Annual Meetings. (i) Subject to Article IX of these By-Laws, nominations of persons for election to the Board of Directors and the proposal of other business to be considered by the shareholders may be made at an Annual Meeting (A) pursuant to the Corporation’s notice of meeting, (B) by or at the direction of the Board of Directors, (C) by any shareholder of the Corporation who (1) is a shareholder of record at the time of giving of notice provided for in this Section 5(a) and until and at the time of the Annual Meeting, (2) is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) complies with the notice procedures set forth in this Section 5(a) as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) shall be the exclusive means for a shareholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in the Corporation’s notice of meeting) before an Annual Meeting. (ii) For nominations or any other business to be properly brought before an Annual Meeting by a shareholder pursuant to the foregoing Section 5(a)(i)(C), the shareholder must have given timely notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder action. To be timely, a shareholder’s notice shall be received by the Secretary at the principal offices of the Corporation not less than forty-five days nor more than seventy days prior to the first annual anniversary of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”); provided, however, that if the date for which the Annual Meeting is called is more than thirty days before or more than thirty days after the first annual anniversary of the immediately preceding Annual Meeting, then notice by the shareholder to be timely must be received by the Secretary not earlier than the close of business on the 100th day prior to the date of such Annual Meeting and not later than the later of (A) the 75th day prior to the date of such Annual Meeting or (B) the 10th day following the day on which public announcement of the date of such Annual Meeting is first made. In no event shall any adjournment or postponement of an Annual Meeting or the announcement thereof commence a new time period for the giving of a shareholder notice as described above. Such shareholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (I) the name and address of such shareholder (as they appear on the Corporation’s books) and any such beneficial owner; (II) the Share Information (which Share Information required by this clause (II) shall be supplemented by such shareholder and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (III) a representation that such shareholder is a holder of record of shares of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) in the case of any proposed nomination for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal of such business by such shareholder. In the case of any proposed nomination for election or re-election as a director, the Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nominee.
Appears in 2 contracts
Samples: Merger Agreement (Fiserv Inc), Merger Agreement (First Data Corp)
Annual Meetings. The annual meeting of the stockholders for the election of directors and for the transaction of any other business properly presented for action at such meeting shall be held on the second Thursday in May of each year or on such other day as may be fixed by resolution of the Board; provided, however, that if the Board deems it impracticable to hold the meeting on the date originally determined, such annual meeting shall be held as soon as practicable after such date on a date to be specified in a resolution of the Board. At an annual meeting, only such business shall be conducted, and only such proposals shall be acted upon, as shall have been brought before the annual meeting (i) Subject to Article IX of these By-Lawsby, nominations of persons for election to the Board of Directors and the proposal of other business to be considered by the shareholders may be made at an Annual Meeting (A) pursuant to the Corporation’s notice of meeting, (B) by or at the direction of of, the Board of Directors, or (Cii) by any shareholder stockholder of the Corporation who (1) is a shareholder of record at the time of giving of notice provided for in this Section 5(a) and until and at the time of the Annual Meeting, (2) is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) complies with the notice procedures set forth in this Section 5(a) as to such nomination or other business or (D) 2 or, with respect to nominations by any shareholder the election of the Corporation who is eligible under, and complies with the notice procedures set forth indirectors, Section 14 11 of this Article IIIII of these By-Laws. The preceding clauses (C) and (D) shall be the exclusive means for For a shareholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in the Corporation’s notice of meeting) before an Annual Meeting.
(ii) For nominations or any other business proposal to be properly brought before an Annual Meeting annual meeting by a shareholder pursuant to the foregoing Section 5(a)(i)(C)stockholder, the shareholder stockholder must have given timely notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder actionof the Corporation. To be timely, a shareholderstockholder’s notice shall must be delivered to, or mailed and received by the Secretary at at, the principal executive offices of the Corporation not less than forty-five 120 calendar days nor more than seventy 150 calendar days prior to before the first annual anniversary date of the date set forth in the Corporationcorporation’s proxy statement for released to stockholders in connection with the immediately preceding Annual Meeting as prior year’s annual meeting. However, if no annual meeting was held in the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”); providedprevious year, however, that or if the date for which of the Annual Meeting is called is applicable annual meeting has been changed by more than thirty 30 days before or more than thirty days after from the first annual anniversary date contemplated at the time of the immediately preceding Annual Meetingprevious year’s proxy statement, then a stockholder’s notice by the shareholder to be timely must be received by the Secretary not earlier later than the close of business on the 100th day prior to 60 days before the date the Corporation commences mailing of such Annual Meeting and not later than its proxy materials in connection with the later of (A) the 75th day prior to the date of such Annual Meeting or (B) the 10th day following the day on which public announcement of the date of such Annual Meeting is first madeapplicable annual meeting. In no event shall any adjournment or postponement the public announcement of an Annual Meeting or the announcement thereof adjournment of an annual meeting commence a new time period for the giving of a shareholder stockholder’s notice as described above. Such shareholderA stockholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall set forth as to each matter the stockholder proposes to bring before the annual meeting (i) a brief description of the proposal desired to be signed by brought before the shareholder annual meeting, including the complete text of record who intends any resolutions intended to make be submitted at the nomination or introduce annual meeting and the other reasons for conducting such business and by at the beneficial owner or ownersannual meeting, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (Iii) the name and address of such shareholder (address, as they appear on the Corporation’s books) , of the stockholder proposing such matter and any other stockholders known by such beneficial owner; stockholder to be supporting such proposal, (IIiii) the Share Information (which Share Information required by this clause (II) shall be supplemented by such shareholder class and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (III) a representation that such shareholder is a holder of record number of shares of the Corporation entitled Corporation’s stock which are beneficially owned by the stockholder on the date of such stockholder’s notice and by any other stockholders known by such stockholder to vote under be supporting such proposal on the Articles date of Incorporation at such meeting with respect stockholder’s notice, and (iv) any financial interest of the stockholder in such proposal. In addition, a stockholder seeking to submit such nomination or other business and intends to appear in person or by proxy proposal at the meeting to make such nomination or introduce such other business; (IV) shall promptly provide any other information relating to such shareholder and reasonably requested by the Corporation. Except as otherwise provided by law, at any such beneficial owner that would be required to be disclosed in time following the Corporation’s receipt of a proxy statement proposal, the Chairman of the Board (or other filings required presiding officer at an annual meeting) shall have the power to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) in the case of determine whether any matter proposed nomination for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before the annual meeting andwas proposed in accordance with the notice procedures set forth in this Section 2 and if any proposal is not in compliance with this Section 2, if the Chairman of the Board (or such business includes other presiding officer) may exclude such proposal from the annual meeting. Notwithstanding the forgoing provisions of this Section 2, a stockholder who seeks to have any proposal included in the Corporation’s proxy materials shall comply with the requirements of Rule 14a-8 of Regulation 14A under the Securities Exchange Act of 1934, as amended. In the event a proposal to amend these By-Lawsis presented for action at such annual meeting which, in the language opinion of the proposed amendment, (2) ranking executive officer of the reasons of Corporation attending such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business requires the giving of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal prior notice of such business by to stockholders, no action shall be taken on such shareholder. In the case proposal at such meeting unless and until proof of any proposed nomination for election or re-election as a director, the Corporation may require any proposed nominee to furnish timely and adequate notice of such other information as may reasonably be required proposal shall have been filed with and accepted by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director ranking executive officer of the Corporation or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of attending such nomineemeeting.
