy statement until the Permitted Number is reached, going in the order of the amount (largest to smallest) of shares of the Corporation’s capital stock each Eligible Stockholder disclosed as owned in the Notice. If the Permitted Number is not reached after each Eligible Stockholder has selected one Proxy Access Nominee, this selection process shall continue as many times as necessary, following the same order each time, until the Permitted Number is reached. If any of the Proxy Access Nominees selected pursuant to this process are thereafter nominated by the Board of Directors (“Board Nominees”), not included in the Corporation’s proxy statement, or are not submitted for director election for any reason (including the withdrawal of the nomination of such Proxy Access Nominee or the failure to comply with Section 2.08 and this Section 2.09), no additional nominee or nominees (other than any nominee already determined to be a Proxy Access Nominee who continues to comply with this Section 2.09) shall be included in

 

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the Corporation’s proxy statement or otherwise submitted for director election pursuant to this Section 2.09.
 
(d)(i) An Eligible Stockholder must have owned (as defined below) continuously for at least three years a number of shares that represents 3% or more of the Corporation’s outstanding shares of capital stock entitled to vote in the election of directors (the “Required Shares”) as of both the date the Notice is delivered to or mailed and received by the Corporation and the record date for determining stockholders entitled to vote at the meeting and must continue to own the Required Shares through the date of the annual meeting. For purposes of satisfying the ownership requirement under this Section 2.09, the shares of the Corporation’s capital stock owned by one or more stockholders, or by the person or persons who own the shares and on whose behalf any person is acting, may be aggregated, provided that the number of stockholders and other persons whose ownership of shares is aggregated for such purpose shall not exceed 20, and a group of any two or more funds that are (A) under common management and investment control, (B) under common management and funded primarily by a single employer (or by a group of related employers that are under common control), or (C) a “group of investment companies,” as such term is defined in Section 12(d)(1)(G)(ii) of the Investment Company Act of 1940, as amended, shall be treated as one stockholder or person for this purpose. With respect to any one particular annual meeting, no person may be a member of more than one group of persons constituting an Eligible Stockholder under this Section 2.09.
 
(ii) For purposes of this Section 2.09, a person shall be deemed to “own” only those outstanding shares of the Corporation’s capital stock as to which the person possesses both (A) the full voting and investment rights pertaining to the shares and (B) the full economic interest in (including the opportunity for profit and risk of loss on) such shares; provided that the number of shares calculated in accordance with clauses (A) and (B) shall not include any shares (x) sold by such person or any of its affiliates in any transaction that has not been settled or closed, (y) borrowed by such person or any of its affiliates for any purposes or purchased by such person or any of its affiliates pursuant to an agreement to resell or (z) subject to any option, warrant, forward contract, swap, contract of sale, other derivative or similar agreement entered into by such person or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of outstanding shares of the Corporation’s capital stock, in any such case which instrument or agreement has, or is intended to have, the purpose or effect of (1) reducing in any manner, to any extent or at any time in the future, such person’s or affiliates’ full right to vote or direct the voting of any such shares and/or (2) hedging, offsetting or altering to any degree gain or loss arising from the full economic ownership of such shares by such person or affiliate. A person shall “own” shares held in the name of a nominee or other intermediary so long as the person retains the right to instruct how the shares are voted with respect to the election of directors and possesses the full economic interest in the shares. A person’s ownership of shares shall be deemed to continue during any period in which (a) the person has loaned such shares, provided that the person has the power to recall such loaned shares on five business days’ notice and promptly recalls such loaned shares upon being notified that any of its Proxy Access Nominees will be included in the Corporation’s proxy statement, or (b) the person has delegated any voting power by means of a proxy, power of attorney or other instrument or arrangement that is revocable at any time by the person. For

 

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purposes of this Section 2.09, the term “affiliate” shall have the meaning ascribed thereto in the regulations promulgated under the Exchange Act. The terms “owned,” “owning” and other variations of the word “own” shall have correlative meanings.
 
(e) The Eligible Stockholder (including each member of a group of persons that is an Eligible Stockholder hereunder) must provide with its Notice the following information in writing satisfactory to the Secretary (in addition to the information required to be provided by Section 2.08): (i) one or more written statements from the record holder of the shares (and from each intermediary through which the shares are or have been held during the requisite three-year holding period) verifying that, as of a date within seven calendar days prior to the date the Notice is delivered to or mailed and received by the Corporation, the Eligible Stockholder owns, and has owned continuously for the preceding three years, the Required Shares, and the Eligible Stockholder’s agreement to provide, (A) within five business days after the record date for the meeting, written statements from the record holder and intermediaries verifying the Eligible Stockholder’s continuous ownership of the Required Shares through the record date and (B) immediate notice if the Eligible Stockholder ceases to own any of the Required Shares prior to the date of the applicable annual meeting of stockholders; (ii) documentation satisfactory to the Corporation demonstrating that a group of funds qualifies to be treated as one stockholder or person within the meaning of Section 2.09(d)(i); (iii) a representation that the Eligible Stockholder (including each member of any group of persons that together is an Eligible Stockholder hereunder): (A) will continue to own the Required Shares through the date of the annual meeting, (B) acquired the Required Shares in the ordinary course of business and not with the intent to change or influence control of the Corporation, and does not presently have such intent, (C) has not nominated and will not nominate for election to the Board of Directors at the meeting any person other than the Proxy Access Nominee being nominated pursuant to this Section 2.09, (D) has not engaged and will not engage in, and has not and will not be, a “participant” in another person’s “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act in support of the election of any individual as a director at the meeting other than its Proxy Access Nominee or a Board Nominee, (E) will not distribute to any stockholder any form of proxy for the meeting other than the form distributed by the Corporation, and (F) will provide facts, statements and other information in all communications with the Corporation and its stockholders that are or will be true and correct in all material respects and do not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; (iv) the written consent of each Proxy Access Nominee to be named in the proxy statement as a nominee and to serve as a director if elected; (v) a copy of the Schedule 14N that has been filed with the SEC as required by Rule 14a-18 under the Exchange Act; (vi) in the case of a nomination by a group of persons that together is an Eligible Stockholder, the designation by all group members of one group member that is authorized to act on behalf of all members of the nominating stockholder group with respect to the nomination and matters related thereto, including withdrawal of the nomination; and (vii) an undertaking that the Eligible Stockholder agrees to: (A) assume all liability stemming from any legal, regulatory or contractual violation arising out of the Eligible Stockholder’s communications with the Corporation’s stockholders or out of the information that the Eligible Stockholder provided to the Corporation, (B) indemnify and hold harmless the Corporation and each of its directors, officers and employees individually against any liability,

 

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loss or damages in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the Corporation or any of its directors, officers or employees arising out of any nomination submitted by the Eligible Stockholder pursuant to this Section 2.09, (C) file with the SEC all soliciting and other materials as required by these Bylaws or the Exchange Act as well as any other communication with the Corporation’s stockholders relating to the meeting at which the Proxy Access Nominee will be nominated, regardless of whether any such filing is required under Section 14 of the Exchange Act and the rules and regulations thereunder or whether any exemption from filing is available for such solicitation or other communication under Section 14 of the Exchange Act and the rules and regulations thereunder, and (D) comply with all other applicable laws, rules, regulations and listing standards with respect to any solicitation in connection with the meeting.
 
(f) The Eligible Stockholder may include with its Notice an appropriate written statement for inclusion in the Corporation’s proxy statement for the meeting, not to exceed 500 words per Proxy Access Nominee, in support of each of the Eligible Stockholder’s Proxy Access Nominees (the “Statement”). Notwithstanding anything to the contrary contained in this Article II, the Corporation may omit from its proxy statement any information or Statement that it believes would violate any applicable law, rule, regulation or listing standard.
 
(g) Each Proxy Access Nominee must: (i) provide within five business days of the Corporation’s request an executed agreement, in a form satisfactory to the Corporation or its designee, that: (A) the Proxy Access Nominee will adhere to the Corporation’s Principles of Corporate Governance, Standards of Business Conduct and any and all other Corporation policies and guidelines applicable to directors including, without limitation, policies with regard to securities trading, (B) the Proxy Access Nominee meets all requirements for nomination, election and service as a director as set forth in the Corporation’s Principles of Corporate Governance or otherwise stated by the Corporation, and (C) the Proxy Access Nominee is in compliance with, and will remain in compliance with, Section 3.15; in each case, while standing for election and during such person’s service as a director; (ii) at the request of the Governance Committee, meet with the Governance Committee to discuss matters relating to the nomination of such Proxy Access Nominee as a director, such Proxy Access Nominee’s eligibility to serve on the Board of Directors and such Proxy Access Nominee’s potential service as a director; (iii) submit all completed and signed questionnaires and other forms required of the Corporation’s Board of Directors within five business days of receipt of each such questionnaire from the Corporation; and (iv) provide within five business days of the Corporation’s request such additional information as the Corporation determines may be necessary, including information necessary to permit the Corporation to determine: (A) if such Proxy Access Nominee is independent under the listing standards of each U.S. exchange upon which the Common Stock of the Corporation is listed, any applicable rules of the SEC and any standards used by the Board of Directors in determining and disclosing the independence of the Corporation’s directors (the “Independence Standards”), (B) if such Proxy Access Nominee has any material direct or indirect relationship with the Corporation (or any of its subsidiaries), (C) if such Proxy Access Nominee meets all requirements established by the Corporation for nomination, election and service as a director and will be able to meet all obligations of a director, (D) is in compliance with all requirements of these Bylaws, including those specified in Section 2.09(i), and (E) if

 

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such Proxy Access Nominee is or has been subject to (1) any event specified in Item 401(f) of Regulation S-K (or successor rule) of the SEC or (2) any order of the type specified in Rule 506(d) of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”).
 
(h) In the event that any information or communications provided by the Eligible Stockholder or Proxy Access Nominee to the Corporation or its stockholders ceases to be true and correct in any respect or omits a fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, each Eligible Stockholder or Proxy Access Nominee, as the case may be, shall promptly notify the Secretary of any such inaccuracy or omission in such previously provided information and of the information that is required to make such information or communication complete, true and correct, it being understood that providing such notice shall not be deemed to cure any defect or limit the Corporation’s right to omit a Proxy Access Nominee from its proxy materials as provided in this Section 2.09.
 
(i) The Corporation shall not be required to include, pursuant to this Section 2.09, a Proxy Access Nominee in its proxy statement (or, if the proxy statement has already been filed, to allow the nomination of a Proxy Access Nominee, notwithstanding that proxies in respect of such vote may have been received by the Corporation): (i) for any meeting for which the Secretary receives a notice that a stockholder has nominated a person for election to the Board of Directors pursuant to the advance notice requirements for stockholder nominees for director set forth in Section 2.08 and such stockholder does not expressly elect at the time of providing the notice to have its nominee included in the Corporation’s proxy materials pursuant to this Section 2.09; (ii) if the Eligible Stockholder (including each member of any group of persons that is an Eligible Stockholder hereunder) who has nominated the Proxy Access Nominee has nominated for election to the Board of Directors at the meeting any person other than the Proxy Access Nominee(s) being nominated pursuant to this Section 2.09, or has or is engaged in, or has been or is a “participant” in another person’s “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act in support of the election of any individual as a director at the meeting other than its Proxy Access Nominee(s) or a Board Nominee under this Section 2.09; (iii) who is not independent under the Independence Standards; (iv) whose election as a member of the Board of Directors would be inconsistent with, or cause the Corporation to be in violation of these Bylaws, the Certificate, the Corporation’s Principles of Corporate Governance, the listing standards of any exchange upon which the Corporation’s capital stock is traded or any applicable state or federal law, rule or regulation; (v) if the Proxy Access Nominee does not meet any requirement of the Corporation’s Principles of Corporate Governance, including those for nomination, election and service as a Board of Directors or stockholder nominee, or as a director; (vi) if the Proxy Access Nominee is or becomes a party to any agreement, arrangement or understanding with any person or entity that would compromise the Proxy Access Nominee’s ability to fulfill their fiduciary duties as an independent director; (vii) who is or has been, within the past three years, an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, as amended (a “Competitor”); (viii) whose business or personal interests present a conflict of interest with the Corporation, including as a result of continued receipt of any form of compensation or financial benefit from a Competitor (such as pension payments), or interfere with the Proxy Access Nominee’s ability fully to meet the fiduciary duties of directors,

 

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including, but not limited to, the duty of loyalty and duty of care; (ix) who is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in such a criminal proceeding within the past ten years; (x) who is subject to any order of the type specified in Rule 506(d) of Regulation D promulgated under the Securities Act; (xi) if such Proxy Access Nominee or the applicable Eligible Stockholder (including any member of a group of persons that is an Eligible Stockholder hereunder) shall have provided information to the Corporation with respect to such nomination that was untrue in any material respect or omitted to state a material fact necessary in order to make the statement made, in light of the circumstances under which it was made, not misleading; or (xii) if the Eligible Stockholder or applicable Proxy Access Nominee breaches or otherwise contravenes any of the agreements, representations or undertakings made by such Eligible Stockholder or Proxy Access Nominee or fails to comply with its obligations pursuant to this Section 2.09.
 
