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The following is an excerpt from a S-4 SEC Filing, filed by EXXON MOBIL CORP on 2/1/2010.
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EXXON MOBIL CORP - S-4 - 20100201 - TRANSFER_AGENT

Transfer Agent and Registrar

Computershare Trust Company, N.A. is the transfer agent and registrar for ExxonMobil common stock.

Stock Exchange Listing

It is a condition to the merger that the shares of ExxonMobil common stock issuable in the merger be approved for listing on the New York Stock Exchange, subject to official notice of issuance. If the merger is completed, XTO Energy common stock will cease to be listed on any stock exchange and will be deregistered under the Exchange Act.

 

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COMPARISON OF SHAREHOLDER RIGHTS

The rights of ExxonMobil shareholders are currently governed by New Jersey law and ExxonMobil’s restated certificate of incorporation and by-laws. The rights of XTO Energy stockholders are currently governed by Delaware law and XTO Energy’s restated certificate of incorporation and amended and restated bylaws. Following completion of the merger, the rights of XTO Energy stockholders who become shareholders of ExxonMobil in the merger will be governed by New Jersey law and the ExxonMobil restated certificate of incorporation and by-laws.

The following discussion summarizes the material differences between the current rights of XTO Energy stockholders and the current rights of ExxonMobil shareholders. These differences arise in part from the differences between New Jersey law and Delaware law. Additional differences arise from the governing instruments of the two companies.

Although it is impracticable to compare all of the aspects in which New Jersey law and Delaware law and ExxonMobil’s and XTO Energy’s governing instruments differ with respect to shareholder rights, the following discussion summarizes certain material differences between them. This summary is not intended to be complete, and it is qualified in its entirety by reference to New Jersey law, Delaware law, ExxonMobil’s restated certificate of incorporation and by-laws and XTO Energy’s restated certificate of incorporation and amended and restated bylaws. In addition, the identification of some of the differences in the rights of these stockholders as material is not intended to indicate that other differences that are equally important do not exist. ExxonMobil and XTO Energy urge you to carefully read this entire proxy statement/prospectus, the relevant provisions of New Jersey law and Delaware law and the other documents to which ExxonMobil and XTO Energy refer in this proxy statement/prospectus for a more complete understanding of the differences between the rights of an ExxonMobil shareholder and the rights of an XTO Energy stockholder. ExxonMobil and XTO Energy have filed with the SEC their respective governing documents referenced in this comparison of shareholder rights and will send copies of these documents to you, without charge, upon your written or telephonic request. See “Where You Can Find More Information” beginning on page [ ] of this proxy statement/prospectus.

Material Differences in Shareholder Rights

 

    

XTO Energy Stockholder Rights

  

ExxonMobil Shareholder Rights

Authorized Capital Stock    The authorized capital stock of XTO Energy consists of (i) 1,000,000,000 shares of common stock, $0.01 par value, and (ii) 25,000,000 shares of preferred stock, $0.01 par value.    ExxonMobil’s authorized capital stock consists of (i) 9,000,000,000 shares of common stock, without par value, and (ii) 200,000,000 shares of preferred stock, without par value.
   Under XTO Energy’s restated certificate of incorporation, XTO Energy’s board of directors has the authority to issue one or more classes or series within a class of common stock or preferred stock with voting powers and other terms as the board of directors may determine.    Under ExxonMobil’s restated certificate of incorporation, ExxonMobil’s board of directors has the authority to issue one or more classes or series within a class of preferred stock with voting powers and other terms as the board of directors may determine.
  

As of January 22, 2010, there were (i) 583,275,792 shares of XTO Energy common stock and (ii) no shares of XTO Energy preferred stock outstanding.

 

   As of January 22, 2010, there were
(i) 4,720,350,164 shares of ExxonMobil common stock and (ii) no shares of ExxonMobil preferred stock outstanding.
Size of Board of Directors    XTO Energy’s board of directors currently has nine members.    ExxonMobil’s board of directors currently has ten members.

 

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   XTO Energy’s restated certificate of incorporation and amended and restated bylaws provide that the XTO Energy board of directors must consist of not less than three nor more than 21 members, as may be fixed from time to time by a resolution adopted by the majority of the entire board of directors or by the affirmative vote of holders of 80% or more of the voting power of the then outstanding shares of XTO Energy capital stock entitled to vote in the election of directors, voting together as a single class.    Under the ExxonMobil restated certificate of incorporation and by-laws, the board of directors must consist of not less than 10 nor more than 19 members, as may be fixed from time to time by resolution of the ExxonMobil board of directors.
  

XTO Energy’s board of directors has discretion to elect one or more advisory directors to serve for a term established by the XTO Energy board of directors. Advisory directors attend meetings of the XTO Energy board of directors and meetings of committees to which they are assigned, but are not entitled to vote. Advisory directors are not considered members of the XTO Energy board of directors for notice, quorum, voting or other purposes, and the XTO Energy board of directors can excuse any advisory director from all or any portion of any meeting. There are currently three employees of XTO Energy serving as advisory directors.