Appears in 2 contracts
Samples: Merger Agreement (Holly Corp), Merger Agreement (Frontier Oil Corp /New/)
Annual Meetings. (i) Subject to Article IX The annual meeting of these By-Laws, nominations of persons for election to stockholders shall be held on such date and at such time as may be fixed by the Board of Directors and stated in the proposal notice of the meeting, for the purpose of electing directors and for the transaction of only such other business to be considered by as is properly brought before the shareholders may be made at an Annual Meeting meeting in accordance with these Bylaws (A) pursuant to the Corporation’s “Bylaws”). Written notice of an annual meeting stating the place, date and hour of the meeting, shall be given to each stockholder entitled to vote at such meeting not less than ten (B10) nor more than sixty (60) days before the date of the annual meeting. To be properly brought before the annual meeting, business must be either (i) specified in the notice of annual meeting (or any supplement or amendment thereto) given by or at the direction of the Board of Directors, (Cii) otherwise brought before the annual meeting by any shareholder or at the direction of the Corporation Board of Directors, or (iii) otherwise properly brought before the annual meeting by a stockholder who (1) is a shareholder stockholder of record at the time of giving of the notice provided for in this Article II, Section 5(a) and until and at 2.2 is delivered to the time Secretary of the Annual MeetingCorporation, (2) who is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) who complies with the notice procedures set forth in this Section 5(a) as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth inArticle II, Section 14 of this Article II2.2. The preceding clauses (C) and (D) shall be the exclusive means for a shareholder In addition to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in the Corporation’s notice of meeting) before an Annual Meeting.
(ii) For nominations or any other applicable requirements, for business to be properly brought before an Annual Meeting annual meeting by a shareholder pursuant to the foregoing Section 5(a)(i)(C)stockholder, the shareholder stockholder must have given timely notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder actionof the Corporation. To be timely, a shareholderstockholder’s notice shall must be received by delivered to the Secretary at the principal executive offices of the Corporation not less later than forty-five days the close of business on the 90th day nor more earlier than seventy days the close of business on the 120th day prior to the first annual anniversary of the date set forth in the Corporationpreceding year’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”)annual meeting; provided, however, that if in the event that the date for which of the Annual Meeting is called annual meeting is more than thirty 30 days before or more than thirty days after such anniversary date, or if no annual meeting was held in the first annual anniversary of the immediately preceding Annual Meetingyear, then notice by the shareholder stockholder to be timely must be received by the Secretary so delivered not earlier than the close of business on the 100th 120th day prior to the date of such Annual Meeting annual meeting and not later than the close of business on the later of (A) the 75th 90th day prior to the date of such Annual Meeting annual meeting or (B) the 10th day following the day date on which public announcement of the date of such Annual Meeting meeting is first mademade by the Corporation. In no event shall any an adjournment or recess of an annual meeting, or a postponement of an Annual Meeting annual meeting for which notice of the meeting has already been given to stockholders or a public announcement of the announcement thereof meeting date has already been made, commence a new time period (or extend any time period) for the giving of a shareholder stockholder’s notice as described above. Such shareholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (I) the name and address of such shareholder (as they appear on the Corporation’s books) and any such beneficial owner; (II) the Share Information (which Share Information required by this clause (II) shall be supplemented by such shareholder and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (III) a representation that such shareholder is a holder of record of shares of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) in the case of any proposed nomination for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal of such business by such shareholder. In the case of any proposed nomination for election or re-election as a director, the Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nominee.
Appears in 2 contracts
Samples: Business Combination Agreement (HighPeak Energy, Inc.), Business Combination Agreement (Pure Acquisition Corp.)
Annual Meetings. (ia) Subject to Article IX The annual meeting of these By-Laws, nominations of persons for election to stockholders shall be held on such date and at such time as may be fixed by the Board of Directors and stated in the proposal notice of the meeting, for the purpose of electing directors and for the transaction of only such other business as is properly brought before the meeting in accordance with these Bylaws (the “Bylaws”). Except as otherwise required by law, written notice of an annual meeting stating the place, date and hour of the meeting, shall be given to be considered by each stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days before the shareholders may be made at an Annual Meeting (A) date of the annual meeting. The Board of Directors acting pursuant to a resolution adopted by a majority of the Corporation’s entire Board of Directors may cancel, postpone or reschedule any previously scheduled annual meeting at any time, before or after the notice for such meeting has been sent to the stockholders.
(b) To be properly brought before the annual meeting, business must be either (i) specified in the notice of meeting, annual meeting (Bor any supplement or amendment thereto) given by or at the direction of the Board of Directors, (Cii) otherwise brought before the annual meeting by any shareholder or at the direction of the Corporation Board of Directors or (iii) otherwise properly brought before the annual meeting by a stockholder who (1) is a shareholder stockholder of record at on the time date of the giving of the notice provided for in required by this Section 5(a) 2.2 and until and at on the time record date for the determination of the Annual Meeting, (2) is stockholders entitled to vote with respect to at such nomination or other business at the annual meeting under the Articles of Incorporation and (3) who complies with the notice procedures set forth in this Section 5(a) as 2.2. In addition to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) shall be the exclusive means for a shareholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in the Corporation’s notice of meeting) before an Annual Meeting.
(ii) For nominations or any other applicable requirements, for business to be properly brought before an Annual Meeting annual meeting by a shareholder pursuant to the foregoing Section 5(a)(i)(C)stockholder, the shareholder stockholder must have given timely notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder actionof the Corporation. To be timely, a shareholderstockholder’s notice shall must be delivered to or mailed and received by the Secretary at the principal executive offices of the Corporation not less than forty-five ninety (90) days nor more than seventy one hundred twenty (120) days prior to the first annual anniversary date of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”)annual meeting; provided, however, that if in the date for which event that the Annual Meeting annual meeting is called for a date that is more than thirty not within twenty-five (25) days before or more than thirty days after such anniversary date, or if no annual meeting was held in the first annual anniversary of the immediately preceding Annual Meetingyear, then notice by the shareholder stockholder in order to be timely must be so received by the Secretary not earlier later than the close of business on the 100th day prior to the date of such Annual Meeting and not later than the later of tenth (A10th) the 75th day prior to the date of such Annual Meeting or (B) the 10th day following the day on which public announcement notice of the date of such Annual Meeting is the annual meeting was mailed or public disclosure of the date of the annual meeting was made, whichever first madeoccurs. In no event shall any adjournment or postponement of an Annual Meeting annual meeting or the announcement thereof commence a new time period for the giving of a shareholder stockholder’s notice as described above. Such shareholder.