(j) Notwithstanding anything to the contrary set forth herein, the Board of Directors or the person presiding at the meeting shall be entitled to declare a nomination by an Eligible Stockholder to be invalid, and such nomination shall be disregarded notwithstanding that proxies in respect of such vote may have been received by the Corporation, if the Eligible Stockholder (or a qualified representative thereof) does not appear at the meeting to present the nomination pursuant to this Section 2.09.
 
(k) The Board of Directors (and any other person or body authorized by the Board of Directors) shall have the power and authority to interpret this Section 2.09, Section 2.08 and Section 3.15 and to make any and all determinations necessary or advisable to apply such sections to any persons, facts or circumstances, including the power to determine (i) whether a person or group of persons qualifies as an Eligible Stockholder; (ii) whether outstanding shares of the Corporation’s capital stock are “owned” for purposes of meeting the ownership requirements of this Section 2.09; (iii) whether a notice submitted pursuant to this Section 2.09 complies with the requirements of Section 2.08 and this Section 2.09; (iv) whether a person satisfies the qualifications and requirements imposed by Section 2.08 and this Section 2.09 to be a Proxy Access Nominee; (v) whether inclusion of the Required Information in the Corporation’s proxy statement is consistent with all applicable laws, rules, regulations and listing standards; and (vi) whether any and all requirements of Section 2.08 and Section 3.15 and this Section 2.09 have been satisfied. Any such interpretation or determination adopted in good faith by the Board of Directors (or any other person or body authorized by the Board of Directors) shall be binding on all persons, including the Corporation and all record or beneficial owners of stock of the Corporation.
 
Section 2.10.    Quorum. Unless or except to the extent that the presence of a larger number may be required by law, by the rules of any stock exchange upon which the Corporation’s securities are traded, the Certificate or these Bylaws, at any meeting of stockholders, the presence, in person or by proxy, of the holders of record of a majority of the voting power of all the shares of the Corporation’s capital stock then issued and outstanding and entitled to vote at the meeting shall constitute a quorum for the transaction of business. Where a separate vote by a class or classes or series is required, a majority of the voting power of the shares of such class or classes or series present in person or represented by proxy shall constitute a quorum entitled to take action with

 

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respect to the vote on that matter. The chairperson of the meeting may adjourn the meeting (whether or not a quorum is present) from time to time. At any reconvened meeting following such an adjournment at which a quorum shall be present, any business may be transacted which might have been transacted at the original meeting.
Section 2.11.    Votes Required. When a quorum is present at a meeting, a matter submitted for stockholder action shall be approved if the votes cast “for” the matter exceed the votes cast “against” such matter, unless a greater or different vote is required by statute, any applicable law or regulation (including the applicable rules of any stock exchange), the rights of any authorized class of stock, the Certificate or these Bylaws. Unless the Certificate or a resolution of the Board of Directors adopted in connection with the issuance of shares of any class or series of stock provides for a greater or lesser number of votes per share, or limits or denies voting rights, each outstanding share of stock, regardless of class, shall be entitled to one vote on each matter submitted to a vote at a meeting of stockholders.
Section 2.12.    Proxies. A stockholder may vote the shares owned of record by such stockholder either in person or by proxy in any manner permitted by law, including by execution of a proxy in writing or by telex, telegraph, cable, facsimile or electronic transmission, by the stockholder or by the duly authorized officer, director, employee or agent of such stockholder. No proxy shall be voted or acted upon after 3 years from its date, unless the proxy provides for a longer period. A duly executed proxy will be irrevocable if it states it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally.
Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission created pursuant to the immediately preceding paragraph may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.
Section 2.13.    Stockholder Action by Written Consent. (a) The holders of Common Stock of the Corporation may take action by written consent in lieu of a meeting of stockholders if, in accordance with and subject to the conditions and restrictions set forth in the Certificate and these Bylaws (as amended from time to time), (i) record holders of at least 25% of the outstanding Common Stock of the Corporation have submitted written requests to the Secretary of the Corporation asking that the Board of Directors fix a record date to determine the stockholders entitled to deliver written consents for the action or actions proposed to be taken (the “Soliciting Stockholders”); (ii) such written requests include all of the required information with respect to such action or actions and with respect to such Soliciting Stockholder(s) and the beneficial owners (if any) on whose behalf such written requests are made; (iii) the Board of Directors fixes such a record date or has failed to do so within ten days after the Secretary certifies to the Board of Directors that he or she has received written requests from the requisite holders of Common Stock; (iv) written consents are solicited from all stockholders entitled to deliver a written consent by one or more of the Soliciting Stockholder(s), and the solicitation materials delivered by such Soliciting Stockholder(s) include a description

 

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of the action or actions proposed to be taken by written consent and, with respect to each person or entity directing such solicitation or on whose behalf such solicitation is made, a description of any material interest of such Soliciting Stockholder in the action or actions proposed to be taken by written consent, as well as any other required information; and (v) written consents setting forth the action or actions to be taken are signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and are delivered to the Corporation in the manner required by Section 228 of the DGCL. The holders of Common Stock of the Corporation may not act by written consent in lieu of a meeting of stockholders except (a) in accordance with the preceding sentence or (b) pursuant to a resolution adopted by the Board of Directors authorizing one or more actions to be taken by written consent. Any written consent to take action in lieu of a meeting of stockholders may be revoked prior to the effectiveness of the stockholder action or actions set forth in such written consent. References in this bylaw to a written consent shall be deemed to include a telegram, cablegram or other electronic transmission consenting to an action to be taken if such transmission complies with Section 228(d) of the DGCL.
(b) Each written request of a Soliciting Stockholder(s) asking that the Board of Directors fix a record date to determine the stockholders entitled to deliver written consents shall include the following: (i) the signature of the stockholder of record signing such written request and the date such written request was signed; (ii) the action or actions proposed to be taken by written consent and the reasons for seeking stockholder approval of such actions; and (iii) for each written request submitted by a person or entity other than a Solicited Stockholder, as to the stockholder signing such written request and the beneficial owner (if any) on whose behalf such written request is made (each, a “party”):
(1)    the name and address of such Soliciting Stockholder(s);
(2)    the class, series and number of shares of the Corporation that are owned beneficially and of record by such Soliciting Stockholder(s) (which information set forth in this clause shall be supplemented by such Soliciting Stockholder(s) not later than 10 days after the record date for determining the stockholders entitled to act by written consent to disclose such ownership as of such record date);
(3)    a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, warrants, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of the Soliciting Stockholder’s written request by, or on behalf of, such Soliciting Stockholder(s), the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such Soliciting Stockholder(s) with respect to shares of stock of the Corporation (which information set forth in this clause shall be supplemented by such Soliciting Stockholder(s) not later than 10 days after the record date for determining the stockholders entitled to act by written consent to disclose such ownership as of such record date);
(4)    any other information relating to each such Soliciting Stockholder(s) that would be required to be disclosed in a proxy statement or other filings required to be made in

 

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connection with solicitations of proxies for the proposal pursuant to Section 14 of the Exchange Act;
(5)    any material interest of such Soliciting Stockholder(s) in any of the actions to be taken by written consent;
(6)    if directors are to be elected by written consent, with respect to each person proposed to be elected by written consent: (i) all information relating to such person as would be required to be disclosed in solicitations of proxies for the election of such nominees as directors pursuant to Regulation 14A under the Exchange Act and such person’s written consent to serve as a director if elected; and (ii) a statement whether such person, if elected, intends to tender an irrevocable resignation consistent with the Corporation’s Principles of Corporate Governance; and
(7)    a statement whether or not any such Soliciting Stockholder(s) will deliver a proxy statement and form of proxy to all stockholders entitled to deliver a written consent (such statement hereinafter for purposes of this Section 2.12, a “Solicitation Statement”).
For purposes of this bylaw, “Solicited Stockholder” means any stockholder that has provided a written request in response to a solicitation made pursuant to, and in accordance with, Section 14(a) of the Exchange Act by way of a solicitation statement filed on Schedule 14A.
(c) For purposes of this bylaw and Certificate, Soliciting Stockholder(s) shall have fulfilled the requirement to solicit written consents from all stockholders entitled to deliver a written consent if they have undertaken all reasonable efforts to solicit written consents from all stockholders entitled to deliver a written consent.
(d) The Secretary shall not accept, and shall consider ineffective, a written request pursuant to Section 2.12(a)(i) asking that the Board of Directors fix a record date (i) that does not comply with the preceding provisions of this bylaw; (ii) that relates to an item of business that is not a proper subject for stockholder action under applicable law; (iii) if such written request is delivered between the time beginning on the 31st day after the earliest date of signature on a written request that has been delivered to the Secretary relating to an identical or substantially similar item (hereinafter for purposes of this Section 2.12, a “Similar Item”) and ending on the one-year anniversary of such earliest date; (iv) if a Similar Item will be submitted for stockholder approval at any stockholder meeting to be held on or before the 120th day after the Secretary receives such written request; or (v) if a Similar Item has been presented at the most recent annual meeting or at any special meeting held within one year prior to the receipt by the Secretary of such written request. The Board of Directors may fix a record date to determine the stockholders entitled to deliver written requests, whether or not the Corporation has already received one or more written requests pursuant to Section 2.12(a) of this bylaw. A written request may be revoked prior to the receipt of written requests from the holders of 25% of the outstanding Common Stock of the Corporation.
(e) In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than 10 days after the date upon which

 

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the resolution fixing the record date is adopted by the Board of Directors. The Board of Directors shall promptly, but in all events within 10 days after the Secretary certifies to the Board of Directors that the Secretary has received the requisite number of valid written requests in accordance with the foregoing provisions of this bylaw, adopt a resolution fixing the record date (unless a record date has previously been fixed by the Board of Directors pursuant to the first sentence of this Section 2.12(e)). If no record date has been fixed by the Board of Directors within such 10-day period, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by applicable law, shall be the first date on which a signed written consent setting forth the action proposed to be taken is delivered to the Corporation in the manner permitted by Section 228 of the DGCL. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by applicable law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.
(f) In addition to the other requirements set forth in this bylaw and the Certificate, no written consent with respect to one or more stockholder actions shall be valid or effective if the stockholders who delivered written requests asking the Board of Directors to fix a record date do not comply with (i) clause (iv) of Article ELEVENTH of the Certificate and (ii) the supplemental disclosure requirements set forth in Sections 2.12(b)(2) and (3) of this bylaw.
(g) In the event of the delivery, in the manner provided by Section 228 of the DGCL, to the Corporation of the requisite written consent or consents to take corporate action after giving effect to any related revocation or revocations, the Corporation shall engage independent inspector or inspectors of elections for the purpose of promptly performing a ministerial review of the validity of the consents and revocations. For the purpose of permitting the inspector or inspectors to perform such review, no action by written consent without a meeting shall be effective until such date as the independent inspector or inspectors certify to the Corporation that the consents delivered to the Corporation in accordance with applicable law represent at least the minimum number of votes that would be necessary to take the corporate action. The action by written consent will take effect as of the date and time of the certification of the written consents and will not relate back to the date the written consents were delivered to the Corporation. In conducting the review required by this paragraph, the independent inspector or inspectors may, at the expense of the Corporation, retain legal counsel and any other necessary or appropriate professional advisors and such other personnel as they may deem necessary or appropriate to assist them and shall be fully protected in relying in good faith upon the opinion of such counsel or advisors. Nothing contained in this bylaw shall in any way be construed to suggest or imply that the Board of Directors or any stockholder shall not be entitled to contest the validity of any consent or revocation thereof, whether before or after such certification by the independent inspector or inspectors, or to take any other action (including, without limitation, the commencement, prosecution or defense of any litigation with respect thereto, and the seeking of injunctive relief in such litigation). If after such review the independent inspector or inspectors shall determine that the written consent or consents are valid and that the action specified therein has been validly authorized, that fact shall forthwith be certified on the records of the Corporation kept for the purpose of recording the proceedings of meetings of stockholders, and the written consent or consents shall be filed in such records.