 

  
Classification of Board of Directors    Prior to XTO Energy’s 2009 annual meeting of stockholders on May 19, 2009, XTO Energy’s board of directors was divided into three classes, in as equal number as possible, with staggered three-year terms. At XTO Energy’s 2009 annual meeting of stockholders, XTO Energy’s stockholders approved and adopted an amendment to XTO Energy’s bylaws to eliminate the classified structure effective in 2011 and provide for the annual election of all directors at that time. XTO Energy’s amended and restated bylaws provide that XTO Energy’s board of directors will be declassified in stages over a two-year period. XTO Energy’s board of directors will cease to be classified, and all directors will be elected annually, commencing with the election of directors at the annual meeting of stockholders to be held in 2011. The XTO    ExxonMobil does not have a classified board of directors. Each ExxonMobil director is elected at each annual meeting of stockholders and holds office until the next annual meeting and until his or her successor has been elected and qualified.

 

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Energy board of directors is currently divided into two classes, with three directors assigned to a class having a term that expires at the 2010 annual meeting of XTO Energy stockholders, and six directors assigned to a class having a term that expires at the 2011 annual meeting.

 

  
Election of Directors    The XTO Energy amended and restated bylaws provide that, in an uncontested election, each director will be elected by the vote of the majority of votes cast with respect to that director’s election, and that, in a contested election ( i.e. , an election in which the number of nominees exceeds the number of directors to be elected), each director will be elected by a plurality of votes cast. For purposes of the election of directors, a majority of the votes cast means the number of votes for that nominee exceeds the number of votes cast against that nominee (with abstentions and broker non-votes not counted as a vote cast either for or against that director’s election). XTO Energy’s Corporate Governance Guidelines (which can be found under the tab “Corporate Governance” of XTO Energy’s Internet web site, http://www.xtoenergy.com ) provide an advance resignation requirement for incumbent directors being nominated for re-election to the XTO Energy board of directors. This requirement provides that an incumbent director may become a nominee for further service on the XTO Energy board of directors only if the incumbent director submits an irrevocable resignation that is contingent upon (i) his or her not receiving a majority of the votes cast in an uncontested election and (ii) the XTO Energy board of director’s acceptance of such resignation. The corporate governance and nominating committee will recommend to the XTO Energy board of directors whether to accept or reject the resignation or whether other action should be taken. The XTO Energy board of directors will decide whether to accept or reject the resignation, taking into account the corporate governance and nominating committee’s recommendation, and make a public disclosure of its decision,    New Jersey law provides that except as otherwise provided in the corporation’s certificate of incorporation or by-laws, directors are elected by a plurality of the votes cast at an election. Because the ExxonMobil’s restated certificate of incorporation and by-laws include no additional provisions in this regard, New Jersey law applies without modification. This means that the director nominee with the most votes for a particular seat is elected for that seat. ExxonMobil’s corporate governance guidelines (which can be found under the tab “investors” and then under the tab “corporate governance” of ExxonMobil’s Internet web site, http://www.exxonmobil.com ) state that in any non-contested election of directors, any director nominee who receives a greater number of votes “withheld” from his or her election than votes “for” such election must tender his or her resignation. Within 90 days after certification of the election results, the ExxonMobil board of directors will decide, through a process managed by ExxonMobil’s Board Affairs Committee and excluding the nominee in question, whether to accept the resignation. Absent a compelling reason for the director to remain on the ExxonMobil board of directors, the ExxonMobil board of directors will accept the resignation. The ExxonMobil board of directors will promptly disclose its decision and, if applicable, the reasons for rejecting the tendered resignation on a Form 8-K filed with the SEC.

 

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including the rationale behind its decision if the resignation is rejected, within 90 days following the certification of election results.

 

  
Removal of Directors    Where a corporation does not have a classified board of directors, Delaware law provides that unless the corporation’s certificate of incorporation provides otherwise, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of the votes then entitled to vote on the election of directors. Under Delaware law, where there is a classified board of directors, any director may be removed only for cause, unless the corporation’s certificate of incorporation provides otherwise. Under the XTO Energy restated certificate of incorporation and amended and restated bylaws, XTO Energy stockholders may remove directors only for cause until the 2011 annual meeting of stockholders. Thereafter, stockholders may remove directors with or without cause by the affirmative vote of a majority of the voting power of the then outstanding shares entitled to vote.    New Jersey law allows shareholders to remove directors for cause or, unless the certificate of incorporation provides otherwise, without cause, in each case by the affirmative vote of the majority of votes cast by the holders of shares entitled to vote. Because the ExxonMobil restated certificate of incorporation includes no additional provisions in this regard, ExxonMobil shareholders may remove directors with or without cause. In addition, the ExxonMobil restated certificate of incorporation allows the removal of a director for cause by a majority of the directors then in office if, in the judgment of such majority, the director’s continuation in office would be harmful to the corporation. The ExxonMobil board of directors may suspend a director pending a final determination that cause for removal exists.
  