(c) To be in proper written form, a stockholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: forth (Ii) the name and address of such shareholder (as they appear on the Corporation’s books) and any such beneficial owner; (II) the Share Information (which Share Information required by this clause (II) shall be supplemented by such shareholder and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (III) a representation that such shareholder is a holder of record of shares of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) in the case of any proposed nomination for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of each matter the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose stockholder proposes to bring before the meeting, annual meeting (1) a brief description of the business desired to be brought before the annual meeting and, if (including the text of any resolutions proposed for consideration and in the event such business includes a proposal to amend these By-LawsBylaws, the language of the proposed amendment, (2) and the reasons of such shareholder and any such beneficial owner for conducting such business at the annual meeting, (32) any material interest of the stockholder in such business of such shareholder and any such beneficial owner and business, (43) a description of all agreements, arrangements or understandings between such shareholder and or among the stockholder or any such beneficial owner Stockholder Associated Person (as defined below) and any other Person person or Persons entity (naming such Person or Personsincluding their names) in connection with the proposal of such business by the stockholder and any material interest of the stockholder, any Stockholder Associated Person or such shareholder. In other person or entity in such business, and (4) a representation as to whether the case stockholder or any Stockholder Associated Person intends or is part of a group which intends to deliver a proxy statement and/or form of proxy to the holders of at least the percentage of the Corporation’s outstanding capital stock required to approve the proposal or otherwise to solicit proxies or votes from stockholders in support of the proposal; and (ii) as to the stockholder giving the notice (1) the name and address of the stockholder as they appear on the Corporation’s books, (2) the name and address (if different from the Corporation’s books) of the stockholder, (3) the name and address of any proposed nomination for election or re-election as a directorStockholder Associated Person, (4) the class, series and number of shares of capital stock of the Corporation may require which are directly or indirectly held of record or beneficially owned by the stockholder or by any proposed nominee Stockholder Associated Person, (5) a description of any Derivative Positions (as defined below) directly or indirectly held or beneficially held by the stockholder or any Stockholder Associated Person, (6) whether and to furnish the extent to which a Hedging Transaction (as defined below) has been entered into by or on behalf of such stockholder or any Stockholder Associated Person, (7) a representation that the stockholder is a stockholder of record of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the annual meeting to bring such business before the meeting and (8) any other information as may reasonably related to the stockholder or any Stockholder Associated Person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with the solicitation of proxies or consents (even if a solicitation is not involved) by such stockholder or Stockholder Associated Person in support of the business proposed to be brought before the meeting pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules, regulations and schedules promulgated thereunder.
(d) A stockholder providing notice of business proposed to be brought before an annual meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.2 shall be true and correct as of the record date for determining the stockholders entitled to receive notice of the annual meeting and such update and supplement shall be delivered to or be mailed and received by the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for determining the stockholders entitled to receive notice of the annual meeting.
(e) Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Section 2.2. The Chairman of the Board of Directors or person presiding at an annual meeting, as applicable, shall, if the facts warrant, determine and declare to the eligibility annual meeting that business was not properly brought before the annual meeting in accordance with the provisions of this Section 2.2, and if such person should so determine, such person shall so declare to the annual meeting and any such business not properly brought before the meeting shall not be transacted.
(f) As used in these Bylaws: “Stockholder Associated Person” means, with respect to any stockholder, (i) any person controlling, directly or indirectly, such stockholder, (ii) any beneficial owner of shares of stock of the Corporation owned of record or beneficially by such stockholder, (iii) any person directly or indirectly controlling, controlled by or under common control with such Stockholder Associated Person or (iv) any person who is an “associate” (as such term is defined in Rule 12b-2 under the Exchange Act) of such proposed nominee stockholder; “Derivative Positions” means, with respect to serve as any stockholder or any Stockholder Associated Person, any derivative positions including, without limitation, any short position, profits interest, option, warrant, convertible security, stock appreciation right, or similar right with an independent director exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Corporation or that could be material to with a reasonable shareholder’s understanding value derived in whole or in part from the value of any class or series of shares of the independenceCorporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of capital stock of the Corporation or otherwise and any performance-related fees to which such stockholder or any Stockholder Associated Person is entitled, based, directly or indirectly, on any increase or decrease in the value of shares of capital stock of the Corporation; and “Hedging Transaction” means, with respect to any stockholder or any Stockholder Associated Person, any hedging or other transaction (such as borrowed or loaned shares) or series of transactions, or lack thereofany other agreement, arrangement or understanding, the effect or intent of which is to increase or decrease the voting power or economic or pecuniary interest of such nomineestockholder or any Stockholder Associated Person with respect to the Corporation’s securities.
Appears in 2 contracts
Samples: Business Combination Agreement (ARYA Sciences Acquisition Corp IV), Business Combination Agreement (Amicus Therapeutics, Inc.)
Annual Meetings. (i) Subject Until the Series A Redemption Date, annual meetings of Members may, but need not be held. From and after the Series A Redemption Date, an annual meeting of the Members for the election of Managers to Article IX the Board and such other matters as the Board shall submit to a vote of these By-Lawsthe Members, shall be held at such date, time and place within or outside the State of Delaware as may be fixed from time to time by the Board and all as stated in the notice of the meeting. Notice of the annual meeting of Members shall be given in accordance with Section 12.2(d) not less than 10 days nor more than 60 days prior to the date of such meeting.
(ii) At any annual meeting of the Members, only such nominations of persons for election to the Board of Directors shall be made, and only such other business shall be conducted or considered, as shall have been properly brought before the proposal meeting. For nominations to be properly made at an annual meeting, and proposals of other business to be considered by the shareholders may be made at properly brought before an Annual Meeting annual meeting, nominations and proposals of other business must be: (A) pursuant to specified in the Corporation’s notice of meeting, (B) otherwise properly made at the annual meeting or by or at the direction of the Board of Directors, or (C) otherwise properly requested to be brought before the annual meeting by any shareholder a Member in accordance with this Section 12.2.
(iii) For nominations of persons for election to the Corporation who Board or proposals of other business to be properly requested by a Member to be made at an annual meeting, a Member must (1A) is be a shareholder of record Member at the time of giving of notice provided for in this Section 5(a) and until of such annual meeting and at the time of the Annual Meetingannual meeting, (2B) is be entitled to vote with respect to at such nomination or other business at the annual meeting under the Articles of Incorporation and (3C) complies comply with the notice procedures set forth in this Section 5(a) 12.2 as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article IInomination. The immediately preceding clauses (C) and (D) sentence shall be the exclusive means for a shareholder Member to make nominations or submit other business proposals (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in the Corporation’s notice of meeting) before an Annual Meetingannual meeting.
(iiiv) For Without qualification or limitation, subject to any rights of the Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act and to this Section 12.2, for any nominations or any other business to be properly requested to be brought before an Annual Meeting annual meeting by a shareholder pursuant to the foregoing Section 5(a)(i)(C)Member, the shareholder Member must have given timely notice thereof (including, in the case of nominations), the completed and signed questionnaire, representation and agreement required by Section 12.11) in a proper form and timely updates and supplements thereof in writing to the Secretary Board and such other business must otherwise be a proper matter for shareholder Member action. To be timely, a shareholderMember’s notice shall must:
(A) be received by the Secretary at the principal offices of the Corporation not less than forty-five days nor more than seventy days prior delivered to the first annual anniversary of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available Board pursuant to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”); provided, however, that if the date for which the Annual Meeting is called is more than thirty days before or more than thirty days after the first annual anniversary of the immediately preceding Annual Meeting, then notice by the shareholder to be timely must be received by the Secretary Section 14.1 not earlier than the close of business on the 100th 120th day nor later than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, a Member’s notice to be timely must be so delivered not earlier than the close of business on the 120th day prior to the date of such Annual Meeting annual meeting and not later than the close of business on the later of (A) the 75th 90th day prior to the date of such Annual Meeting or (B) annual meeting or, if the first public announcement of the date of such annual meeting is less than 100 days prior to the date of such annual meeting, the 10th day following the day on which public announcement of the date of such Annual Meeting the annual meeting is first made. In no event shall any an adjournment or postponement of an Annual Meeting annual meeting, or the public announcement thereof thereof, commence a new time period for the giving of a shareholder Member’s notice as described above. Such shareholder’s ; and
(B) further be updated and supplemented, if necessary, so that the information provided or required to be provided in such notice (whether given shall be true and correct as of the record date for the meeting and as of the date that is 10 Business Days prior to the meeting or any adjournment or postponement thereof, and such updates and supplements shall be delivered to the Board pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (I) the name and address of such shareholder (as they appear on the Corporation’s books) and any such beneficial owner; (II) the Share Information (which Share Information required by this clause (II) shall be supplemented by such shareholder and any such beneficial owner 14.1 not later than ten days five Business Days after the Meeting Record Date to disclose such Share Information as record date for the meeting in the case of the Meeting Record Date); (III) a representation that such shareholder is a holder of record of shares of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business update and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings supplement required to be made in connection with solicitations as of proxies forthe record date, as applicable, and not later than eight Business Days prior to the proposal and/or date for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) meeting, any adjournment or postponement thereof in the case of any proposed nomination for election or re-election as a director, (1) the name update and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is supplement required to be made as of 10 Business Days prior to the meeting or any adjournment or postponement thereof. The obligation to update and supplement set forth in this paragraph or any other provision of this Section 12.2 shall not limit the Company’s rights with respect to any deficiencies in any notice provided by such shareholder and a Member, extend any such beneficial ownerapplicable deadlines hereunder or enable or be deemed to permit a Member who has previously submitted notice hereunder to amend or update any proposal or to submit any new proposal, including without limitation any arrangement by changing or understanding with any Person as to how such nomineeadding nominees, if elected as a director of the Corporationmatters, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each business and/or resolutions proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before an annual meeting.