 

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(h) Prompt notice of the taking of corporate action without a meeting by less than unanimous written consent shall be given to those stockholders entitled thereto, in accordance with Section 228(e) of the DGCL and other applicable law.
(i) The Board of Directors shall determine in good faith whether the requirements set forth in this bylaw and the Certificate have been satisfied. If the Board of Directors shall determine that any written request asking the Board of Directors to fix a record date to take action by written consent was not properly made in accordance with this bylaw or the Certificate, or if the Board of Directors shall determine that the stockholder or stockholders seeking to take such action do not otherwise comply with this bylaw and the Certificate, then the Board of Directors shall not be required to fix a record date and any such purported action by written consent shall be null and void to the fullest extent permitted by applicable law. In addition to the requirements of this bylaw and the Certificate with respect to stockholders seeking to take an action by written consent, any stockholder of record seeking to have the stockholders authorize or take corporate action by written consent shall comply with all requirements of applicable law, including all requirements of the Exchange Act, with respect to such action.
Section 2.14.    List of Stockholders. The Secretary of the Corporation shall, in the manner provided by law, prepare and make (or cause to be prepared and made) a complete list of stockholders entitled to vote at any meeting of stockholders, provided, however, that if the record date for determining the stockholders entitled to vote is less than 10 days before the meeting date, the list shall reflect the stockholders entitled to vote as of the 10th day before the meeting date, arranged in alphabetical order and showing the address of, and the number of shares registered in the name of, each stockholder. Nothing contained in this section shall require the Corporation to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting in the manner provided by law. If a meeting is to be held at a place, then a list of the stockholders entitled to vote at the meeting shall also be produced and kept at the time and place of the meeting during the duration thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list will also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list will be provided with the notice of the meeting.
The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders or to vote in person or by proxy at any meeting of stockholders.
Section 2.15.    Inspectors of Election. In advance of any meeting of stockholders, the Corporation may, and to the extent required by law shall, appoint Inspectors of Election to act at such meeting or at any adjournment or postponement thereof. The Corporation may designate one or more alternate inspectors to replace any inspector who fails to act. If such inspectors, or alternate inspectors, are not so appointed or fail or refuse to act, the chairperson of any such meeting may (and, to the extent required by law, shall) make such an appointment. The number of Inspectors of Election shall be one (1) or three (3). If there are three Inspectors of Election, the decision, act or certificate of a majority shall be effective and shall represent the decision, act or certificate of all.

 

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No such inspector need be a stockholder of the Corporation. Each inspector, before entering upon the discharge of the duties of inspector, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability.
The Inspectors of Election shall have such duties and responsibilities as required under Section 231 of the DGCL (or any successor provision thereof).
ARTICLE III
DIRECTORS
Section 3.01.    Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
Section 3.02.    Number. Except as otherwise fixed pursuant to the provisions of Section 2 of Article Fourth of the Certificate in connection with rights to elect additional directors under specified circumstances which may be granted to the holders of any class or series of Preferred Stock, the exact number of directors of the Corporation shall be fixed from time to time by a resolution duly adopted by the Board of Directors.
Section 3.03.    Lead Independent Director. If at any time the Chairperson of the Board of Directors is not independent as that term is defined under the then applicable rules and regulations of each national securities exchange upon which shares of the stock of the Corporation are listed for trading and of the SEC, the independent directors may designate from among them a Lead Independent Director having the duties and responsibilities set forth in the applicable rules of each such national securities exchange and as otherwise determined by the Board of Directors from time to time.
Section 3.04.    Election and Term of Office. Except as provided in Section 3.07 hereof and subject to the right to elect additional directors under specified circumstances which may be granted, pursuant to the provisions of Section 2 of Article Fourth of the Certificate, to the holders of any class or series of Preferred Stock, directors shall be elected by the stockholders of the Corporation for a term expiring at the annual meeting of stockholders following their election. A nominee for director shall be elected to the Board of Directors if the votes cast for such nominee’s election exceed the votes cast against such nominee’s election; provided, however, that directors shall be elected by a plurality of the votes cast at any meeting of stockholders for which (a) the Secretary of the Corporation receives a notice that a stockholder has nominated a person for election to the Board of Directors in compliance with Section 2.08 or Section 2.09 and (b) such nomination has not been withdrawn by such stockholder on or before the 10th day before the Corporation first mails its notice of meeting for such meeting to the stockholders. If directors are to be elected by a plurality of the votes cast, stockholders shall not be permitted to vote against a nominee.
Section 3.05.    Resignations. Any director may resign at any time by submitting a resignation to the Corporation in writing or by electronic transmission. Such resignation shall take effect at the time of its receipt by the Corporation unless such resignation is effective at a future time or upon the happening of a future event or events in which case it shall be effective at such

 

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time or upon the happening of such event or events. Unless the resignation provides otherwise, the acceptance of a resignation shall not be required to make it effective.
Section 3.06.    Removal. Subject to the right to elect directors under specified circumstances which may be granted pursuant to Section 2 of Article Fourth of the Certificate to the holders of any class or series of Preferred Stock, any director may be removed from office with or without cause.
Section 3.07.    Vacancies and Additional Directorships. Except as otherwise provided pursuant to Section 2 of Article Fourth of the Certificate in connection with rights to elect additional directors under specified circumstances which may be granted to the holders of any class or series of Preferred Stock, newly created directorships resulting from any increase in the number of directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled solely by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors. Any director elected in accordance with the preceding sentence shall hold office for a term that shall end at the first annual meeting following his or her election and shall remain in office until such director’s successor shall have been elected and qualified or until such director’s death, resignation or removal, whichever comes first. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
Section 3.08.    Meetings. Promptly after, and on the same day as, each annual election of directors by the stockholders, the Board of Directors shall, if a quorum be present, meet in a meeting (the “Organizational Meeting”) to elect a Chairperson of the Board of Directors, elect a Lead Independent Director, if any, appoint members of the standing committees of the Board of Directors, elect officers of the Corporation and conduct other business as appropriate. Additional notice of such meeting need not be given if such meeting is conducted promptly after the annual meeting to elect directors and if the meeting is held in the same location where the election of directors was conducted. Regular meetings of the Board of Directors shall be held at such times and places as the Board of Directors shall determine and as shall be publicized among all directors.
Directors may participate in regular or special meetings of the Board of Directors or any committee designated by the Board of Directors by means of conference telephone or other communications equipment by means of which all other persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
A special meeting of the Board of Directors may be called by the Chairperson or the Lead Independent Director of the Board of Directors, the Chief Executive Officer or a majority of the directors then in office and shall be held at such place, if any, on such date and at such time as the person or persons calling such meeting may fix.
Section 3.09.    Notice of Meetings. A notice of each regular meeting of the Board of Directors shall not be required. Notice of special meetings shall be either (a) mailed to each director at least 5 days before the meeting, addressed to the director’s usual place of business or to his or her residence address or to an address specifically designated by the director or (b) given by telephone, telegraph, telex, facsimile or electronic transmission not less than 24 hours before the

 

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meeting. The notice need not specify the place of the meeting (if the meeting is to be held at the Corporation’s principal executive office) nor the purpose of the meeting, unless otherwise required by law. Unless otherwise indicated in the notice of a meeting, any and all business may be transacted at a meeting of the Board of Directors. Notice of any meeting of the Board of Directors may be waived by a director in writing, or by electronic transmission, at any time before or after the meeting (and whether or not stating the business transacted at, or the purpose of, any meeting), and such a waiver shall be deemed to be equivalent to notice, and attendance of any director at a meeting shall constitute a waiver of notice of such meeting, except when the director attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.
Section 3.10.    Action without Meeting. Unless otherwise restricted by the Certificate, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing, or by electronic transmission and such writing or writings or electronic transmission filed with the minutes of the proceedings of the Board of Directors or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section 3.11.    Quorum. At all meetings of the Board of Directors, directors constituting a majority of the total number of directors shall constitute a quorum for the transaction of business. In the absence of a quorum, the directors present, by majority vote and without notice or waiver thereof, may adjourn the meeting to another date, place, if any, and time. At any reconvened meeting following such an adjournment at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally notified.
Section 3.12.    Votes Required. Except as otherwise required by applicable law, the Certificate or these Bylaws, the vote of a majority of the directors present at a meeting duly held at which a quorum is present shall be sufficient to pass any measure.
Section 3.13.    Place and Conduct of Meetings. Other than the Organizational Meeting, each meeting of the Board of Directors shall be held at the location determined by the person or persons calling such meeting. At any meeting of the Board of Directors, business shall be transacted in such order and manner as the Board of Directors may from time to time determine. The chairperson of any regular or special meeting shall be the Chairperson of the Board of Directors, or in the absence of the Chairperson a person designated by the Board of Directors. The Secretary, or in the absence of the Secretary a person designated by the chairperson of the meeting, shall act as secretary of the meeting.
Section 3.14.    Fees and Compensation. Directors shall be paid such compensation as may be fixed from time to time by resolutions of the Board of Directors. Compensation may be in the form of an annual retainer fee or a fee for attendance at meetings, or both, or in such other form or on such basis as the resolutions of the Board of Directors shall fix. Directors shall be reimbursed for all reasonable expenses incurred by them in attending meetings of the Board of Directors and committees appointed by the Board of Directors and in performing compensable extraordinary services. Nothing contained herein shall be construed to preclude any director from serving the

 

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Corporation in any other capacity, such as an officer, agent, employee, consultant or otherwise, and receiving compensation therefor.
Section 3.15.    Compensation and Voting Agreements. No person shall be eligible for nomination or service as a director if he or she is or becomes a party to (a) any undisclosed compensatory, payment or other financial agreement, arrangement or understanding with any person or entity in connection with his or her nomination, (b) any compensatory, payment or other financial agreement, arrangement or understanding with any person or entity other than the Corporation in connection with his or her service or action as a director of the Corporation, or (c) any agreement, arrangement or understanding with any person or entity as to how the director would vote or act on any issue or question as a director. Any compensatory, payment or other financial agreement, arrangement or understanding with any person or entity in connection with such person’s nomination shall be limited to reimbursement of reasonable expenses incurred by the nominee in connection with his or her nomination that are fully disclosed in the Corporation’s proxy statement for the meeting of shareholders at which such person’s nomination is to be considered.
Section 3.16.    Committees of the Board of Directors. The Board of Directors may from time to time designate committees of the Board of Directors, with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the Board of Directors and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of any committee and any alternate member in his or her place, the member or members of the committee present at the meeting and not disqualified from voting, whether or not he or she or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member.
Section 3.17.    Meetings of Committees. Each committee of the Board of Directors shall fix its own rules of procedure and shall act in accordance therewith, except as otherwise provided herein or required by applicable law and any resolutions of the Board of Directors governing such committee. A majority of the members of each committee shall constitute a quorum thereof, except that when a committee consists of one or two members then one member shall constitute a quorum.
Section 3.18.    Subcommittees. Unless otherwise provided in the Certificate or the resolutions of the Board of Directors establishing a committee, or in the charter of a committee, a committee may create one or more subcommittees, which consist of one or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee.
ARTICLE IV
OFFICERS
Section 4.01.    Designation, Election and Term of Office. The Corporation shall have a Chairperson of the Board of Directors, a Chief Executive Officer, a Secretary and a Treasurer and such other officers as the Board of Directors deems appropriate, including to the extent deemed appropriate by the Board of Directors, a President, a Chief Financial Officer, a Chief Legal Officer and one or more Executive Vice Presidents, Senior Vice Presidents and Vice Presidents. These

 

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corporate officers shall be elected annually by the Board of Directors at the Organizational Meeting immediately following the annual meeting of stockholders and each such corporate officer shall hold office until a successor is elected or until his or her earlier resignation, death or removal. Any vacancy in any of the above corporate offices may be filled for an unexpired portion of the term by the Board of Directors at any meeting thereof. The Chief Executive Officer may, by a writing filed with the Secretary, designate titles for employees and agents, as, from time to time, may appear necessary or advisable in the conduct of the affairs of the Corporation and, in the same manner, terminate or change such titles.
Section 4.02.    Chairperson of the Board of Directors. The Board of Directors shall designate the Chairperson of the Board of Directors from among its members. The Chairperson of the Board of Directors shall preside at all meetings of the Board of Directors, and shall perform such other duties as shall be delegated to him or her by the Board of Directors.
Section 4.03.    Chief Executive Officer. Subject to the direction of the Board of Directors, the Chief Executive Officer shall be responsible for the general supervision, direction and control of the business and affairs of the Corporation.
Section 4.04.    President. The President shall perform such duties and have such responsibilities as may from time to time be delegated or assigned to him or her by the Board of Directors or the Chief Executive Officer.
Section 4.05.    Chief Financial Officer. The Chief Financial Officer of the Corporation shall be responsible to the Chief Executive Officer for the management and supervision of all financial matters and to provide for the financial stability of the Corporation. The Chief Financial Officer shall also perform such additional duties as may be assigned to the Chief Financial Officer from time to time by the Board of Directors or the Chief Executive Officer.
Section 4.06.    Chief Legal Officer. The Chief Legal Officer of the Corporation shall be the General Counsel who shall be responsible to the Chief Executive Officer for the management and supervision of all legal matters. The Chief Legal Officer shall also perform such additional duties as may be assigned to the Chief Legal Officer from time to time by the Board of Directors or the Chief Executive Officer.
Section 4.07.    Secretary. The Secretary shall keep the minutes of the meetings of the stockholders, the Board of Directors and all committee meetings. The Secretary shall be the custodian of the corporate seal and shall have the power to affix it to all documents that the Secretary is authorized by law or the Board of Directors to sign and seal. The Secretary also shall perform such other duties as may be assigned to the Secretary from time to time by the Board of Directors, the Chief Executive Officer or the General Counsel.
Section 4.08.    Treasurer. The Treasurer shall be accountable to the Chief Financial Officer, and shall perform such duties as may be assigned to the Treasurer from time to time by the Board of Directors, the Chief Executive Officer, the Chief Financial Officer or the Senior Vice President, Finance.