XTO Energy’s board of directors may remove an advisory director at any time, with or without cause.

 

  
Special Meetings of Stockholders or Shareholders    Under Delaware law, a special meeting of stockholders may be called by the board of directors or by any other person authorized to do so in the corporation’s certificate of incorporation or bylaws.    Under New Jersey law, holders of at least 10% of the shares of a corporation entitled to vote may apply to the New Jersey Superior Court to request that a special meeting of shareholders be called for good cause shown. At such a meeting, the shareholders present in person or by proxy and having voting powers will constitute a quorum for the transaction of business as may be designated in the order of the court.
   XTO Energy’s amended and restated bylaws provide that special meetings may be called by (i) the chairman of the board of directors, (ii) the chief executive officer, (iii) the president or (iv) the board of directors or the corporate secretary at the written request of holders of 80% or more of the voting power of the then outstanding shares of XTO Energy capital stock entitled to vote in the election of directors, acting together as a single class.    In addition, ExxonMobil’s by-laws provide that special meetings of shareholders may be called by (i) the board of directors, (ii) the chairman of the board of directors or (iii) the president.

 

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Notice of Stockholder or Shareholder Proposals and Nominations of Director Candidates by Stockholders or Shareholders    Under Delaware law, the notice of the annual meeting is not required to state the purpose or purposes of the annual meeting.   

New Jersey law requires that the written notice of any annual meeting specify the purpose or purposes of the meeting. Therefore, business conducted at an ExxonMobil annual shareholder meeting is limited to the business specified in the meeting notice.

 

   The XTO Energy amended and restated bylaws generally permit stockholders to nominate director candidates if the stockholder intending to make such nomination gives timely notice thereof in writing in proper form. To be timely, the XTO Energy amended and restated bylaws require, subject to certain limited exceptions, that written notice of an intention to nominate a director candidate be received by the XTO Energy board of directors, with a copy to the president and the corporate secretary of XTO Energy, not later than 120 days in advance of the scheduled date for the next annual meeting date. To be in proper form, the XTO Energy amended and restated bylaws require that such notice include, among other things, certain disclosures about (i) the director nominee, including all information that would be required to be disclosed in a proxy filing, any agreements, arrangements and understandings between the nominee and the proposing stockholder relating to the proposed nomination or XTO Energy and (ii) the stockholder making such nomination, including all ownership interests (including derivatives) and rights to vote any security of XTO Energy. Such notice must also contain the written consent of the proposed nominee to be named in the proxy statement as a nominee and to serve as a director if elected.    The ExxonMobil restated certificate of incorporation and by-laws do not contain any provisions that govern the submission of director nominations or other proposals by shareholders.
   XTO Energy’s amended and restated bylaws allow for business to be properly brought before an annual meeting of XTO Energy by a stockholder (other than proposals with respect to the proposed nomination of director candidates or proposals subject to Rule 14a-8 under the Exchange Act), if the stockholder intending to propose the business gives timely notice thereof in writing in proper form to the corporate secretary of   

 

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XTO Energy. To be timely, a stockholder’s notice must be received by the corporate secretary of the company, subject to certain limited exceptions, not less than 90 days, or more than 120 days, before the anniversary date of the immediately preceding annual meeting of stockholders. To be in proper form, the XTO Energy amended and restated bylaws require that such notice include, among other things, certain disclosures about (i) the proposal, including all information that would be required to be disclosed in a proxy filing, any agreements, arrangements and understandings between the proposing stockholder and any other persons relating to the proposal or XTO Energy and (ii) the stockholder making such proposal, including all ownership interests (including derivatives), rights to vote any security of XTO Energy and any material interest of the stockholder in such business, as well as the text of any resolutions proposed for consideration.

 

  
Stockholder or Shareholder Action Without a Meeting    Delaware law provides that, except as otherwise stated in the certificate of incorporation, stockholders may act by written consent without a meeting. However, the XTO Energy restated certificate of incorporation provides that XTO Energy stockholders may only take action without a meeting by unanimous written consent.    New Jersey law provides that, except as otherwise stated in the certificate of incorporation, shareholders who would have been entitled to cast the minimum number of votes that would be necessary to authorize a permitted or required action at a meeting at which all shareholders entitled to vote were present and voting may act by written consent without a meeting, except in regard to the annual election of directors, which may be by written consent only if unanimous. The ExxonMobil restated certificate of incorporation does not provide otherwise. New Jersey law also provides that such shareholder action may not take effect unless the corporation gives all non-consenting shareholders advance notice of the action consented to, the proposed effective date of the action, and any conditions precedent to such action. Also, under New Jersey law, if the action gives rise to dissenters’ rights, the board of directors must fix a date for the tabulation of consents.