(v) This Article XII shall be amended solely by the meeting and, if such business includes a proposal approval of Members who are Record Holders of at least 66.67% of (i) prior to amend these By-Lawsthe Series A Redemption Date, the language of Series A Preferred Units; (ii) from the proposed amendmentSeries A Redemption Date until the Series B Redemption Date, (2) the reasons of such shareholder Series B Preferred Units and any such beneficial owner for conducting such business at the meetingSeries C Common Units, (3) any material interest in such business of such shareholder and any such beneficial owner voting together as if a single class; and (4iii) a description of all agreements, arrangements or understandings between such shareholder from and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with after the proposal of such business by such shareholder. In the case of any proposed nomination for election or re-election as a directorSeries B Redemption Date, the Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nomineeSeries C Common Units.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Grizzly Energy, LLC), Limited Liability Company Agreement (Grizzly Energy, LLC)
Annual Meetings. (iA) Subject to Article IX A meeting of these By-Laws, nominations of persons Stockholders for the election to the Board of Directors and the proposal of other business to shall be considered held annually at such date and time as may be designated by the shareholders may be made at Board from time to time.
(B) At an Annual Meeting annual meeting of Stockholders, only business (A) pursuant other than business relating to the Corporation’s notice nomination or election of meetingDirectors, which is governed by Section 3.4) that has been properly brought before the meeting of Stockholders in accordance with the procedures set forth in this Section 2.2 shall be conducted. To be properly brought before an annual meeting of Stockholders, such business must be brought before the meeting (Bi) by or at the direction of the Board of Directors, or any committee thereof or (Cii) by any shareholder a Stockholder who (a) was a Stockholder of record of the Corporation who (1) is a shareholder of record at when the time of giving of notice provided for in required by this Section 5(a) and until 2.2 is delivered to the Secretary and at the time of the Annual Meetingannual meeting, (2b) is entitled to vote with respect to such nomination or other business at the annual meeting under the Articles of Incorporation and (3c) complies with the notice procedures set forth in and other provisions of this Section 5(a2.2. Section 2.2(B)(ii) as to such nomination or other is the exclusive means by which a Stockholder may bring business or before an annual meeting of Stockholders, except (Dx) with respect to nominations or elections of Directors which is governed by any shareholder of Section 3.4 and (y) with respect to proposals where the Stockholder proposing such business has notified the Corporation who is eligible under, and complies of such Stockholder’s intent to present the proposals at an annual meeting in compliance with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) shall be the exclusive means for a shareholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and such proposals have been included in a proxy statement that has been prepared by the Corporation’s Corporation to solicit proxies for such annual meeting, in which case the notice requirements of meeting) before an Annual Meetingthis Section 2.2 shall be deemed satisfied with respect to such proposals.
(iiC) For nominations or At any other business to annual meeting of Stockholders, all proposals of Stockholder Business must be properly brought before an Annual Meeting made by timely written notice given by a shareholder pursuant to Stockholder of record (the foregoing Section 5(a)(i)(C), the shareholder must have given timely notice thereof in writing to the Secretary “Notice of Business”) and such other business must otherwise be a proper matter for shareholder Stockholder action. To be timely, a shareholder’s notice shall the Notice of Business must be delivered personally or mailed to, and received by at, the Secretary at the principal offices Office of the Corporation not less than forty-five days nor more than seventy days prior Corporation, addressed to the Secretary, by no earlier than 120 days and no later than 90 days before the first annual anniversary of the date set forth in of the Corporationprior year’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”)annual meeting of Stockholders; provided, however, that if (i) the date for which the Annual Meeting annual meeting of Stockholders is called is advanced by more than thirty days before 30 days, or delayed by more than thirty days after 60 days, from the first annual anniversary of the immediately preceding Annual Meetingprior year’s annual meeting of Stockholders or (ii) no annual meeting was held during the prior year, then the notice by the shareholder Stockholder to be timely must be received by the Secretary not (a) no earlier than the close of business on the 100th day prior to the date of 120 days before such Annual Meeting annual meeting and not (b) no later than the later of (A) 90 days before such annual meeting and the 75th tenth day prior to the date of such Annual Meeting or (B) the 10th day following after the day on which public announcement of the date notice of such Annual Meeting is first madeannual meeting was made by mail or Public Disclosure. In no event shall any adjournment an adjournment, postponement or postponement deferral, or Public Disclosure of an Annual Meeting adjournment, postponement or the announcement thereof deferral, of an annual meeting of Stockholders commence a new time period (or extend any time period) for the giving of a shareholder notice as described above. Such shareholder’s notice the Notice of Business.
(whether given pursuant to this Section 5(a)(iiD) or Section 5(b)) to the Secretary shall be signed by the shareholder The Notice of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall Business must set forth: :
(Ii) the name and record address of such shareholder each Stockholder proposing Stockholder Business for an annual meeting (the “Proponent”), as they appear on the Corporation’s books;
(ii) the name and address of any Stockholder Associated Person;
(iii) as to each Proponent and any such beneficial owner; Stockholder Associated Person, (IIa) the Share Information class or series and number of shares of stock of the Corporation directly or indirectly held of record and beneficially owned by the Proponent or Stockholder Associated Person, (which Share Information required by this clause b) the date such shares of stock were acquired, (IIc) shall be supplemented by a description of any agreement, arrangement or understanding, direct or indirect, with respect to such shareholder Stockholder Business between or among the Proponent, any Stockholder Associated Person or any others (including their names) acting in concert with any of the foregoing, (d) a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, hedging transactions and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information borrowed or loaned shares) that has been entered into, directly or indirectly, as of the Meeting Record Datedate of the Proponent’s notice by, or on behalf of, the Proponent or any Stockholder Associated Person, 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 the Proponent or any Stockholder Associated Person with respect to shares of stock of the Corporation (a “Derivative”); , (IIIe) a description in reasonable detail of any proxy (including revocable proxies), contract, arrangement, understanding or other relationship pursuant to which the Proponent or Stockholder Associated Person has a right to vote any shares of stock of the Corporation, (f) any rights to dividends on the stock of the Corporation owned beneficially by the Proponent or Stockholder Associated Person that are separated or separable from the underlying stock of the Corporation, (g) any proportionate interest in stock of the Corporation or Derivatives held, directly or indirectly, by a general or limited partnership in which the Proponent or Stockholder Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner, (h) any performance-related fees (other than an asset-based fee) that the Proponent or Stockholder Associated Person is entitled to, based on any increase or decrease in the value of stock of the Corporation or Derivatives thereof, if any, as of the date of such notice, and (i) with respect to any and all of the agreements, contracts, understandings, arrangements, proxies or other relationships referred to in the foregoing clauses (c) through (h), a representation that such Proponent will notify the Corporation in writing of any such agreement, contract, understanding, arrangement, proxy or other relationship that is or will be in effect as of the date of such meeting no later than five business days before the date of such meeting. The information specified in Section 2.2(D)(i) to (iii) is referred to herein as “Stockholder Information”;
(iv) a representation that such shareholder each Proponent is a holder of record of shares stock of the Corporation entitled to vote under at the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make propose such nomination or introduce such other business; Stockholder Business;
(IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) in the case of any proposed nomination for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1v) a brief description of the business Stockholder Business desired to be brought before the meeting annual meeting, the text of the proposal (including the text of any resolutions proposed for consideration and, if such business includes a proposal to amend these the By-Lawslaws, the language of the proposed amendment, (2) and the reasons of such shareholder and any such beneficial owner for conducting such business Stockholder Business at the meeting, ;
(3vi) any material interest of the Proponent and any Stockholder Associated Person in such business Stockholder Business;
(vii) a representation as to whether the Proponent intends (a) to deliver a proxy statement and form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt such Stockholder Business or (b) otherwise to solicit proxies or votes from Stockholders in support of such shareholder Stockholder Business; and
(viii) all other information that would be required to be filed with the Securities and Exchange Commission (“SEC”) if the Proponents or Stockholder Associated Persons were participants in a solicitation subject to Section 14 of the Exchange Act.