 

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Section 4.09.    Executive Vice Presidents, Senior Vice Presidents and Vice Presidents. Executive vice presidents, senior vice presidents, vice presidents and other officers of the Corporation that are elected by the Board of Directors shall perform such duties as may be assigned to them from time to time by the Chief Executive Officer.
Section 4.10.    Appointed Officers. The Board of Directors or the Chief Executive Officer may appoint one or more Corporate Staff Vice Presidents, officers of groups or divisions or assistant secretaries, assistant treasurers and such other assistant officers as the business of the Corporation may require, each of whom shall hold office for such period, have such authority and perform such duties as may be specified from time to time by the Board of Directors or the Chief Executive Officer.
Section 4.11.    Absence or Disability of an Officer. In the case of the absence or disability of an officer of the Corporation, the Board of Directors, or any officer designated by it, or the Chief Executive Officer may, for the time of the absence or disability, delegate such officer’s duties and powers to any other officer of the Corporation.
Section 4.12.    Officers Holding Two or More Offices. The same person may hold any two or more of the above-mentioned offices except that the Secretary shall not be the same person as the Chief Executive Officer or the President.
Section 4.13.    Compensation. The Board of Directors shall have the power to fix the compensation of all officers and employees of the Corporation and to delegate such power to a committee of the Board of Directors or to management.
Section 4.14.    Resignations. Any officer may resign at any time by submitting a resignation to the Corporation in writing or by electronic transmission. Any such resignation shall take effect at the time of receipt by the Corporation unless such resignation is effective at a future time or upon the happening of a future event or events, in which case it shall be effective at such time or upon the happening of such event or events. Unless the resignation provides otherwise, the acceptance of a resignation shall not be required to make it effective.
Section 4.15.    Removal. The Board of Directors may remove any elected officer of the Corporation, with or without cause. Any appointed officer of the Corporation may be removed, with or without cause, by the Chief Executive Officer or the Board of Directors.
Section 4.16.    Delegation of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officer, employee or agent, notwithstanding any provisions hereof.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS
Section 5.01.    Right to Indemnification. Each person who was or is made a party, or is threatened to be made a party, to any pending or threatened action, suit, or proceeding, whether

 

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civil, criminal, administrative, or investigative (hereinafter a “proceeding”), by reason of the fact that (a) he or she is or was a director, officer, employee or agent of the Corporation or (b) he or she is or was serving at the request of the Board of Directors or an executive officer (as such term is defined in Section 16 of the Exchange Act) of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (any person described in clause (a) or (b) of this sentence, an “indemnitee”), shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), or by other applicable law as then in effect, against all expense, liability, and loss (including attorneys’ fees, costs and charges, judgments, fines, ERISA excise taxes or penalties, penalties, and amounts paid or to be paid in settlement) actually and reasonably incurred or suffered by such indemnitee in connection therewith. The right to indemnification provided by this Article V shall apply whether or not the basis of such proceeding is alleged action in an official capacity as such a director, officer, employee or agent or in any other capacity while serving as such a director, officer, employee or agent. Notwithstanding anything in this Article V to the contrary, except as provided in Section 5.03 with respect to proceedings to enforce rights to indemnification or advancement, the Corporation shall indemnify and/or provide advancement of expenses to an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Corporation.
Section 5.02.    Advancement of Expenses. The right to indemnification conferred in Section 5.01 shall include the right to have the expenses (including attorneys’ fees) incurred in defending or preparing for any such proceeding in advance of its final disposition paid by the Corporation; provided, however, that if the DGCL requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is to be rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking containing such terms and conditions, including the requirement of security, as the Board of Directors deems appropriate (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that such indemnitee is not entitled to be indemnified for such expenses under this Article V or otherwise. Except as provided in Section 5.03, and notwithstanding the foregoing, the Corporation shall not be obligated to advance fees and expenses to an indemnitee in connection with a proceeding against such person that is instituted by the Corporation pursuant to an authorization from the Board of Directors, a committee of the Board of Directors or an officer or employee of the Corporation.
Section 5.03.    Right of Indemnitee to Bring Suit. If a claim under Section 5.01 or 5.02 is not paid in full by the Corporation within 60 days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses under Section 5.02, in which case the applicable period shall be 30 days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If the indemnitee is successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement

 

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of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (a) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (b) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article V or otherwise shall be on the Corporation. In addition to the foregoing rights of an indemnitee, if an indemnitee becomes a party to, or is involved in, any proceeding initiated by the Corporation or any governmental or regulatory body to require the indemnitee to repay an advancement of expenses from the Corporation or to obtain a determination from a judicial or regulatory body that indemnification is prohibited by applicable law, the Corporation shall, to the fullest extent permitted by law, indemnify the indemnitee for the expenses the indemnitee incurs in such suit and advance expenses to the indemnitee prior to the final disposition of such suit.
Section 5.04.    Nonexclusivity of Rights. (a) The rights to indemnification and to the advancement of expenses conferred in this Article V shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provisions of the Certificate, Bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. (b) The Corporation may maintain insurance, at its expense, to protect itself and any past or present director, officer, employee or agent of the Corporation or any person who is or was serving at the request of the Board of Directors or an executive officer (as that term is defined in Section 16 of the Exchange Act) of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL. The Corporation may enter into contracts with any indemnitee in furtherance of the provisions of this Article and may create a trust fund, grant a security interest or use other means (including, without limitation, a letter of credit) to ensure the payment of such amounts as may be necessary to effect indemnification as provided in this Article. (c) The Corporation may without reference to Sections 5.01 through 5.04 (a) and (b) hereof, pay the expenses, including attorneys’ fees, incurred by any director, officer, employee or agent of the Corporation who is subpoenaed, interviewed or deposed as a witness or otherwise incurs expenses in connection with any civil, arbitration, criminal or administrative proceeding or governmental or internal investigation to which

 

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the Corporation is a party, target, or potentially a party or target, or of any such individual who appears as a witness at any trial, proceeding or hearing to which the Corporation is a party, if the Corporation determines that such payments will benefit the Corporation and if, at the time such expenses are incurred by such individual and paid by the Corporation, such individual is not a party, and is not threatened to be made a party, to such proceeding or investigation.
Section 5.05.    Indemnification of Employees and Agents of the Corporation. The Corporation may grant additional rights to indemnification and to the advancement of expenses to any director, officer, employee or agent of the Corporation to the fullest extent permitted by law. The Corporation may, by action of its Board of Directors, authorize one or more officers to grant additional rights for indemnification or the advancement of expenses to employees and agents of the Corporation on such terms and conditions as such officers deem appropriate.
Section 5.06.    Nature of Rights. The rights conferred upon indemnitees in this Article V shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the indemnitee’s heirs, executors and administrators. Any amendment, alteration or repeal of this Article V or any amendment, alteration or repeal of the DGCL or any other applicable laws that adversely affects any right of an indemnitee or its successors shall be prospective only and shall not limit, eliminate or impair any such right with respect to any proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment or repeal.
ARTICLE VI
STOCK
Section 6.01.    Shares of Stock. The Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of the capital stock of the Corporation shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation (or, if such certificate has been lost, stolen or destroyed, the procedures required by the Corporation in Section 6.07 shall have been followed). To the extent shares of capital stock are represented by certificates, such certificates shall be signed by the Chairperson of the Board of Directors, the President or a vice president, together with the Secretary or assistant secretary, or the Treasurer or assistant treasurer. Any or all of the signatures on any certificate may be facsimile. A stockholder that holds a certificate representing shares of any class or series of the capital stock of the Corporation for which the Board of Directors has authorized uncertificated shares may request that the Corporation cancel such certificate and issue such shares in an uncertificated form, provided that the Corporation shall not be obligated to issue any uncertificated shares of capital stock to such stockholder until such certificate representing such shares of capital stock shall have been surrendered to the Corporation (or, if such certificate has been lost, stolen or destroyed, the procedures required by the Corporation in Section 6.07 shall have been followed).
With respect to certificated shares of capital stock, the Secretary or an assistant secretary of the Corporation or the transfer agent thereof shall mark every certificate exchanged, returned or surrendered to the Corporation with “Cancelled” and the date of cancellation.

 

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In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue. The Corporation shall not have power to issue a certificate in bearer form.
If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative, participating, optional, or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock, provided that, except as otherwise provided in Section 6.04 or Section 202 of the DGCL, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock, a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional, or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. In the case of uncertificated shares, within a reasonable time after the issuance or transfer of uncertificated stock, the Corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to this Section 6.01, Sections 6.02(b), 6.04 and 6.05 of these Bylaws and Sections 156, 202(a) and 218(a) of the DGCL, or with respect to this section and Section 151 of the DGCL a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
Section 6.02.    Issuance of Stock; Lawful Consideration.
(a)    Shares of stock may be issued for such consideration, having a value not less than the par value thereof, as determined from time to time by the Board of Directors. Treasury shares may be disposed of by the Corporation for such consideration as may be determined from time to time by the Board of Directors. The consideration for subscriptions to, or the purchase of, the capital stock to be issued by the Corporation shall be paid in such form and in such manner as the Board of Directors shall determine. The Board of Directors may authorize capital stock to be issued for consideration consisting of cash, any tangible or intangible property or any benefit to the Corporation, or any combination thereof. In the absence of actual fraud in the transaction, the judgment of the Board of Directors as to the value of such consideration shall be conclusive. The capital stock so issued shall be deemed to be fully paid and nonassessable stock upon receipt by the Corporation of such consideration; provided, however, nothing contained herein shall prevent the Board of Directors from issuing partly paid shares in accordance with Section 6.02(b) and Section 156 of the DGCL.
(b)    The Corporation may issue the whole or any part of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor. Upon the face or back of each stock certificate issued to represent any such partly paid shares, or upon the books and records

 

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of the Corporation in the case of uncertificated partly paid shares, the total amount of the consideration to be paid therefor and the amount paid thereon shall be stated. Upon the declaration of any dividend on fully paid shares, the Corporation shall declare a dividend upon partly paid shares of the same class, but only upon the basis of the percentage of the consideration actually paid thereon.
Section 6.03.    Transfer Agents and Registrars. The Corporation may have one or more transfer agents and one or more registrars of its stock whose respective duties the Board of Directors or the Secretary may, from time to time, define. No certificate of stock shall be valid until countersigned by a transfer agent, if the Corporation has a transfer agent, or until registered by a registrar, if the Corporation has a registrar. The duties of transfer agent and registrar may be combined.
Section 6.04.    Restrictions on Transfer and Ownership of Securities. A written restriction or restrictions on the transfer or registration of transfer of a security of the Corporation, or on the amount of the Corporation’s securities that may be owned by any person or group of persons, if permitted by Section 202 of the DGCL and noted conspicuously on the certificate or certificates representing the security or securities so restricted or, in the case of uncertificated shares, contained in the notice or notices sent pursuant to Section 6.02 of these Bylaws and Section 151(f) of the DGCL, may be enforced against the holder of the restricted security or securities or any successor or transferee of the holder including an executor, administrator, trustee, guardian or other fiduciary entrusted with like responsibility for the person or estate of the holder. Unless noted conspicuously on the certificate or certificates representing the security or securities so restricted or, in the case of uncertificated shares, contained in the notice or notices sent pursuant to Section 6.02 of these Bylaws and Sections 151(f) of the DGCL, a restriction, even though permitted by Section 202 of the DGCL, is ineffective except against a person with actual knowledge of the restriction.
Section 6.05.    Voting Trusts and Voting Agreements. One stockholder or two or more stockholders may by agreement in writing deposit capital stock of the Corporation of an original issue with or transfer capital stock of the Corporation to any person or persons, or entity or entities authorized to act as trustee, for the purpose of vesting in such person or persons, entity or entities, who may be designated voting trustee, or voting trustees, the right to vote thereon for any period of time determined by such agreement, upon the terms and conditions stated in such agreement. The agreement may contain any other lawful provisions not inconsistent with such purpose. After the filing of a copy of the agreement in the registered office of the Corporation in the State of Delaware, which copy shall be open to the inspection of any stockholder of the Corporation or any beneficiary of the trust under the agreement daily during business hours, certificates of stock or uncertificated stock shall be issued to the voting trustee or trustees to represent any stock of an original issue so deposited with such voting trustee or trustees, and any certificates of stock or uncertificated stock so transferred to the voting trustee or trustees shall be surrendered and cancelled and new certificates or uncertificated stock shall be issued therefor to the voting trustee or trustees. In the certificate so issued, if any, it shall be stated that it is issued pursuant to such agreement, and that fact shall also be stated in the stock ledger of the Corporation. The voting trustee or trustees may vote the stock so issued or transferred during the period specified in the agreement. Stock