 

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Amendments to Certificate of Incorporation   

Delaware law generally provides that amendments to the certificate of incorporation must be approved by the board of directors and then adopted by the vote of a majority of the outstanding voting power entitled to vote thereon, unless the certificate of incorporation requires a greater vote. Under XTO Energy’s restated certificate of incorporation, amendments to XTO Energy’s certificate of incorporation generally may be made in accordance with the default positions of Delaware law. However, the XTO Energy restated certificate of incorporation requires the vote of 80% of the voting power of the shares entitled to vote in the election of directors in order to amend certain provisions of the XTO Energy restated certificate of incorporation, including provisions relating to (i) the number, election or term of directors (other than any increase in the maximum number of directors to more than 21, which may be amended by the vote of the holders of a majority or more of the XTO Energy shares entitled to vote thereon), (ii) stockholder nomination of director candidates, (iii) filling newly created directorships resulting from an increase in the authorized number of directors and any vacancies on the board of directors and (iv) stockholder action by written consent in lieu of a meeting.

 

   New Jersey law provides that a corporation may amend its certificate of incorporation, from time to time, in any and as many respects as may be desired so long as the amendment contains only such provisions as might lawfully be contained in an original certificate of incorporation filed at the time of making such amendment. In accordance with New Jersey law, the ExxonMobil restated certificate of incorporation provides that upon the approval of a proposed amendment to the certificate of incorporation by a majority of the board of directors, shareholders may adopt such amendment by the affirmative vote of a majority of the votes cast by holders of shares entitled to vote.
Amendments to By-laws    Under Delaware law, stockholders of a corporation entitled to vote and, if so provided in the certificate of incorporation, the directors of the corporation, each have the power, separately, to adopt, amend and repeal the bylaws of a corporation. XTO Energy’s restated certificate of incorporation provides that the board of directors is expressly authorized to make, alter or repeal XTO Energy’s amended and restated bylaws. XTO Energy’s amended and restated bylaws may also be adopted, amended and repealed by the stockholders. However, under XTO Energy’s certificate of incorporation, the affirmative vote of the holders of 80% or more of the voting power of all of the XTO Energy shares entitled to vote generally in the election of directors,    Under New Jersey law, the initial by-laws of a corporation are adopted by the board of directors at its organization meeting. Thereafter, the board of directors has the power to make, alter and repeal by-laws unless such power is reserved to the shareholders in the certificate of incorporation, but by-laws made by the board of directors may be altered or repealed, and new by-laws made, by the shareholders. The shareholders may prescribe in the by-laws that any by-law made by them may not be altered or repealed by the board of directors. Whenever any amendment to the by-laws, other than as regards the election of directors, is to be taken by vote of the shareholders, it must be authorized by a majority of the votes cast at

 

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voting together as a single class, is required

for stockholders to amend any bylaw provision in a manner that would be inconsistent with the provisions of XTO Energy’s restated certificate of incorporation relating to (i) the number, election or term of directors, (ii) stockholder nomination of director candidates, (iii) filling newly created directorships resulting from an increase in the authorized number of directors and any vacancies on the board of directors or (iv) stockholder action by written consent in lieu of a meeting.

 

  

a meeting of shareholders by the holders of shares entitled to vote thereon, unless a greater plurality is required by the certificate of incorporation or New Jersey law. ExxonMobil’s by-laws give the board of directors the power to make, alter and repeal the by-laws, but by-laws made by the board may be altered or repealed, and new by-laws made, by the shareholders. ExxonMobil’s restated certificate of incorporation does not contain any provision requiring a greater vote of shareholders to amend any of its by-law provisions.

 

Anti-Takeover Provisions    Delaware law provides that, if a person acquires 15% or more of the stock of a Delaware corporation without the approval of the board of directors of that corporation, thereby becoming an “interested stockholder”, that person may not engage in certain transactions, including mergers, with the corporation for a period of three years unless one of the following exceptions applies: (i) the board of directors approved the acquisition of stock or the transaction prior to the time that the person became an interested stockholder; (ii) the person became an interested stockholder and 85% owner of the voting stock of the corporation in the transaction, excluding voting stock owned by directors who are also officers and certain employee stock plans; or (iii) the transaction is approved by the board of directors and by the affirmative vote of two-thirds of the outstanding voting stock which is not owned by the interested stockholder.    New Jersey law restricts the ability of certain persons to acquire control of a New Jersey corporation. In general, a corporation organized under the laws of New Jersey with its principal executive offices or significant business operations located in New Jersey (a “resident domestic corporation”) may not engage in a “business combination” with an “interested shareholder” for a period of five years following the interested shareholder’s becoming such unless the business combination is approved by the board of directors prior to the stock acquisition date. Covered business combinations include certain mergers, dispositions of assets or shares and recapitalizations. An interested shareholder is generally a shareholder owning at least 10% of the voting power of a corporation’s outstanding shares. In addition, after the prohibition during the first five years, a resident domestic corporation may not engage in a business combination with the interested shareholder other than (i) a business combination approved by the affirmative vote of the holders of two-thirds of the voting stock not beneficially owned by such interested shareholder at a meeting for such purpose or (ii) a business combination in which the interested shareholder pays a formula price designed to ensure that all other shareholders receive at least the highest price per share paid by such interested shareholder from the date the entity became an interested shareholder.