(E) The person presiding over the meeting shall, if the facts warrant, determine and declare to the meeting, that business was not properly brought before the meeting in accordance with the procedures set forth in this Section 2.2, and, if he or she should so determine, he or she shall so declare to the meeting and any such beneficial owner and business not properly brought before the meeting shall not be transacted.
(4F) If the Proponent (or a description qualified representative of all agreementsthe Proponent) does not appear at the annual meeting of Stockholders to present the Stockholder Business such business shall not be transacted, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) notwithstanding that proxies in connection with the proposal respect of such business vote may have been received by the Corporation. For purposes of this Section 2.2, to be considered a qualified representative of the Stockholder, a person must be a duly authorized officer, manager or partner of such Stockholder or must be authorized by a writing executed by such shareholder. In Stockholder or an electronic transmission delivered by such Stockholder to act for such Stockholder as proxy at the case annual meeting of any proposed nomination for election Stockholders and such person must produce such writing or re-election as electronic transmission, or a director, the Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director reliable reproduction of the Corporation writing or that could be material to a reasonable shareholder’s understanding electronic transmission, at the meeting of the independence, or lack thereof, of such nomineeStockholders.
Appears in 2 contracts
Samples: Merger Agreement (Spectrum Brands Holdings, Inc.), Merger Agreement (HRG Group, Inc.)
Annual Meetings. (ia) Subject The annual meeting of the stockholders of the corporation, for the purpose of election of directors and for such other business as may properly come before it, shall be held on such date and at such time as may be designated from time to Article IX time by the Board of these By-Laws, nominations Directors and stated in the corporation’s notice of meeting of stockholders. Nominations of persons for election to the Board of Directors and the proposal proposals of other business to be considered by the shareholders stockholders may be made at an Annual Meeting annual meeting of stockholders: (Ai) pursuant to the Corporationcorporation’s notice of meeting, meeting of stockholders (Bwith respect to business other than nominations); (ii) brought specifically by or at the direction of the Board of Directors, ; or (Ciii) by any shareholder stockholder of the Corporation corporation who (1) is was a shareholder stockholder of record at the time of giving of the stockholder’s notice provided for in this Section 5(a5(b) and until and at the time of the Annual Meetingbelow, (2) who is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) complies who complied with the notice procedures set forth in this Section 5(a5. For the avoidance of doubt, clause (iii) as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) above shall be the exclusive means for a shareholder stockholder to make nominations or and submit other business (other than matters properly brought included in the corporation’s notice of meeting of stockholders and proxy statement under Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and included in the Corporation’s notice of meetingrules and regulations thereunder (the “1934 Act”)) before an Annual Meetingannual meeting of stockholders.
(iib) At an annual meeting of the stockholders, only such business shall be conducted as is a proper matter for stockholder action under Delaware law and as shall have been properly brought before the meeting in accordance with Section 5(a) and the procedures below.
(i) For nominations or any other business for the election to the Board of Directors to be properly brought before an Annual Meeting annual meeting by a shareholder stockholder pursuant to the foregoing clause (iii) of Section 5(a)(i)(C5(a), the shareholder stockholder must have given timely deliver written notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder action. To be timely, a shareholder’s notice shall be received by the Secretary at the principal executive offices of the Corporation not less than forty-five days nor more than seventy days prior to the first annual anniversary of the date corporation on a timely basis as set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting Section 5(b)(iii) and must update and supplement such written notice on a timely basis as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”set forth in Section 5(c); provided, however, that if the date for which the Annual Meeting is called is more than thirty days before or more than thirty days after the first annual anniversary of the immediately preceding Annual Meeting, then notice by the shareholder to be timely must be received by the Secretary not earlier than the close of business on the 100th day prior to the date of such Annual Meeting and not later than the later of (A) the 75th day prior to the date of such Annual Meeting or (B) the 10th day following the day on which public announcement of the date of such Annual Meeting is first made. In no event shall any adjournment or postponement of an Annual Meeting or the announcement thereof commence a new time period for the giving of a shareholder notice as described above. Such shareholderstockholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (IA) as to each nominee such stockholder proposes to nominate at the meeting: (1) the name name, age, business address and residence address of such shareholder nominee, (as they appear on the Corporation’s books) and any such beneficial owner; (II2) the Share Information principal occupation or employment of such nominee, (which Share Information required by this clause (II3) shall be supplemented by such shareholder the class and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (III) a representation that such shareholder is a holder of record number of shares of each class of capital stock of the Corporation entitled to vote under corporation that are owned of record and beneficially by such nominee, (4) the Articles date or dates on which such shares were acquired and the investment intent of Incorporation at such meeting with respect to acquisition, (5) a statement whether such nomination or other business and nominee, if elected, intends to appear in person tender, promptly following such person’s failure to receive the required vote for election or by proxy re-election at the next meeting to make at which such nomination person would face election or introduce re-election, an irrevocable resignation effective upon acceptance of such resignation by the Board of Directors; and (6) such other business; (IV) any other information relating to concerning such shareholder and any such beneficial owner that nominee as would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of soliciting proxies for, as applicable, the proposal and/or for the election of directors such nominee as a director in a contested an election contest (even if an election contest is not involved), or that is otherwise required to be disclosed pursuant to Section 14 of the Exchange 1934 Act and the rules and regulations promulgated thereunder; thereunder (V) in the case of any proposed nomination for election or re-election including such person’s written consent to being named as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected serving as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed); and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2B) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal of such business information required by such shareholderSection 5(b)(iv). In the case of any proposed nomination for election or re-election as a director, the Corporation The corporation may require any proposed nominee to furnish such other information as it may reasonably be required by the Corporation require to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation corporation or that could be material to a reasonable shareholderstockholder’s understanding of the independence, or lack thereof, of such proposed nominee. The notice in this paragraph must also be accompanied by (X) a completed written questionnaire (in a form provided by the corporation) with respect to the background, qualifications, stock ownership and independence of such proposed nominee, and such additional information with respect to such proposed nominee as would be required to be provided by the corporation pursuant to Schedule 14A if such proposed nominee were a participant in the solicitation of proxies by the corporation in connection with such annual or special meeting and (Y) a written representation and agreement (in form provided by the corporation) that such nominee (i) if elected as director of the corporation, intends to serve the entire term until the next meeting at which such nominee would face re-election and (ii) consents to being named as a nominee in the corporation’s proxy statement pursuant to Rule 14a-4(d) under the 1934 Act and any associated proxy card of the corporation and agrees to serve if elected as a director.