 

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standing in the name of the voting trustee or trustees may be voted either in person or by proxy, and in voting the stock, the voting trustee or trustees shall incur no responsibility as stockholder, trustee or otherwise, except for their own individual malfeasance. In any case where two or more persons or entities are designated as voting trustees, and the right and method of voting any stock standing in their names at any meeting of the Corporation are not fixed by the agreement appointing the trustees, the right to vote the stock and the manner of voting it at the meeting shall be determined by a majority of the trustees, or if they be equally divided as to the right and manner of voting the stock in any particular case, the vote of the stock in such case shall be divided equally among the trustees.
Section 6.06.    Transfer of Shares. Registration of transfer of shares of stock of the Corporation may be effected on the books of the Corporation in the following manner:
(a)    Certificated Shares. In the case of certificated shares, upon authorization by the registered holder of share certificates representing such shares of stock, or by his attorney authorized by a power of attorney duly executed and filed with the Secretary or with a designated transfer agent or transfer clerk, and upon surrender to the Corporation or any transfer agent of the corporation of the certificate being transferred, which certificate shall be properly and fully endorsed or accompanied by a duly executed stock transfer power, and otherwise in proper form for transfer, and the payment of all transfer taxes thereon. Whenever a certificate is endorsed by or accompanied by a stock power executed by someone other than the person or persons named in the certificate, evidence of authority to transfer shall also be submitted with the certificate. Notwithstanding the foregoing, such surrender, proper form for transfer or payment of taxes shall not be required in any case in which the officers of the Corporation determine to waive such requirement.
(b)    Uncertificated Shares. In the case of uncertificated shares of stock, upon receipt of proper and duly executed transfer instructions from the registered holder of such shares, or by his attorney authorized by a power of attorney duly executed and filed with the Secretary or with a designated transfer agent or transfer clerk, the payment of all transfer taxes thereon, and compliance with appropriate procedures for transferring shares in uncertificated form. Whenever such transfer instructions are executed by someone other than the person or persons named in the books of the Corporation as the holder thereof, evidence of authority to transfer shall also be submitted with such transfer instructions. Notwithstanding the foregoing, such payment of taxes or compliance shall not be required in any case in which the officers of the Corporation determine to waive such requirement.
No transfer of shares of capital stock shall be made on the books of this Corporation if such transfer is in violation of a lawful restriction noted conspicuously on the certificate. No transfer of shares of capital stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing from and to whom transferred.
Section 6.07.    Lost, Stolen or Destroyed Share Certificates. The Corporation may issue a new certificate of stock or uncertificated shares in place of any certificate previously issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the Corporation a

 

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bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.
Section 6.08.    Stock Ledgers. Original or duplicate stock ledgers, containing the names and addresses of the stockholders of the Corporation and the number of shares of each class of stock held by them, shall be kept at the principal executive office of the Corporation or at the office of its transfer agent or registrar.
Section 6.09.    Record Dates. In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board of Directors may, except as otherwise required by law, fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If the Board of Directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for determining the stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determining the stockholders entitled to vote at such adjourned meeting in accordance with the foregoing provisions of this Section 6.09 at the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action (other than stockholder action by written consent) the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall not be more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
ARTICLE VII
SUNDRY PROVISIONS
Section 7.01.    Fiscal Year. The fiscal year of the Corporation shall end on the 31st day of December of each year.
Section 7.02.    Seal. The seal of the Corporation shall bear the name of the Corporation,

 

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the year of incorporation and the word “Delaware.”
Section 7.03.    Securities in Other Entities. Any shares of stock or other interests in other corporations, associations or entities, which may from time to time be held by the Corporation, may be represented and voted in person or by proxy, at any of the stockholders’, or other interestholders’, as applicable, meetings thereof by the Chief Executive Officer or the designee of the Chief Executive Officer and the Chief Executive Officer or the designee thereof may otherwise act on behalf of the Corporation with respect to such shares or interests. The Board of Directors, however, may by resolution appoint some other person or persons to vote, or otherwise act on behalf of the Corporation with respect to such shares or interests, in which case such person or persons shall be entitled to vote, or act in behalf of the Corporation with respect to, such shares or interests.
Section 7.04.    Amendments. These Bylaws may be adopted, repealed, rescinded, altered or amended only as provided in Articles Fifth and Sixth of the Certificate.
Section 7.05.    Form of Records. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device, or method provided that the records so kept can be converted into clearly legible paper form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records under the DGCL.
Section 7.06.    Forum Selection. Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders (including any beneficial owner of stock of the Corporation), (c) any action asserting a claim arising pursuant to any provision of the DGCL, the Corporation’s Restated Certificate of Incorporation or these Bylaws, or (d) any action asserting a claim governed by the internal affairs doctrine shall be the Delaware Court of Chancery, to the fullest extent permitted by law; provided however, that, to the extent a stockholder (including a beneficial owner of stock of the Corporation) seeks to bring a state law claim otherwise covered by this paragraph as a pendent claim to a federal claim over which the Delaware Court of Chancery does not have subject matter jurisdiction, such claim or cause of action shall be brought solely and exclusively in the United States District Court for the State of Delaware, which shall be the sole and exclusive forum to bring any pendent state law claim covered by this section. As with all provisions of these Bylaws, any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this section.
As amended and restated, December 4, 2015.

 

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Macy’s Inc. [ $M ] 3.450% SENIOR NOTES DUE 2021

 

Exhibit 1.1

MACY’S RETAIL HOLDINGS, INC., COMPANY

MACY’S, INC., GUARANTOR

3.450% SENIOR NOTES DUE 2021

Underwriting Agreement

December 7, 2015

Credit Suisse Securities (USA) LLC

J.P. Morgan Securities LLC

Merrill Lynch, Pierce, Fenner &
Smith

                     Incorporated,

as Representatives of the several
Underwriters

c/o Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, NY 10010-3629

J.P. Morgan Securities LLC
383 Madison Avenue
New York, NY 10179

Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, NY 10036

Ladies and Gentlemen:

Macy’s Retail Holdings, Inc., a New York corporation (the
Company”), proposes, subject to the terms and conditions stated herein,
to issue and sell to you (the “Underwriters”) an aggregate of
$500,000,000.00 principal amount of its 3.450% Senior Notes due 2021 (the “Notes”)
with the guarantee (the “Guarantee”) endorsed thereon of Macy’s, Inc., a
Delaware corporation (the “Guarantor”).

1.         Each of the Company and the Guarantor represents and warrants to,
and agrees with, each of the Underwriters that:

(a)
A registration statement (No. 333-208285), including a
prospectus, relating to certain of the Company’s unsecured debt securities
registered under said registration statement (the “Registered Securities”),
as amended, has been filed with the Securities and Exchange Commission (“Commission”)
and has become effective.  “Registration Statement” as of any time means
such registration statement in the form then filed with the Commission,
including any amendment thereto, any document incorporated by reference therein
and any information in a prospectus or prospectus supplement deemed or
retroactively deemed to be a part thereof pursuant to Rule 430B (“Rule 430B”)
or 430C (“Rule 430C”) under the Securities Act of 1933, as amended (“Act”)
that has not been superseded or modified.  “Registration Statement” without
reference to a time means the Registration Statement, including all amendments
thereto, as of the time of the first contract of sale for the Notes, which time
shall be considered the “Effective Date” of the Registration Statement relating
to the Notes.  For purposes of this definition, information contained in a form
of prospectus or prospectus supplement that is deemed retroactively to be a
part of the Registration Statement pursuant to Rule 430B shall be considered to
be included in the Registration Statement as of the time specified in Rule
430B.

Statutory Prospectus” as of any time means the
prospectus relating to the Notes that is included in the Registration Statement
immediately prior to that time, including any document incorporated by
reference therein and any basic prospectus or prospectus supplement deemed to
be a part thereof pursuant to Rule 430B or 430C that has not been superseded or
modified.  For purposes of this definition, information contained in a form of
prospectus (including a prospectus supplement) that is deemed retroactively to
be a part of the Registration Statement pursuant to Rule 430B shall be
considered to be included in the Statutory Prospectus only as of the actual
time that form of prospectus (including a prospectus supplement) is filed with
the Commission pursuant to Rule 424(b) (“Rule 424(b)”) under the Act and
not retroactively.  “Prospectus” means the Statutory Prospectus that
discloses the public offering price and other final terms of the Notes and
otherwise satisfies Section 10(a) of the Act.

Issuer Free Writing Prospectus” means any “issuer
free writing prospectus,” as defined in Rule 433 (“Rule 433”) under the
Act, relating to the Notes in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g).  “General Use Issuer Free Writing
Prospectus
” means any Issuer Free Writing Prospectus that is intended for
general distribution to prospective investors, as evidenced by its being listed
in Schedule B to this Agreement.  “Limited Use Issuer Free Writing
Prospectus
” means any Issuer Free Writing Prospectus that is not a General
Use Issuer Free Writing Prospectus.  “Applicable Time” means 3:30 p.m.
(Eastern Time) on the date of this Agreement.

Securities Laws” means, collectively, the
Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”), the Act, the Securities
Exchange Act of 1934 (the “Exchange Act”), the Trust Indenture Act of
1939 (the “Trust Indenture Act”), the rules and regulations of the
Commission (the “Rules and Regulations”), the auditing principles,
rules, standards and practices applicable to auditors of “issuers” (as defined
in Sarbanes-Oxley) promulgated or approved by the Public Company Accounting
Oversight Board and, as applicable, the rules of the New York Stock Exchange
(the “Exchange Rules”).

(b)
At the time the Registration Statement initially became
effective, at the time of each amendment thereto for the purposes of complying
with Section 10(a)(3) of the Act (whether by post effective amendment,
incorporated report or form of prospectus) and on the Effective Date relating
to the Notes, the Registration Statement conformed and will conform in all
material respects to the requirements of the Act, the Exchange Act, the Trust
Indenture Act and the Rules and Regulations and did not and will not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading.  The Registration Statement on the date of this
Agreement and the Prospectus on the date of this Agreement and at the Time of Delivery
will conform in all respects to the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations, and neither of such documents will
include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein not misleading.  This Section 1(b) does not apply to statements in or
omissions from any of such documents based upon written information furnished
to the Company by any Underwriter through Credit Suisse Securities (USA) LLC,
J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith
Incorporated as Representatives (the “Representatives”) of the several
Underwriters, if any, specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in Section 9(b) hereof or (ii) that part of the
Registration Statement that will constitute the Statement of Eligibility and
Qualification under the Trust Indenture Act (Form T-1) of the Trustee under the
Indenture (as defined below) (the “Form T-1”).

(c)
(i)               (A) At the time of the initial filing of the
Registration Statement, (B) at the time of the most recent amendment thereto
for the purposes of complying with Section 10(a)(3) of the Act (whether
such amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 or form
of prospectus), and (C) at the time the Company, the Guarantor or any person
acting on their behalf (within the meaning, for this clause only, of Rule
163(c) under the Act) made any offer relating to the Notes in reliance on the
exemption of Rule 163 under the Act and (D) at the time this Agreement is
executed, the Company was a “well-known seasoned issuer” as defined in
Rule 405 (“Rule 405”) under the Act, including not having been an
“ineligible issuer” as defined in Rule 405.