 

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   A Delaware corporation may elect not to be governed by this provision of Delaware law. XTO Energy has not elected out of this provision.    A resident domestic corporation may not opt out of the foregoing provisions.
  

Other than for the super-majority voting requirements relating to amendments to certain provisions of XTO Energy’s restated certificate of incorporation described above, there is no super-majority voting, fair price or similar provision in the XTO Energy restated certificate of incorporation.

 

   There is no super-majority voting, fair price or similar provision in the ExxonMobil restated certificate of incorporation.
Appraisal Rights    Under Delaware law, a stockholder of a Delaware corporation is generally entitled to demand appraisal of the fair value of his or her shares in the event the corporation is a party to a merger or consolidation, subject to specified exceptions.    Under New Jersey law, appraisal rights are available in connection with (i) a merger or consolidation to which the corporation is a party, (ii) any sale, lease or exchange or other disposition of all or substantially all of a corporation’s assets other than in the usual and regular course of business or (iii) an acquisition of some or all of the outstanding shares or assets of a legal entity, either directly or through a subsidiary, in exchange for the corporation’s shares (a “share exchange”) if, as a result of the share exchange, the number of voting or participating shares issued in connection with the share exchange, when combined with shares already outstanding, would exceed by more than 40 percent the number of those shares outstanding immediately before the share exchange, unless an exception applies. A New Jersey corporation may provide in its certificate of incorporation that shareholders will have appraisal rights even in cases where the exceptions to the availability of appraisal rights discussed below exist. ExxonMobil’s restated certificate of incorporation does not so provide.
  

Delaware law does not confer appraisal rights to stockholders if the corporation’s shares are:

 

•     listed on a national securities exchange;

 

•     held of record by more than 2,000 holders; or

 

•     shares of the corporation surviving or resulting from the merger or consolidation if the merger did not

  

New Jersey law does not confer appraisal rights to stockholders in connection with:

 

•     A merger or consolidation in which the corporation is a party if the merger does not require shareholder approval. Under New Jersey law shareholder approval for a merger or consolidation is required if the merger amends the certificate of incorporation, affects the outstanding shares of the surviving

 

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require the vote of the stockholders of the surviving or resulting corporation for the approval of the merger under Delaware law.

 

Even if these exceptions to appraisal rights apply, the holders of such shares will have appraisal rights if they are required to accept in the merger any consideration in exchange for such shares other than:

 

•     shares of stock of the corporation surviving or resulting from the merger or consolidation;

 

•     shares of stock of any other corporation that will be either listed on a national securities exchange or held of record by more than 2,000 holders;

 

•     cash in lieu of fractional shares; or

 

•     any combination of the foregoing.

 

The certificate of incorporation of a Delaware corporation may provide appraisal rights for stockholders upon an amendment to a corporation’s certificate of incorporation, any merger in which the corporation is a constituent or a sale of all or substantially all of the assets of the corporation.

 

The XTO Energy stockholders are not entitled to appraisal rights under Delaware law or under XTO Energy’s restated certificate of incorporation in connection with the merger.

  

corporation or, if the number of voting or participating shares issued in connection with the merger or consolidation, when combined with shares already outstanding, would exceed by more than 40 percent the number of those shares outstanding immediately before the merger.

 

•     The merger of the corporation into a wholly owned subsidiary if certain conditions are met.

 

•     (i) A merger or consolidation in which the corporation is a party or (ii) a share exchange if (i) the shares held by the corporation’s shareholders are listed on a national securities exchange or are held of record by at least 1,000 holders or (ii) in the case of a merger or consolidation, the corporation’s shareholders will receive (a) cash, (b) shares, obligations or other securities that will either be listed on a national securities exchange or held of record by not less than 1,000 holders or (c) a combination thereof.

 

•     A sale, lease, exchange or other disposition of all or substantially all of a corporation’s assets if the shares held by the corporation’s shareholders are listed on a national securities exchange or are held of record by at least 1,000 holders.

 

•     A dissolution transaction in which substantially all of a corporation’s net assets are to be distributed to its shareholders within one year after the date of the transaction, so long as the transaction is wholly for cash, shares, obligations or other securities which will be listed on a national securities exchange or held of record by not less than 1,000 holders or a combination thereof.