(ii) Other than proposals sought to be included in the corporation’s proxy materials pursuant to Rule 14a-8 under the 1934 Act, for business other than nominations for the election to the Board of Directors to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of Section 5(a), the stockholder must deliver written notice to the Secretary at the principal executive offices of the corporation on a timely basis as set forth in Section 5(b)(iii), and must update and supplement such written notice on a timely basis as set forth in Section 5(c). Such stockholder’s notice shall set forth: (A) as to each matter such stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting, and any material interest (including any anticipated benefit of such business to any Proponent (as defined below) other than solely as a result of its ownership of the corporation’s capital stock, that is material to any Proponent individually, or to the Proponents in the aggregate) in such business of any Proponent; and (B) the information required by Section 5(b)(iv).
(iii) To be timely, the written notice required by Section 5(b)(i) or 5(b)(ii) must be received by the Secretary at the principal executive offices of the corporation not later than the close of business on the ninetieth (90th) day nor earlier than the close of business on the one hundred twentieth (120th) day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that, subject to the last sentence of this Section 5(b)(iii), in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the stockholder to be timely must be so received (A) not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and (B) not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or, if later than later of the ninetieth (90th) day prior to such annual meeting, the tenth (10th) day following the day on which public announcement of the date of such meeting is first made. In no event shall an adjournment or a postponement of an annual meeting for which notice has been given, or the public announcement thereof has been made, commence a new time period for the giving of a stockholder’s notice as described above.
(iv) The written notice required by Section 5(b)(i) or 5(b)(ii) shall also set forth, as of the date of the notice and as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (each, a “Proponent” and collectively, the “Proponents”): (A) the name and address of each Proponent, as they appear on the corporation’s books; (B) the class, series and number of shares of the corporation that are owned beneficially and of record by each Proponent; (C) a description of any agreement, arrangement or understanding (whether oral or in writing) with respect to such nomination or proposal between or among any Proponent and any of its affiliates or associates, and any others (including their names) acting in concert, or otherwise under the agreement, arrangement or understanding, with any of the foregoing; (D) a representation that the Proponents are holders of record or beneficial owners, as the case may be, of shares of the corporation entitled to vote at the meeting and intend to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice (with respect to a notice under Section 5(b)(i)) or to propose the business that is specified in the notice (with respect to a notice under Section 5(b)(ii)); (E) a representation as to whether the Proponents intend to deliver a proxy statement and form of proxy to holders of a sufficient number of holders of the corporation’s voting shares to elect such nominee or nominees (with respect to a notice under Section 5(b)(i)) or to carry such proposal (with respect to a notice under Section 5(b)(ii)); (F) to the extent known by any Proponent, the name and address of any other stockholder supporting the proposal on the date of such stockholder’s notice; and (G) a description of all Derivative Transactions (as defined below) by each Proponent during the previous twelve (12) month period, including the date of the transactions and the class, series and number of securities involved in, and the material economic terms of, such Derivative Transactions.
Appears in 2 contracts
Samples: Merger Agreement (Supernova Partners Acquisition Co II, Ltd.), Merger Agreement (Supernova Partners Acquisition Co II, Ltd.)
Annual Meetings. (i) Subject to Article IX The annual meeting of these By-Laws, nominations of persons for election to stockholders shall be held on such date and at such time as may be fixed by the Board of Directors and stated in the proposal notice of the meeting, for the purpose of electing directors and for the transaction of only such other business to be considered by as is properly brought before the shareholders may be made at an Annual Meeting meeting in accordance with these Bylaws (A) pursuant to the Corporation’s “Bylaws”). Written notice of an annual meeting stating the place, date and hour of the meeting, shall be given to each stockholder entitled to vote at such meeting not less than ten (B10) nor more than sixty (60) days before the date of the annual meeting. To be properly brought before the annual meeting, business must be either (i) specified in the notice of annual meeting (or any supplement or amendment thereto) given by or at the direction of the Board of Directors, (Cii) otherwise brought before the annual meeting by any shareholder or at the direction of the Corporation Board of Directors, or (iii) otherwise properly brought before the annual meeting by a stockholder who (1) is a shareholder stockholder of record at the time of giving of the notice provided for in this Article II, Section 5(a) and until and at 2.2 is delivered to the time Secretary of the Annual MeetingCorporation, (2) who is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) who complies with the notice procedures set forth in this Section 5(a) as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth inArticle II, Section 14 of this Article II2.2. The preceding clauses (C) and (D) shall be the exclusive means for a shareholder In addition to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in the Corporation’s notice of meeting) before an Annual Meeting.
(ii) For nominations or any other applicable requirements, for business to be properly brought before an Annual Meeting annual meeting by a shareholder pursuant to the foregoing Section 5(a)(i)(C)stockholder, the shareholder stockholder must have given timely notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder actionof the Corporation. To be timely, a shareholderstockholder’s notice shall must be received by delivered to the Secretary at the principal executive offices of the Corporation not less later than forty-five days the close of business on the 90th day nor more earlier than seventy days the close of business on the 120th day prior to the first annual anniversary of the date set forth in the Corporationpreceding year’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”); annual meeting; provided, however, that if in the event that the date for which of the Annual Meeting is called annual meeting is more than thirty 30 days before or more than thirty days after such anniversary date, or if no annual meeting was held in the first annual anniversary of the immediately preceding Annual Meetingyear, then notice by the shareholder stockholder to be timely must be received by the Secretary so delivered not earlier than the close of business on the 100th 120th day prior to the date of such Annual Meeting annual meeting and not later than the close of business on the later of (A) the 75th 90th day prior to the date of such Annual Meeting annual meeting or (B) the 10th day following the day date on which public announcement of the date of such Annual Meeting meeting is first mademade by the Corporation. In no event shall any an adjournment or recess of an annual meeting, or a postponement of an Annual Meeting annual meeting for which notice of the meeting has already been given to stockholders or a public announcement of the announcement thereof meeting date has already been made, commence a new time period (or extend any time period) for the giving of a shareholder stockholder’s notice as described above. Such shareholderA stockholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: forth (Ia) the name and address of such shareholder (as they appear on the Corporation’s books) and any such beneficial owner; (II) the Share Information (which Share Information required by this clause (II) shall be supplemented by such shareholder and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (III) a representation that such shareholder is a holder of record of shares of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) in the case of any proposed nomination for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of each matter the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose stockholder proposes to bring before the meeting, annual meeting (1i) a brief description of the business desired to be brought before the annual meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2) and the reasons of such shareholder and any such beneficial owner for conducting such business at the annual meeting, and (3ii) any material interest of the stockholder in such business, (b) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the business is proposed (i) the name and record address of such shareholder the stockholder and any such beneficial owner and (4ii) the class, series and number of shares of capital stock of the Corporation that are beneficially owned by the stockholder and beneficial owner as of the date of the notice (including, if such stockholder or beneficial owner is an entity, the ownership of each director, executive, managing member or control person of such entity), and a representation that the stockholder will notify the Corporation in writing not later than five business days after the record date for such meeting of the class or series and number of shares of stock of the Corporation owned of record by the stockholder and such beneficial owner as of the record date for the meeting, and (c) a description representation that the stockholder (or a qualified representative of all agreementsthe stockholder) intends to appear at the meeting to propose such business. Notwithstanding anything in these Bylaws to the contrary, arrangements or understandings between no business shall be conducted at an annual meeting except in accordance with the procedures set forth in this Article II, Section 2.2 (other than a proposal included in the Corporation’s proxy statement pursuant to and in compliance with Rule 14a-8 under the Exchange Act). The officer of the Corporation presiding at an annual meeting shall, if the facts warrant, determine and declare to the annual meeting that business was not properly brought before the annual meeting in accordance with the provisions of this Article II, Section 2.2, and if such shareholder officer should so determine, such officer shall so declare to the annual meeting and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with business not properly brought before the proposal of such business by such shareholder. In the case of any proposed nomination for election or re-election as a director, the Corporation may require any proposed nominee to furnish such other information as may reasonably meeting shall not be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nomineetransacted.