(ii)
The Registration Statement is an “automatic shelf registration
statement,” as defined in Rule 405, that initially became effective within
three years of the date of this Agreement.  If immediately prior to the third
anniversary (the “Renewal Deadline”) of the initial effective date of
the Registration Statement, any of the Notes remain unsold by the Underwriters,
the Company will prior to the Renewal Deadline file, if it has not already done
so and is eligible to do so, a new automatic shelf registration statement
relating to the Notes, in a form satisfactory to the Representatives.  If the
Company is no longer eligible to file an automatic shelf registration
statement, the Company will prior to the Renewal Deadline, if it has not
already done so, file a new shelf registration statement relating to the Notes,
in a form satisfactory to the Representatives, and will use its reasonable best
efforts to cause such registration statement to be declared effective within
180 days after the Renewal Deadline.  The Company and the Guarantor will take
all other action reasonably necessary or appropriate to permit the public
offering and sale of the Notes to continue as contemplated in the expired
registration statement relating to the Notes.  References herein to the
Registration Statement shall include such new automatic shelf registration
statement or such new shelf registration statement, as the case may be.

(iii)
Neither the Company nor Guarantor has received from the
Commission any notice pursuant to Rule 401(g)(2) (“Rule 401(g)(2)”)
under the Act objecting to use of the automatic shelf registration statement
form.  If at any time when Notes remain unsold by the Underwriters the Company
receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise
ceases to be eligible to use the automatic shelf registration statement form,
the Company will (i) promptly notify the Representatives, (ii) promptly file a
new registration statement or post-effective amendment on the proper form
relating to the Notes, in a form satisfactory to the Representatives, (iii) use
its reasonable best efforts to cause such registration statement or
post-effective amendment to be declared effective as soon as practicable, and
(iv) promptly notify the Representatives of such effectiveness.  The Company
and the Guarantor will take all other action reasonably necessary or
appropriate to permit the public offering and sale of the Notes to continue as
contemplated in the registration statement that was the subject of the Rule
401(g)(2) notice or for which the Company has otherwise become ineligible.  References
herein to the Registration Statement shall include such new registration
statement or post-effective amendment, as the case may be.

(iv)
The Company and the Guarantor have paid or shall pay the required
Commission filing fees relating to the Notes within the time required by Rule
456(b)(1) under the Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) under the Act.

(d)
(i) At the time of initial filing of the Registration Statement
and (ii) at the date of this Agreement, neither the Company nor the Guarantor
was or is an “ineligible issuer,” as defined in Rule 405, including (x) the
Company, the Guarantor or any other subsidiary in the preceding three years not
having been convicted of a felony or misdemeanor or having been made the
subject of a judicial or administrative decree or order as described in Rule
405 and (y) the Company and the Guarantor in the preceding three years not
having been the subject of a bankruptcy petition or insolvency or similar proceeding,
not having had a registration statement be the subject of a proceeding under
Section 8 of the Act and not being the subject of a proceeding under Section 8A
of the Act in connection with the offering of the Notes, all as described in
Rule 405.  As of the Applicable Time, neither (i) the General Use Issuer Free
Writing Prospectus(es) issued at or prior to the Applicable Time, the
preliminary prospectus, dated December 7, 2015 (which is the most recent
Statutory Prospectus distributed to investors generally) and the other
information, if any, stated in Schedule B to this Agreement to be included in
the General Disclosure Package, all considered together (collectively, the “General
Disclosure Package
”), nor (ii) any individual Limited Use Issuer Free
Writing Prospectus, when considered together with the General Disclosure
Package, included any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.  The
preceding sentence does not apply to statements in or omissions from any
Statutory Prospectus or any Issuer Free Writing Prospectus in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 9(b)
hereof.

(e)
Each Issuer Free Writing Prospectus, as of its issue date and at
all subsequent times through the completion of the public offer and sale of the
Notes or until any earlier date that the Company notified or notifies the
Representatives as described in the next sentence, did not, does not and will
not include any information that conflicted, conflicts or will conflict with
the information then contained in the Registration Statement or preliminary
prospectus supplement.  If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus conflicted or would conflict with the
information then contained in the Registration Statement or preliminary
prospectus supplement or as a result of which such Issuer Free Writing
Prospectus, if republished immediately following such event or development,
would include an untrue statement of a material fact or omitted or would omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, (i)
the Company has promptly notified or will promptly notify the Representatives
and (ii) the Company has promptly amended or will promptly amend or supplement
at its own expense such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission.  The foregoing two sentences do
not apply to statements in or omissions from any Issuer Free Writing Prospectus
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
Section 9(b) hereof.

(f)
Since the end of the period covered by the latest audited
financial statements included or incorporated by reference in the General
Disclosure Package, except as disclosed in the General Disclosure Package,
there has not been any material adverse change or any development involving a
prospective material adverse change in the business, general affairs,
management, financial position, shareholders’ equity or results of operations
of the Company, the Guarantor and their subsidiaries taken as a whole.  Since
the end of the period covered by the latest audited financial statements
included or incorporated by reference in the General Disclosure Package, except
as disclosed in the General Disclosure Package, neither the Company, the
Guarantor nor any of their subsidiaries has sustained any material loss or
interference with their business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree.

(g)
The Company, the Guarantor and their subsidiaries have good and
marketable title to all real property and title to all personal property owned
by them, in each case free and clear of all liens, encumbrances and defects
except such as are disclosed in the Registration Statement, Prospectus or the
General Disclosure Package, or as do not, individually or in the aggregate,
have a material adverse effect on the business, financial position or results
of operations or reasonably foreseeable prospects of the Company, the Guarantor
and their subsidiaries taken as a whole (a “Material Adverse Effect”);
and any real property and buildings held under lease by the Company, the
Guarantor and their subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as would not, individually or in the
aggregate, have a Material Adverse Effect.

(h)
Each of the Company and the Guarantor has been duly incorporated
and is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and other)
to own its properties and conduct its business as described in the Registration
Statement, Prospectus or the General Disclosure Package, and has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it is required
to be so qualified, except where failure to be so qualified and in good
standing individually or in the aggregate would not have a Material Adverse
Effect; and each subsidiary of the Company and the Guarantor has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Registration Statement, Prospectus and the General Disclosure
Package, except where failure to be duly incorporated, validly existing and in
good standing would not, individually or in the aggregate, have a Material
Adverse Effect.

(i)                All of the issued shares of capital stock of the Guarantor have
been duly and validly authorized and issued and are fully paid and
non-assessable; all of the issued shares of capital stock of the Company and of
each Significant Subsidiary (as such term is defined in Rule 405 under the Act)
of the Company and Guarantor have been duly and validly authorized and issued,
are fully paid and non-assessable and (except as otherwise disclosed in the
Registration Statement, Prospectus or the General Disclosure Package) are owned
directly or indirectly by the Guarantor, free and clear of all material liens,
encumbrances, equities or claims; and all of the issued shares of capital stock
of each subsidiary of the Guarantor have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or indirectly
by the Guarantor, free and clear of all liens, encumbrances, equities or claims
(except as otherwise disclosed in the Registration Statement, Prospectus or the
General Disclosure Package or where, individually or in the aggregate, the
failure to have been duly and validly authorized and issued, to be fully paid
and non-assessable and to be owned directly or indirectly by the Guarantor free
and clear of liens, encumbrances, equities or claims would not have a Material
Adverse Effect).

(j)                The Notes and the related Guarantee have been duly authorized
and, when issued and delivered pursuant to this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company and the Guarantor entitled to the
benefits provided by an Indenture (the “Base Indenture”), dated as of
November 2, 2006, as supplemented by the Sixth
Supplemental Trust Indenture with respect to the Notes (the “Sixth
Supplemental Indenture
”), to be dated as of December 10, 2015 (the Base
Indenture, as so supplemented and amended, the “Indenture”), among the
Company, the Guarantor and U.S. Bank, National Association, as Trustee (the “Trustee”),
under which the Notes and the related Guarantee are to be issued and
enforceable in accordance with their terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization, and other
laws of general applicability relating to or affecting creditors’ rights and to
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law; the Indenture has been duly
authorized, and when executed and delivered, will be duly qualified under the
Trust Indenture Act; the Base Indenture constitutes (and the Sixth Supplemental
Indenture, when executed and delivered by the Company and the Trustee, will
constitute) a valid and legally binding instrument, enforceable in accordance
with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, and other laws of general applicability
relating to or affecting creditors’ rights and to general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law; and each of the Notes, the related Guarantee and the
Indenture will conform in all material respects to the descriptions thereof in
the Registration Statement, Prospectus or the General Disclosure Package.

(k)
The issue and sale of the Notes, the related Guarantee, and the
compliance by the Company and the Guarantor with all of the provisions of the
Notes, the related Guarantee, the Indenture and this Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, sale/leaseback agreement, loan agreement or other similar financing
agreement or instrument or other agreement or instrument to which the Company,
the Guarantor or any of their subsidiaries is a party or by which the Company,
the Guarantor or any of their subsidiaries is bound or to which any of the
property or assets of the Company, the Guarantor or any of their subsidiaries
is subject, except for such conflicts, breaches, violations and defaults as
individually or in the aggregate would not have a Material Adverse Effect, nor
will such action result in any material violation of the provisions of the
certificate of incorporation or by-laws of the Company or the Guarantor or any
material statute, order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company, the Guarantor or any of their
Significant Subsidiaries or any of their properties, nor will such action
result in any violation of the provisions of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company, the Guarantor or any of their subsidiaries or any of their
properties except for such violations as individually or in the aggregate would
not have a Material Adverse Effect; and no consent, approval, authorization,
order, registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Notes and the related
Guarantee or the consummation by the Company or the Guarantor of the
transactions contemplated by this Agreement or the Indenture, except the
registration of the Notes and the related Guarantee under the Act, the Exchange
Act and such as have been obtained under the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Notes by the Underwriters.

(l)                Except for such of the following violations, defaults and
failures as individually or in the aggregate would not have a Material Adverse
Effect, neither the Company, the Guarantor nor any of their subsidiaries (i) is
in violation of its certificate of incorporation or by-laws (or comparable
governing documents), (ii) is in default, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any obligation, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound, (iii) is in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its property is subject,
or (iv) has failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership of its
property or to the conduct of its business.

(m)
The statements set forth in the Registration Statement,
Prospectus or the General Disclosure Package under the captions “Description of
Debt Securities,” “Description of Notes” and “U.S. Federal Income Tax
Considerations”, insofar as they purport to constitute a summary of the terms
of the Notes and the related Guarantee, and under the caption “Underwriting”,
insofar as it purports to describe the provisions of the laws and the documents
referred to therein, constitute accurate summaries of the terms of such
documents in all material respects.

(n)              Other than as set forth in the Registration Statement, Prospectus
or the General Disclosure Package, there are no legal or governmental
proceedings pending to which the Company, the Guarantor or any of their
subsidiaries is a party or of which any property of the Company, the Guarantor
or any of their subsidiaries is the subject which, if determined adversely to
the Company, the Guarantor or any of their subsidiaries, would individually or
in the aggregate have a Material Adverse Effect; and, to the best knowledge of the
Company and the Guarantor, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.

(o)              Neither the Company nor the Guarantor is and, after giving effect
to the offering and sale of the Notes and the application of the proceeds
thereof as described in the Registration Statement, Prospectus or the General
Disclosure Package, neither the Company nor the Guarantor will be an
“investment company” or an entity “controlled” by an “investment company”, as
such terms are defined in the Investment Company Act of 1940, as amended (the “Investment
Company Act
”).

(p)              The interactive data in eXtensible Business Reporting Language (“XBRL”)
included or incorporated by reference in the Registration Statement fairly
presents the information called for in all material respects and has been
prepared in accordance with the Commission’s rules and guidelines applicable
thereto.

(q)              Except as set forth in the Registration Statement, Prospectus and
the General Disclosure Package, the Guarantor and its subsidiaries and the
Guarantor’s Board of Directors (the “Board”) are in compliance in all
material respects with Sarbanes-Oxley and all applicable Exchange Rules.  The
Guarantor maintains a system of internal controls, including, but not limited
to, disclosure controls and procedures, internal controls over accounting
matters and financial reporting, an internal audit function and legal and
regulatory compliance controls (collectively, “Internal Controls”) that
comply with the Securities Laws and are sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management’s
general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements and the interactive data in XBRL
included or incorporated by reference in the Registration Statement in
conformity with accounting principles generally accepted in the United States
and to maintain accountability for assets, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization,
(iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to
any differences and (v) the Guarantor has adopted and applies corporate
governance guidelines.  The Internal Controls are, or upon consummation of the
offering of the Notes will be, overseen by the Audit Committee (the “Audit
Committee
”) of the Board in accordance with Exchange Rules in all material
respects.  The Guarantor has not publicly disclosed or reported to the Audit
Committee or the Board, and within the next 90 days the Guarantor does not
reasonably expect to publicly disclose or report to the Audit Committee or the
Board, a significant deficiency, material weakness, change in Internal Controls
or fraud involving management or other employees who have a significant role in
Internal Controls (each, an “Internal Control Event”), any violation of,
or failure to comply with, the Securities Laws, or any matter which, if
determined adversely, would have a Material Adverse Effect.