 

Directors’ and Officers’ Liability and Indemnification    The XTO Energy restated certificate of incorporation limits the liability of XTO Energy directors, except for liability (i) for a breach of the director’s duty of loyalty to XTO Energy or its stockholders, (ii) for acts    The ExxonMobil restated certificate of incorporation limits the liability of the directors and officers of ExxonMobil to the fullest extent permitted by law. New Jersey law permits a domestic corporation to

 

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   or omissions not in good faith or which involved intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporate Law (which creates liability for unlawful payment of dividends and unlawful stock purchases or redemptions) or (iv) for any transaction from which the director derived an improper personal benefit.    eliminate the liability of directors or officers to the corporation or its shareholders for the breach of any duty owed to the corporation or its shareholders, except for any breach of duty based upon an act or omission (i) in breach of such person’s duty of loyalty to the corporation or its shareholders, (ii) not in good faith or involving a knowing violation of law or (iii) resulting in receipt by the person of an improper personal benefit. In this context, an act or omission in breach of a director or officer’s duty of loyalty is defined as an act or omission which the director or officer knows or believes to be contrary to the best interests of the corporation or its shareholders in connection with a matter in which the director or officer has a material conflict of interest.
   The XTO Energy amended and restated bylaws provide for (i) the indemnification of its current or former directors, advisory directors and officers (or any other person who is or was serving at the request of XTO Energy in the capacity of director, advisory director, officer, employee or agent for another entity) to the fullest extent permitted by law, and (ii) the advancement of expenses (including attorneys’ fees) to the fullest extent not prohibited by law upon receipt, to the extent required by law, of an undertaking to repay such amounts if it is ultimately determined that the indemnified person is not entitled to indemnification.    The ExxonMobil by-laws provide for (i) the indemnification of its current or former directors and officers to the fullest extent permitted by law, and (ii) the advancement of expenses (including attorneys’ fees) upon receipt of an undertaking to repay such amounts if it is ultimately determined that the director or officer is not entitled to indemnification.
   Delaware law provides that, subject to certain limitations in the case of derivative suits brought by a corporation’s stockholders in its name, a corporation may indemnify any person who is made a party to any third-party action, suit or proceeding (other than an action by or in the right of the corporation) on account of being a current or former director, officer, employee or agent of the corporation (or is or was serving at the request of the corporation in such capacity for another corporation, partnership, joint venture, trust or other enterprise) against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the action,    New Jersey law provides that a domestic corporation may indemnify a corporate agent (generally defined as any person who is or was a director, officer, employee or agent of the corporation or of any constituent corporation absorbed by the corporation in a consolidation or merger and any person who is or was a director, officer, trustee, employee or agent of any other enterprise, serving as such at the request of the corporation or the legal representative of any such director, officer, trustee, employee or agent) against such person’s expenses and liabilities in connection with any proceeding involving the corporate agent by reason of being or having been such a corporate agent (other than a proceeding by or in the right of

 

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   suit or proceeding if the person (i) acted in good faith and in a manner reasonably believed to be in the best interests of the corporation (or in some circumstances, at least not opposed to its best interests), and (ii) in a criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.    the corporation) if the corporate agent (i) acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation; and (ii) with respect to any criminal proceeding, such corporate agent had no reasonable cause to believe his conduct was unlawful.
   Delaware law also permits a corporation to indemnify any person who is made a party to any third-party action, suit or proceeding (other than an action by or in the right of the corporation) on account of being a current or former director, officer, employee or agent of the corporation (or is or was serving at the request of the corporation in such capacity for another corporation, partnership, joint venture, trust or other enterprise) against expenses (including attorneys’ fees) actually and reasonably incurred by such persons in connection with the defense or settlement of a derivative action or suit, except that no indemnification may be made in respect of any claim, issue or matter as to which the person is adjudged to be liable to the corporation unless the Delaware Court of Chancery or the court in which the action or suit was brought determines upon application that the person is fairly and reasonably entitled to indemnity for the expenses which the court deems to be proper.    New Jersey law also permits indemnification of a corporate agent against expenses incurred in connection with a derivative action or suit which involves the corporate agent, if the corporate agent acted in good faith and in a manner the corporate agent reasonably believed to be in or not opposed to the best interests of the corporation. However, no indemnification shall be provided in respect of any claim, issue or matter as to which the corporate agent is adjudged to be liable to the corporation, unless and only to the extent that the Superior Court of the State of New Jersey (or the court in which the proceeding was brought) determines upon application that the corporate agent is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
   To the extent that a current or former director or officer is successful on the merits or otherwise in the defense of such an action, suit or proceeding, the corporation is required by Delaware law to indemnify such person for expenses actually and reasonably incurred thereby.    New Jersey law requires a corporation to indemnify a corporate agent for such corporate agent’s expenses to the extent that such corporate agent has been successful on the merits or otherwise in any proceeding referred to above, or in defense of any claim, issue or matter therein. Except as required by the previous sentence, no indemnification may be made or expenses advanced, and none may be ordered by a court, if such indemnification or advancement would be inconsistent with (i) a provision of the corporation’s certificate of incorporation, (ii) its by-laws, (iii) a resolution of the board of directors or of the corporation’s shareholders, (iv) an agreement to which the corporation is a party or (v) other proper corporate action in effect at the time of the