Appears in 2 contracts
Samples: Business Combination Agreement (Pure Acquisition Corp.), Business Combination Agreement (HighPeak Energy, Inc.)
Annual Meetings. (ia) Subject The annual meeting of stockholders (the “Annual Meeting”) shall be held on such date and at such time as shall be designated from time to Article IX of these By-Laws, nominations of persons for election to time by the Board of Directors and stated in the proposal notice of the meeting, at which meetings the stockholders, subject to the provisions of the Amended and Restated Certificate of Incorporation of the Corporation (the “Certificate of Incorporation”), shall elect by a plurality vote a Board of Directors, and transact such other business as may properly be brought before the meeting. Written notice of the Annual Meeting stating the place, date and hour of the meeting shall be given to be considered by each stockholder entitled to vote at such meeting not less than ten days nor more than sixty days before the shareholders date of the meeting.
(b) No business may be made transacted at an Annual Meeting Meeting, other than business that is either (Ai) pursuant to specified in the Corporation’s notice of meeting, meeting (Bor any supplement thereto) given by or at the direction of the Board of DirectorsDirectors (or any duly authorized committee thereof), (Cii) otherwise properly brought before the Annual Meeting by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (iii) otherwise properly brought before the Annual Meeting by any shareholder stockholder of the Corporation (A) who (1) is a shareholder stockholder of record at on the time date of the giving of the notice provided for in this Section 5(a) 2.2 and until and at on the time record date for the determination of the Annual Meeting, (2) is stockholders entitled to vote with respect to at such nomination or other business at the meeting under the Articles of Incorporation Annual Meeting and (3B) who complies with the notice procedures set forth in this Section 5(a) as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) shall be the exclusive means for a shareholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in the Corporation’s notice of meeting) before an Annual Meeting2.2.
(iic) For nominations or In addition to any other applicable requirements, for business to be properly brought before an Annual Meeting by a shareholder pursuant to the foregoing Section 5(a)(i)(C)stockholder, the shareholder such stockholder must have given timely notice thereof in writing proper written form to the Secretary and such other business must otherwise be a proper matter for shareholder actionof the Corporation. To be timely, a shareholderstockholder’s notice shall be received by to the Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation not less than fortyone-five days nor more than seventy hundred and twenty days prior to the first annual anniversary date of the date set forth in of the Corporation’s proxy statement for the immediately preceding Annual Meeting as (which date shall, for purposes of the date on which the Corporation Corporation’s first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”of stockholders after its shares of common stock are first publicly traded, be deemed to have occurred on June 14, 2017); provided, however, that if in the date for which event that the Annual Meeting is called for a date that is more than not within thirty days before or more than thirty days after the first annual anniversary date of the immediately preceding Annual Meeting, then notice by the shareholder stockholder in order to be timely must be so received by the Secretary not earlier later than the close of business on the 100th day prior to the date of such Annual Meeting and not later than the later of (A) the 75th day prior to the date of such Annual Meeting or (B) the 10th tenth day following the day on which public announcement disclosure of the date of such the Annual Meeting is was first made. In no event shall any adjournment or postponement of an Annual Meeting or the announcement thereof commence To be in proper written form, a new time period for the giving of a shareholder notice as described above. Such shareholderstockholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall must set forth: (I) the name and address of such shareholder (as they appear on the Corporation’s books) and any such beneficial owner; (II) the Share Information (which Share Information required by this clause (II) shall be supplemented by such shareholder and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (III) a representation that such shareholder is a holder of record of shares of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) in the case of any proposed nomination for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person forth as to how each matter such nominee, if elected as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose stockholder proposes to bring before the meeting, Annual Meeting (1i) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2) Annual Meeting and the reasons of such shareholder and any such beneficial owner for conducting such business at the meetingAnnual Meeting, (3ii) any material interest in such business the name and record address of such shareholder stockholder, (iii) the class or series and any number of shares of capital stock of the Corporation which are owned beneficially or of record by such beneficial owner and stockholder, (4iv) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner stockholder and any other Person person or Persons persons (naming such Person or Personsincluding their names) in connection with the proposal of such business by such shareholder. In stockholder and any material interest of such stockholder in such business and (v) a representation that such stockholder intends to appear in person or by proxy at the case Annual Meeting to bring such business before the meeting.
(d) No business shall be conducted at the Annual Meeting except business brought before the Annual Meeting in accordance with the procedures set forth in this Section 2.2, provided, however, that, once business has been properly brought before the Annual Meeting in accordance with such procedures, nothing in this Section 2.2 shall be deemed to preclude discussion by any stockholder of any proposed nomination for election or re-election as a directorsuch business. If the Chairman of an Annual Meeting determines that business was not properly brought before the Annual Meeting in accordance with the foregoing procedures, the Corporation may require any proposed nominee Chairman shall declare to furnish the meeting that the business was not properly brought before the meeting and such other information as may reasonably business shall not be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation discussed or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nomineetransacted.
Appears in 2 contracts
Samples: Reorganization Agreement (Cannae Holdings, Inc.), Reorganization Agreement (Fidelity National Financial, Inc.)
Annual Meetings. (a) Beginning in 2004, an annual meeting of Limited Partners shall be held for the election of the members of the Advisory Committee, on the first Wednesday of May if not a legal holiday, and if a legal holiday then on the next business day following, at 10:00 a.m., or at such date and time as may be designated by resolution of the Board of Managers from time to time and stated in the notice of the meeting, to elect the members of the Advisory Committee by a plurality and to transact such other business as is properly brought before the meeting in accordance with this Agreement. Annual meetings of Limited Partners shall be held at such place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Managers and stated in the notice of the meeting. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each Limited Partner entitled to vote at such meeting and holding of record not less than ten (10) nor more than sixty (60) days before the date of the meeting.
(b) To be properly brought before an annual meeting, business must be either (i) Subject to Article IX of these By-Laws, nominations of persons for election to specified in the Board of Directors and the proposal of other business to be considered by the shareholders may be made at an Annual Meeting (A) pursuant to the Corporation’s notice of meeting, meeting (Bor any supplement thereto) given by or at the direction of the Board of DirectorsManagers, (Cii) otherwise properly brought before the meeting by any shareholder or at the direction of the Corporation who Board of Managers, or (1iii) is otherwise (A) be properly requested to be brought before the meeting by a shareholder Limited Partner of record at the time of giving of notice provided for in this Section 5(a) and until and at the time of the Annual Meeting, (2) is entitled to vote with respect to such nomination or other business at in the meeting under election of the Articles members of Incorporation the Advisory Committee generally and (3B) complies with constitute a proper subject to be brought before the notice procedures set forth in this Section 5(a) as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article IImeeting. The preceding clauses (C) and (D) shall be the exclusive means In order for a shareholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in election of the Corporation’s notice members of meetingthe Advisory Committee) before an Annual Meeting.