(r)               KPMG LLP, who have certified certain financial statements of the
Guarantor and its subsidiaries including the Company, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.

2.
Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company,
at a purchase price of 99.299% of
the principal amount of the Notes, plus accrued interest, if any, from
December 10, 2015 to the Time of Delivery hereunder, the principal amount of
the Notes set forth opposite the name of such Underwriter in Schedule A hereto.

3.
Upon the authorization by the Underwriters of the release of the
Notes, the several Underwriters propose to offer the Notes for sale upon the
terms and conditions set forth in the Registration Statement, Prospectus or the
General Disclosure Package.

4.         (a)  The Notes to be purchased by each Underwriter hereunder will
be represented by one or more definitive global securities in book-entry form
which will be deposited by or on behalf of the Company with The Depository
Trust Company (“DTC”) or its designated custodian.  The Company will
deliver the Notes to Credit Suisse Securities (USA) LLC, for the account of
each Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor in federal (same-day) funds by wire transfer to an
account designated by the Company for such purpose, by causing DTC to credit
the Notes to the account of Credit Suisse Securities (USA) LLC at DTC.  The
Company will cause the certificates representing the Notes to be made available
to Credit Suisse Securities (USA) LLC for checking at least twenty‑four
hours prior to the Time of Delivery (as defined below) at the office of DTC or
its designated custodian (the “Designated Office”).  The time and date
of such delivery and payment shall be approximately 10:00 a.m., New York City
time, on December 10, 2015 or such other time and date as Credit Suisse
Securities (USA) LLC and the Company may agree upon in writing.  Such time and
date are herein called the “Time of Delivery”.

(b)  The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the
cross-receipt for the Notes and any additional documents requested by the
Underwriters pursuant to Section 8(i) hereof, will be delivered at the offices
of Shearman & Sterling LLP, 599 Lexington Avenue, New York, NY 10022 (the “Closing
Location
”), and the Notes will be delivered at the Designated Office, all
at the Time of Delivery.  A meeting will be held at the Closing Location at
approximately 5:00 p.m., New York City time, on the New York Business Day
next preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto.  For purposes of this Section 4, “New York
Business Day
” shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.

5.
Each of the Company and the Guarantor agrees with each of the
Underwriters:

(a)    To prepare each Statutory Prospectus (including the Prospectus)
in a form approved by the Underwriters and to file such Statutory Prospectus
(including the Prospectus) pursuant to Rule 424(b)(2) under the Act (or, if
applicable and consented to by the Representatives, subparagraph 424(b)(5)) not
later than the Commission’s close of business on the second business day
following the execution and delivery of this Agreement or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further amendment or
any supplement to the Registration Statement or Statutory Prospectus (including
the Prospectus) after the date of this Agreement and prior to the Time of
Delivery which shall be disapproved by the Underwriters promptly after
reasonable notice thereof; to advise the Underwriters promptly of such
amendment or supplement after such Time of Delivery and furnish the
Underwriters with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
and the Guarantor with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Notes, and during such
same period to advise the Underwriters promptly after it receives notice
thereof, of the time when any amendment or supplement to the Registration Statement
or any Statutory Prospectus has been proposed or filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Notes, of the suspension
of the qualification of the Notes for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or any Statutory Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the Notes or
suspending any such qualification, to promptly use its best efforts to obtain
the withdrawal of such order.  Each of the Company and the Guarantor has
complied and will comply with Rule 433;

(b)    Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify the Notes for offering and sale
under the securities laws of such jurisdictions in the United States as the
Underwriters may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of the Notes, provided
that in connection therewith neither the Company nor the Guarantor shall be
required to qualify as a foreign corporation, to file a general consent to
service of process in any jurisdiction or to take any action that would subject
it to general taxation in any jurisdiction;

(c)    Prior to approximately 2:00 p.m., New York City time, on the
second business day next succeeding the date of this Agreement and from time to
time thereafter, to furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities in New York City as the Underwriters
may reasonably request, and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, if it is necessary at
any time to amend the Registration Statement or supplement the Prospectus to
comply with the Act or, if for any other reason it shall be necessary during
such same period to amend the Registration Statement or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange Act
or the Trust Indenture Act, to notify the Underwriters and, upon the request of
the Representatives and subject to the approval of the Representatives, to file
such document and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as the Underwriters may from time to
time reasonably request of an amendment or supplement to the Prospectus which
will correct such statement or omission or an amendment which will effect such
compliance;

(d)    To make generally available to the securityholders of the Company
and Guarantor as soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company, the Guarantor
and their subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158, in which case this Section
5(d) shall not be construed to require the Company to file any report referred
to in Rule 158 prior to the time at which such report is otherwise due);

(e)     During the period beginning from the date hereof and continuing
to and including the later of the Time of Delivery and such earlier time as the
Underwriters may notify the Company, not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder, any securities of the
Company that are substantially similar to the Notes;

(f)      For so long as Notes are in global form, to furnish to the
holders thereof as soon as practicable after the end of each fiscal year an
annual report (including a balance sheet and statements of income,
shareholders’ equity and cash flows of the Company, the Guarantor and their
consolidated subsidiaries certified by independent public accountants) and, as
soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), consolidated summary financial information of
the Company, the Guarantor and their subsidiaries for such quarter in
reasonable detail; and to furnish to the holders of the Notes all other
documents specified in Section 7.04 of the Base Indenture, all in the manner so
specified, provided that the availability of the foregoing materials with the
Commission on its Electronic Data Gathering, Analysis and Retrieval (“EDGAR”)
system shall be deemed to satisfy this delivery obligation;

(g)      During a period of three years from the effective date of the
Registration Statement, to furnish to the Underwriters copies of all reports or
other communications (financial or other) furnished to the stockholders of the
Guarantor generally, and to deliver to the Underwriters (i) as soon as they are
available, (A) copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange on which the
Notes or any class of securities of the Company or the Guarantor is listed and
(B) the documents specified in Section 7.04 of the Base Indenture, as in effect
at the Time of Delivery, and (ii) such additional information concerning the
business and financial condition of the Company or the Guarantor as the
Underwriters may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company, the Guarantor and their subsidiaries are consolidated in reports
furnished to the Guarantor’s stockholders generally or to the Commission); provided
that any material nonpublic information received by the Underwriters will be
held in confidence and not used in violation of any applicable law; and provided
further
that, for so long as the Guarantor is subject to the reporting
requirements of either Section 13 or Section 15(d) of the Exchange Act and is
timely filing reports with the Commission on its EDGAR system, neither the
Company nor the Guarantor shall be required to furnish such reports or
statements to the Underwriters; and

(h)      To use the net proceeds received by it from the sale of the Notes
pursuant to this Agreement in the manner specified in the Prospectus under the
caption “Use of Proceeds.”

6.                   (a)  Each of the Company and the Guarantor represents and agrees
that, unless it obtains the prior consent of the Representatives, and each
Underwriter represents and agrees that, unless it obtains the prior consent of
the Company and the Representatives, it has not made and will not make any
offer relating to the Notes that would constitute an Issuer Free Writing
Prospectus, or that would otherwise constitute a “free writing prospectus,” as
defined in Rule 405, required to be filed with the Commission.  Any such free
writing prospectus consented to by the Company and the Representatives is
hereinafter referred to as a “Permitted Free Writing Prospectus.”  Each
of the Company and the Guarantor represents that it has treated and agrees that
it will treat each Permitted Free Writing Prospectus as an “issuer free writing
prospectus,” as defined in Rule 433, and has complied and will comply with the
requirements of Rules 164 and 433 applicable to any Permitted Free Writing
Prospectus, including timely filing where required with the Commission,
legending and record keeping.

          (b)  The Company will prepare a final term sheet relating to the
Notes, containing only information that describes the final terms of the Notes
and otherwise in a form consented to by the Representatives, and will file such
final term sheet within the period required by Rule 433(d)(5)(ii) on or
following the date such final terms have been established for all classes of
the offering of the Notes.  Any such final term sheet is an Issuer Free Writing
Prospectus and a Permitted Free Writing Prospectus for purposes of this
Agreement.  The Company also consents to the use by any Underwriter of a free
writing prospectus that contains only (i)(x) information describing the
preliminary terms of the Notes or their offering or (y) information that
describes the final terms of the Notes or their offering and that is included
in the final term sheet of the Company contemplated in the first sentence of
this subsection or (ii) other information that is not “issuer
information,” as defined in Rule 433, it being understood that any such free
writing prospectus referred to in clause (i) or (ii) above shall not be an
Issuer Free Writing Prospectus for purposes of this Agreement.

7.
Each of the Company and the Guarantor covenants and agrees with
the several Underwriters that each of the Company and the Guarantor will pay or
cause to be paid the following:  (i) the fees, disbursements and expenses of
counsel and accountants of the Company and the Guarantor in connection with the
registration of the Notes under the Act, all other expenses in connection with
the preparation, printing and filing of the Registration Statement, any
preliminary prospectuses and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the Underwriters
and dealers, and for expenses incurred for preparing, printing and distributing
any Issuer Free Writing Prospectuses to investors or prospective investors;
(ii) the cost of producing any Agreement among Underwriters, this Agreement,
the Indenture, the Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Notes; (iii) all expenses in connection with
the qualification of the Notes for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements
of counsel for the Underwriters (not to exceed $5,000 in the aggregate) in
connection with such qualification and in connection with the Blue Sky
Memorandum; (iv) any fees charged by securities rating services for rating the
Notes; (v) the filing fees incident to, and fees and the disbursements of
counsel for the Underwriters in connection with, any required review by the
Financial Industry Regulatory Authority of the terms of the sale of the Notes;
(vi) the cost of preparing the Notes; (vii) the fees and expenses of the
Trustee and any agent of the Trustee and the fees and disbursements of counsel
for the Trustee in connection with the Indenture and the Notes; and (viii) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section.
It is understood, however, that, except as provided in this Section, and
Sections 9 and 12 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Notes by them, and any advertising expenses connected with any offers
they may make.

8.
The obligations of the Underwriters to purchase the Notes
hereunder shall be subject in the sole discretion of the Underwriters to the
condition that all representations and warranties and other statements of the
Company and the Guarantor herein are, at and as of the Time of Delivery, true
and correct, the condition that the Company and the Guarantor shall have
performed all of their obligations hereunder theretofore to be performed, and
the following additional conditions:

(a)     Each Statutory Prospectus (including the Prospectus) shall have
been filed with the Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the rules and regulations under the
Act and in accordance with Section 5(a) hereof and the Indenture shall have
been qualified under the Trust Indenture Act; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission and no notice pursuant to Rule 401(g)(2)
shall have been received; and all requests for additional information on the
part of the Commission shall have been complied with to the reasonable
satisfaction of the Underwriters;

(b)     Shearman & Sterling LLP, counsel for the Underwriters, shall
have furnished to the Underwriters a written opinion, dated the Time of
Delivery, in form and substance reasonably satisfactory to the Underwriters;

(c)      The General Counsel for the Guarantor and President of the
Company shall have furnished to the Underwriters his written opinion, dated the
Time of Delivery, in substantially the form attached hereto as Annex I;

(d)      Jones Day, counsel for the Company, shall have furnished to the
Underwriters a written opinion, dated the Time of Delivery, in substantially
the form attached hereto as Annex II;

(e)      KPMG LLP shall have furnished to the Underwriters letters, dated,
respectively, the date hereof and the Time of Delivery confirming that they are
a registered public accounting firm and independent public accountants within
the meaning of the Securities Laws in form and substance satisfactory to the
Underwriters (except that, in any letter dated the Time of Delivery, the procedures
in the letter shall be brought down to a date no more than three business days
prior to the Time of Delivery);

(f)       (i) Since the date of the latest audited financial statements
included or incorporated by reference in the Registration Statement, Prospectus
or the General Disclosure Package except as set forth or contemplated in the
Registration Statement, Prospectus or the General Disclosure Package, neither
the Company, the Guarantor nor any of their subsidiaries, taken as a whole,
shall have sustained any loss or interference with their business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree, and
(ii) since the respective dates as of which information is given in the
Registration Statement, Prospectus or the General Disclosure Package, there
shall not have been any change or any development involving a prospective
change in the capital stock or long-term debt of the Company, the Guarantor or
any of their subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, shareholders’ equity or results of operations of the Company, the
Guarantor and their subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Registration Statement, Prospectus or the General
Disclosure Package, the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of the Representatives so material and adverse
as to make it impracticable or inadvisable to proceed with the public offering
or the delivery of the Notes on the terms and in the manner contemplated in the
Registration Statement, Prospectus or the General Disclosure Package;

(g)      On or after the date hereof, (i) no downgrading shall have
occurred in the rating accorded to debt securities of the Company or the
Guarantor by any “nationally recognized statistical rating organization”, as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating
of any of the debt securities of the Company or the Guarantor;

(h)       On or after the date hereof, there shall not have occurred any of
the following:  (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the securities of the Company or the
Guarantor on the New York Stock Exchange; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York State
authorities or a major disruption in commercial banking or securities
settlement or clearance services; (iv) the outbreak or escalation of
hostilities or any calamity or crisis involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Notes on the terms and in the manner
contemplated in the Prospectus, General Disclosure Package or this Agreement;
or (v) the occurrence of any material adverse change in the existing financial,
political or economic conditions in the United States or elsewhere which, in
the judgment of the Representatives, would materially and adversely affect the
financial markets or the market for the Notes and other debt securities; and

(i)         Each of the Company and the Guarantor shall have furnished or
caused to be furnished to the Underwriters at the Time of Delivery certificates
of officers of the Company and the Guarantor satisfactory to the Underwriters
as to the accuracy of the representations and warranties of the Company and the
Guarantor herein at and as of such Time of Delivery, as to the performance by
the Company and the Guarantor of all of their obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth in
subsections (a) and (f) of this Section and as to such other matters as the
Underwriters may reasonably request.