 

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      accrual of the alleged cause of action asserted in the proceeding, which prohibits, limits or otherwise conditions the exercise of indemnification powers by the corporation or the rights of indemnification to which a corporate agent may be entitled.
   The indemnification and advancement of expenses provided by Delaware law do not exclude any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise.    The indemnification and advancement of expenses permitted by New Jersey law do not exclude any other rights to which the corporate agent may be entitled under a provision of the corporation’s certificate of incorporation, its bylaws, agreement, vote of shareholders, or otherwise; provided that no indemnification is permitted if a judgment or other final adjudication adverse to the corporate agent establishes that the corporate agent’s acts or omissions (i) were in breach of his duty of loyalty to the corporation or its shareholders, (ii) were not in good faith or involving a knowing violation of law or (iii) resulted in receipt by the corporate agent of an improper personal benefit.
   Expenses (including attorneys’ fees) incurred by such persons in defending any action, suit or proceeding may be paid in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of that person to repay the amount if it is ultimately determined that person is not entitled to be so indemnified.    Expenses incurred by a corporate agent in any proceeding may be paid in advance of the final disposition of such proceeding as authorized by the board of directors upon receipt of an undertaking by or on behalf of the corporate agent to repay such amount if it is ultimately determined that the corporate agent is not entitled to be so indemnified.

Certain Similarities in Shareholder Rights

 

    

XTO Energy Stockholder Rights

  

ExxonMobil Shareholder Rights

Voting Rights   

Each holder of XTO Energy common stock is entitled to one vote per share of XTO Energy common stock.

 

   Each holder of ExxonMobil common stock is entitled to one vote per share of ExxonMobil common stock.
Cumulative Voting   

Under Delaware law, stockholders of a Delaware corporation do not have the right to cumulate their votes in the election of directors unless that right is granted in the certificate of incorporation of the corporation. The XTO Energy restated certificate of incorporation does not permit cumulative voting.

 

   Under New Jersey law, shareholders of a New Jersey corporation do not have the right to cumulate their votes in the election of directors unless that right is granted in the certificate of incorporation of the corporation. The ExxonMobil restated certificate of incorporation does not permit cumulative voting.
Quorum    The XTO Energy amended and restated bylaws provide that the presence in person or    The ExxonMobil by-laws provide that the presence in person or by proxy at a meeting

 

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by proxy at a meeting of the holders of a majority in voting power of the XTO Energy capital stock entitled to vote at the meeting is a quorum.

 

   of the holders of shares entitled to cast a majority of votes at the meeting is a quorum.
Filling of Vacancies on the Board of Directors    XTO Energy’s amended and restated bylaws provide that newly created directorships resulting from any increase in the authorized number of directors and any vacancies occurring on the XTO Energy board of directors, however caused, may be filled by the affirmative vote of a majority of the remaining directors even though less than a quorum, or by a sole remaining director.    Any vacancy occurring on the ExxonMobil board of directors, however caused, may be filled by the affirmative vote of a majority of the remaining directors even though less than a quorum, or by a sole remaining director.
  

Under Delaware Law, if there are no directors in office, then any officer or any stockholder or executor, administrator, trustee or guardian of a stockholder, or other fiduciary entrusted with like responsibility for the person or estate of a stockholder, may call a special meeting of stockholders in accordance with XTO Energy’s certificate of incorporation or bylaws or may apply to the Court of Chancery for a decree summarily ordering an election.

 

  

Under New Jersey Law, if there are no directors in office, any shareholder or the executor or administrator of a deceased shareholder may call a special meeting of shareholders for the election of directors and, over his own signature, shall give notice of said meeting in accordance with New Jersey law and as described below under “—Notice of Special Meetings.”

Notice of Special Meetings    XTO Energy’s amended and restated bylaws provide that, except as otherwise provided by law, written notice of every meeting of stockholders must be given not less than 10 nor more than 60 days before the date of the meeting.    ExxonMobil’s by-laws provide that, except as otherwise provided by statute, written notice of every meeting of shareholders must be given not less than 10 nor more than 60 days before the date of the meeting.
  