9.
(a)  Each of the Company and the Guarantor jointly and severally
will indemnify and hold harmless each Underwriter, its partners, members,
directors, officers, employees, agents, affiliates and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act (each, an “Indemnified Party”), against
any losses, claims, damages or liabilities, joint or several, to which such
Indemnified Party may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement at any time, any
Statutory Prospectus as of any time, the Prospectus or any Issuer Free Writing
Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim as such expenses are incurred; provided,
however, that neither the Company nor the Guarantor shall be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Registration Statement at any time,
any Statutory Prospectus as of any time, the Prospectus or any Issuer Free
Writing Prospectus, or any amendment or supplement thereto in reliance upon and
in conformity with written information furnished to the Company or to the
Guarantor by any Underwriter through the Representatives expressly for use
therein.

         (b)
Each Underwriter will indemnify and hold harmless the Company and
the Guarantor, each of their directors and each of their officers who signs the
Registration Statement and each person, if any, who controls the Company or
Guarantor within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act (each, an “Underwriter Indemnified Party”) against any
losses, claims, damages or liabilities to which such Underwriter Indemnified
Party  may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement at any time, any Statutory
Prospectus as of any time, the Prospectus or any Issuer Free Writing
Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in any Registration Statement at any time, any Statutory Prospectus as
of any time, the Prospectus or any Issuer Free Writing Prospectus, or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company or the Guarantor by such Underwriter
through the Representatives expressly for use therein; and will reimburse the
Company and the Guarantor for any legal or other expenses reasonably incurred
by the Underwriter Indemnified Party in connection with investigating or
defending any such action or claim as such expenses are incurred, it being
understood and agreed that the only such information furnished by an
Underwriter through the Representatives consists of the concession and
reallowance figures appearing in the third paragraph under the caption
“Underwriting” of the Prospectus and the eighth and ninth paragraphs under the
caption “Underwriting” of the Prospectus concerning stabilizing transactions.

         (c)  Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection.  In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.  No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.

         (d)
If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Guarantor on the one hand
and the Underwriters on the other from the offering of the Notes.  If, however,
the allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Guarantor on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations.  The relative benefits received
by the Company and the Guarantor on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the Prospectus.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Guarantor on the one hand or the Underwriters on
the other and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.  The Company,
the Guarantor and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d).  The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.  Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.  No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.  The Underwriters’ obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.

         (e)
The obligations of the Company and the Guarantor under this Section
9 shall be in addition to any liability which the Company or the Guarantor may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 9 shall be in addition
to any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company or the Guarantor (including any person who, with his or her consent, is
named in the Registration Statement as about to become a director of the
Company or the Guarantor) and to each person, if any, who controls the Company
within the meaning of the Act.

10.                (a)  If any Underwriter shall default in its obligation to
purchase any of the Notes which it has agreed to purchase hereunder, the
Underwriters may in their discretion arrange for the Underwriters or another
party or other parties to purchase such Notes on the terms contained herein.
If within thirty-six hours after such default by any Underwriter the
Underwriters do not arrange for the purchase of such Notes, then the Company
shall be entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to the Underwriters to purchase
such Notes on such terms.  In the event that, within the respective prescribed
periods, the Underwriters notify the Company that they have so arranged for the
purchase of such Notes or the Company notifies the Underwriters that it has so
arranged for the purchase of such Notes, as the case may be, the Underwriters
or the Company shall have the right to postpone the Time of Delivery for a
period of not more than seven days in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement, the Prospectus, any Statutory Prospectus, any
prospectus wrapper and any Issuer Free Writing Prospectus which in the opinion
of the Underwriters may thereby be made necessary.  The term “Underwriter
as used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party to this
Agreement with respect to such Notes.

        (b)  If, after giving effect to any arrangements for the purchase of
the Notes of a defaulting Underwriter or Underwriters by the Underwriters and
the Company as provided in subsection (a) above, the aggregate principal amount
of such Notes which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all such Notes as set forth in Schedule A hereto,
then the Company shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of such Notes which such
Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of such Notes which such Underwriter agreed to purchase
hereunder) of such Notes of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.

        (c)  If, after giving effect to any arrangements for the purchase of
the Notes of a defaulting Underwriter or Underwriters by the Underwriters and
the Company as provided in subsection (a) above, the aggregate principal amount
of such Notes which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of all such Notes as set forth in Schedule A hereto, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase such Notes of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be borne by the Company and the Underwriters as
provided in Section 7 hereof and the indemnity and contribution agreements in
Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.

11.               The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Guarantor and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter,  the Company, or any officer or director or controlling person
of the Company, or the Guarantor, or any officer or director or controlling
person of the Guarantor, and shall survive delivery of and payment for the
Notes.

12.               If this Agreement shall be terminated pursuant to Section 10
hereof, neither the Company nor the Guarantor shall then be under any liability
to any Underwriter except as provided in Sections 7 and 9 hereof; but, if for
any other reason, the Notes are not delivered by or on behalf of the Company as
provided herein, the Company and the Guarantor will reimburse the Underwriters
for all out-of-pocket expenses, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Notes, but the Company and the Guarantor
shall then be under no further liability to any Underwriter except as provided
in Sections 7 and 9 hereof.

13.
All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by mail or
facsimile transmission to the Underwriters in care of each of the following:

Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, NY 10010-3629
Attention:  LCD-IBD
Fax: 212-322-2936

J.P. Morgan Securities LLC
383 Madison Avenue
New York, NY 10179
Attention:  Investment Grade Syndicate Desk
Fax:  212-834-6081

Merrill Lynch, Pierce, Fenner & Smith
Incorporated
50 Rockefeller Plaza
NY1-050-12-01
New York, NY 10020
Attention:  High Grade Transaction Management/Legal
Fax: 212-901-7867

and if to the Company shall be delivered or sent by
mail or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Chief Financial Officer and Attention:
Secretary or by facsimile to 513-579-7354; provided, however,
that any notice to an Underwriter pursuant to Section 9(c) hereof shall be
delivered or sent by mail or facsimile transmission to such Underwriter at its
address set forth in its Underwriters’ Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company by the
Underwriters upon request.  Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.

14.
This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, the Guarantor and, to the extent
provided in Sections 9 and 11 hereof, the officers and directors of the Company
and the Guarantor and each person who controls the Company, the Guarantor or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement.  No purchaser of any of the Notes from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.

15.
Time shall be of the essence of this Agreement.  As used herein,
the term “business day” shall mean any day when the Commission’s office
in Washington, D.C. is open for business.

16.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.

17.
This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one
and the same instrument.

18.
Each of the Company and the Guarantor acknowledges and agrees
that:

(a)
The Underwriters have been retained solely to act as underwriters
in connection with the sale of the Notes and that no fiduciary, advisory or agency
relationship between the Company and the Underwriters nor between the Guarantor
and the Underwriters has been created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether the Underwriters have
advised or is advising the Company or the Guarantor on other matters;

(b)
The price of the Notes set forth in this Agreement was
established by the Company following discussions and arms-length negotiations
with the Representatives and the Company is capable of evaluating and understanding
and understands and accepts the terms, risks and conditions of the transactions
contemplated by this Agreement;

(c)
The Company and the Guarantor have been advised that the
Underwriters and their affiliates are engaged in a broad range of transactions
which may involve interests that differ from those of the Company and the
Guarantor and that the Underwriters have no obligation to disclose such
interests and transactions to the Company and the Guarantor by virtue of any
fiduciary, advisory or agency relationship; and

(d)
The Company and the Guarantor waive, to the fullest extent
permitted by law, any claims they may have against the Underwriters for breach
of fiduciary duty or alleged breach of fiduciary duty and agree that the
Underwriters shall have no liability (whether direct or indirect) to the
Company or the Guarantor in respect of such a fiduciary duty claim or to any
person asserting a fiduciary duty claim on behalf of or in right of the Company
or the Guarantor, including stockholders, employees or creditors of the Company
or the Guarantor.

[SIGNATURE PAGES FOLLOW]

 

If the foregoing is in accordance with your understanding,
please sign and return to us counterparts hereof, and upon the acceptance
hereof by the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company and
the Guarantor.

Very
truly yours,

MACY’S
RETAIL HOLDINGS, INC.

By:  /s/Karen
Hoguet

Name:   Karen
Hoguet

Title:     Chief
Financial Officer

MACY’S,
INC.

By:  /s/Karen
Hoguet

Name:   Karen
Hoguet

Title:     Chief
Financial Officer

 

Accepted
as of the date hereof:

CREDIT
SUISSE SECURITIES (USA) LLC

J.P.
MORGAN SECURITIES LLC

Merrill Lynch, Pierce, Fenner & Smith

                               Incorporated

By:      CREDIT
SUISSE SECURITIES (USA) LLC

By:  /s/Ajit
Dogra

Name:  Ajit
Dogra

Title:  Director

By:      J.P.
MORGAN SECURITIES LLC

 By:  /s/Som Bhattacharyya

 Name: Som Bhattacharyya

 Title:
Vice President

By:      Merrill Lynch, Pierce, Fenner & Smith

Incorporated

By:  /s/Shawn
D. Cepeda

Name:  Shawn
D. Cepeda

Title:    Managing Director

 

On behalf of each of the Underwriters

 

SCHEDULE A

Principal Amount
of
Senior Notes due 2021
to Be Purchased

Credit
Suisse Securities (USA) LLC………………..

$
100,000,000.00

J.P. Morgan
Securities LLC ………………………………

100,000,000.00

Merrill
Lynch, Pierce, Fenner & Smith

Incorporated …………………………………

100,000,000.00

Goldman,
Sachs & Co. ……………………………………..

100,000,000.00

U.S. Bancorp
Investments, Inc. …………………………

25,000,000.00

Wells Fargo
Securities, LLC ……………………………..

25,000,000.00

Fifth Third
Securities, Inc. ………………………………..

11,250,000.00

PNC Capital
Markets LLC………………………………..

11,250,000.00

BNY Mellon
Capital Markets, LLC……………………

5,000,000.00

Citigroup
Global Markets Inc. …………………………..

5,000,000.00

Mitsubishi
UFJ Securities (USA), Inc. ………………..

5,000,000.00

Standard
Chartered Bank………………………………….

5,000,000.00

Loop Capital
Markets LLC………………………………..

2,500,000.00

Samuel A.
Ramirez & Company, Inc. …………………

2,500,000.00

The Williams
Capital Group, L.P. ………………………

2,500,000.00

Total………………………………………………….

$500,000,000.00

 

SCHEDULE B

General Disclosure Package

1.  General Use Free Writing
Prospectuses (included in the General Disclosure Package)

“General Use
Issuer Free Writing Prospectus” includes each of the following documents:

1.  Final term sheet, dated December 7, 2015, a copy of which
is attached hereto as Schedule C

 

SCHEDULE C
Final Term Sheet

 

ANNEX I

Form of
Opinion of General Counsel for the Guarantor and President of the Company

 

ANNEX II

Form of Opinion of Jones Day