Under Delaware law, the written notice of the special meeting must set forth the purpose or purposes for which the meeting is called. Under XTO Energy’s amended and restated bylaws, the business to be transacted at an XTO Energy special meeting of stockholders is limited to the purposes stated in the notice of meeting.

 

   New Jersey law requires that the written notice of any shareholder meeting specify the purpose or purposes of the meeting. Under the ExxonMobil by-laws, business conducted at shareholder meetings is limited to the business specified in the meeting notice.
Preemptive Rights    Under Delaware law, stockholders of a corporation do not have preemptive rights to subscribe to an additional issue of stock or to any security convertible into such stock, unless such right is expressly included in the certificate of incorporation. Because the XTO Energy restated certificate of incorporation does not include any provision in this regard, holders of XTO Energy shares do not have preemptive rights.    Under New Jersey law, shareholders of corporations organized prior to January 1, 1969 have preemptive rights unless the certificate of incorporation provides otherwise. ExxonMobil’s restated certificate of incorporation provides that shareholders do not have preemptive rights.

 

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Dividends   

Delaware law generally provides that, subject to certain restrictions, the directors of every corporation may declare and pay dividends upon the shares of its capital stock either out of its surplus or, in case there shall be no such surplus, out of its net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year.

 

   New Jersey law generally provides that a corporation may pay dividends unless (i) the corporation would not be able to pay its debts as they become due in the usual course of business or (ii) the corporation’s total assets would be less than its total liabilities.
Repurchase of Shares   

Delaware law provides that a corporation may generally redeem or repurchase shares of its stock unless the capital of the corporation is impaired or such redemption or repurchase would impair the capital of the corporation.

 

  

New Jersey law provides that a corporation may generally acquire its own shares subject to restrictions in its own certificate of incorporation. ExxonMobil’s restated certificate of incorporation does not impose any restrictions on the repurchase of shares.

 

Stockholder or Shareholder Vote on Fundamental Issues or Extraordinary Corporate Transactions    Under Delaware law, a sale or other disposition of all or substantially all of a corporation’s assets, a merger or consolidation of a corporation with another corporation or a dissolution of a corporation generally requires the affirmative vote of the corporation’s board of directors and, with limited exceptions, the affirmative vote of a majority of the aggregate voting power of the outstanding stock entitled to vote on the transaction. Because the XTO Energy restated certificate of incorporation and amended and restated bylaws include no additional provisions in this regard, Delaware law applies without modification.    New Jersey law provides that in the case of a corporation organized prior to January 1, 1969, a sale, lease, exchange or other disposition of all or substantially all of a corporation’s assets not in the usual and regular course of its business, a merger or consolidation of a corporation with another corporation or a dissolution of a corporation generally requires the affirmative vote of the corporation’s board of directors and the affirmative vote of two-thirds of the votes so cast by shareholders entitled to vote thereon, unless the corporation adopts by the affirmative vote of two-thirds of the votes cast by the holders of shares entitled to vote thereon a majority voting requirement. ExxonMobil shareholders have previously adopted a majority voting requirement by the requisite shareholder approval, and the ExxonMobil restated certificate of incorporation provides that the following shareholder actions may be taken by the affirmative vote of a majority of the votes cast by the holders of shares of the corporation entitled to vote: (i) the adoption by shareholders of a proposed plan of merger or consolidation; (ii) the approval by shareholders of a sale, lease, exchange, or other disposition of all, or substantially all, of the assets of the corporation otherwise than in the usual and regular course of business as conducted by the corporation; and (iii) dissolution of the corporation.

 

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Stockholder or Shareholder Rights Plan    XTO Energy currently has no stockholder rights plan. XTO Energy’s previous stockholder rights plan expired by its terms in August 2008. Notwithstanding the expiration of the stockholder rights plan and subject to the restrictions contained in the merger agreement, the XTO Energy board of directors could, pursuant to its authority to issue preferred stock, adopt a stockholders rights plan without stockholder approval at any future time.    ExxonMobil does not have a shareholder rights plan. While ExxonMobil has no present intention to adopt a shareholder rights plan, the ExxonMobil board of directors, pursuant to its authority to issue preferred stock, could do so without shareholder approval at any future time. See “Description of ExxonMobil Capital Stock—Description of Preferred Stock—Blank Check Preferred Stock” beginning on page [ ] of this proxy statement/prospectus. ExxonMobil’s board of directors has adopted a Policy Statement on Poison Pills, available on ExxonMobil’s Internet web site, http://www.exxonmobil.com , under the tab “investors,” then under the tab “corporate governance,” then the tab “additional policies and guidelines.” Under this policy, ExxonMobil undertakes that, if it ever were to adopt a shareholder rights plan, the board of directors would seek prior shareholder approval unless, due to timing or other reasons, a committee of independent directors determines that it would be in the best interest of shareholders to adopt a plan before obtaining shareholder approval. In that event, the plan must either be ratified by shareholders or must expire within one year.

 

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