(ii) For nominations or any other business to be properly brought before an Annual Meeting the annual meeting of Limited Partners by a shareholder pursuant Limited Partner, the business must be legally proper, and written notice of such Limited Partner’s intent to bring such matter before the annual meeting of Limited Partners must be delivered, either by personal delivery or by United States mail, postage prepaid, to the foregoing Section 5(a)(i)(C), the shareholder must have given timely notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder action. To be timely, a shareholder’s notice shall be received by the Secretary at the principal offices General Partner of the Corporation not less than forty-five days nor more than seventy days prior to the first annual anniversary of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”); provided, however, that if the date for which the Annual Meeting is called is more than thirty days before or more than thirty days after the first annual anniversary of the immediately preceding Annual Meeting, then Partnership. Such notice by the shareholder to be timely must be received by the Secretary not earlier than the close of business on the 100th day prior to the date of such Annual Meeting and General Partner not later than the later of (A) the 75th day prior to the date 60 days in advance of such Annual Meeting or (B) the 10th day following the day on which public announcement of the date of such Annual Meeting is first made. In no event shall any adjournment or postponement of an Annual Meeting or the announcement thereof commence a new time period for the giving of a shareholder notice as described above. Such shareholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, meeting if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (I) the name and address of such shareholder (as they appear on the Corporation’s books) and any such beneficial owner; (II) the Share Information (which Share Information required by this clause (II) shall be supplemented by such shareholder and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (III) a representation that such shareholder is a holder of record of shares of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) in the case of any proposed nomination for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by held on a day which is within 30 days preceding the anniversary of the previous year’s annual meeting, or 90 days in advance of such shareholder and any meeting if such beneficial owner, including without limitation any arrangement meeting is to be held on or understanding with any Person after the anniversary of the previous year’s annual meeting. A Limited Partner’s notice to the General Partner shall set forth as to how such nominee, if elected as a director of each matter the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose Limited Partner proposes to bring before the meeting, annual meeting of Limited Partners: (1i) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2) and the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3ii) the name and address, as they appear on the Partnership’s books, of the Limited Partner proposing such business, (iii) the class and number of Limited Partnership Interests of the Partnership which are owned by such Limited Partner and (iv) any material interest of the Limited Partner in such business. No business brought by a Limited Partner shall be conducted at the annual meeting of Limited Partners except in accordance with the procedures set forth in this Section 13.4(b). The filing of a Limited Partner notice as required by this Section 13.4(b) shall not, in and of itself, constitute the bringing of the business described therein before the annual meeting. The chairman of the meeting shall, if the facts warrant, determine that (1) the business proposed to be brought before the meeting is not a proper subject therefor and/or (2) such business was not properly brought before the meeting in accordance with the provisions hereof, and if he should so determine, he shall declare to the meeting that (1) the business proposed to be brought before the meeting is not a proper subject thereof and/or (2) such business was not properly brought before the meeting and shall not be transacted.
(c) Nominations for the election of the members of the Advisory Committee shall be made by the General Partner and may be made by any Limited Partner entitled to vote for the election of the members of the Advisory Committee and holding of record. Any Limited Partner entitled to vote for the election of the members of the Advisory Committee at a meeting (i.e., any Limited Partner of record) may nominate persons for election as a member of the Advisory Committee only if written notice of such shareholder Limited Partner’s intent to make such nomination is given, either by personal delivery or by United States mail, postage prepaid, to the General Partner of the Partnership not later than 90 days in advance of such meeting. Each such notice shall set forth: (1) the name and any address of the Limited Partner who intends to make the nomination of the person or persons to be nominated; (2) the name of the person or persons to be nominated; (3) a representation that the Limited Partner is a holder of record of Limited Partnership Interests of the Partnership entitled to vote at such beneficial owner meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (4) a description of all agreements, arrangements or understandings between such shareholder the Limited Partner and any such beneficial owner each nominee and any other Person person or Persons persons (naming such Person person or Personspersons) in connection with pursuant to which the proposal of such business nomination or nominations are to be made by such shareholder. In the case of any proposed nomination for election or re-election as a director, the Corporation may require any proposed nominee to furnish Limited Partner; (5) such other information regarding each nominee proposed by such Limited Partner as may reasonably would have been required to be required included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission had each nominee been nominated, or intended to be nominated, by the Corporation to determine General Partner; and (6) the eligibility written consent of such proposed each nominee to serve as an independent director a member of the Corporation or that could be material to Advisory Committee if so elected. The filing of a reasonable shareholder’s understanding Limited Partner notice as required by this Section 13.4(c) shall not, in and of itself, constitute the making of the independencenomination(s) described therein. In order for the nomination of a person to be effective, the Limited Partner who files the notice of intent to nominate such person shall also make the nomination at the meeting. The chairman of the meeting may refuse to acknowledge the nomination of any person not made in compliance with the foregoing procedure.
(d) Newly created memberships on the Advisory Committee resulting from any increase in the authorized number of members of the Advisory Committee may be filled by the General Partner in accordance with the limited liability company agreement of its general partner. In the event of a vacancy on the Advisory Committee, the member of the general partner of the General Partner that held the appointment or nomination right, as applicable, with respect to such vacating member shall have the right, pursuant to the limited liability company agreement of the general partner of the General Partner, to nominate, and cause the General Partner to appoint, a replacement member of the Advisory Committee. A member of the Advisory Committee appointed to fill a newly created membership or a vacancy in accordance with the foregoing shall serve until the next annual meeting of limited partners.
(e) In addition to any other applicable requirements, for a Limited Partner proposal to be considered for inclusion in the Partnership’s proxy statement for the annual meeting, the Limited Partner must have satisfied all of the conditions set forth in Rule 14a-8 promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or lack thereofany successor rule thereto (the “Proxy Rules”), including particularly the requirement that the Limited Partner give timely written notice of such nomineethe proposal to the Partnership.
Appears in 2 contracts
Samples: Agreement of Limited Partnership, Limited Partnership Agreement (Dorchester Minerals Lp)
Annual Meetings. (i) Subject to Article IX The annual meeting of these By-Laws, nominations of persons for election to stockholders shall be held on such date and at such time as may be fixed by the Board of Directors and stated in the proposal notice of the meeting, for the purpose of electing directors and for the transaction of only such other business to be considered by as is properly brought before the shareholders may be made at an Annual Meeting meeting in accordance with these Bylaws (A) pursuant to the Corporation’s “Bylaws”). Written notice of an annual meeting stating the place, date and hour of the meeting, shall be given to each stockholder entitled to vote at such meeting not less than ten (B10) nor more than sixty (60) days before the date of the annual meeting. To be properly brought before the annual meeting, business must be either (i) specified in the notice of annual meeting (or any supplement or amendment thereto) given by or at the direction of the Board of Directors, (Cii) otherwise brought before the annual meeting by any shareholder or at the direction of the Corporation who (1) is a shareholder Board of record at the time of giving of notice provided for in this Section 5(a) and until and at the time of the Annual MeetingDirectors, (2) is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) complies with the notice procedures set forth in this Section 5(a) as to such nomination or other business or (Diii) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) shall be the exclusive means for a shareholder to make nominations or submit other business (other than matters otherwise properly brought under Rule 14a-8 under before the Exchange Act and included in the Corporation’s notice of meeting) before an Annual Meeting.
(ii) For nominations or annual meeting by a stockholder. In addition to any other applicable requirements, for business to be properly brought before an Annual Meeting annual meeting by a shareholder pursuant to the foregoing Section 5(a)(i)(C)stockholder, the shareholder stockholder must have given timely notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder actionof the Corporation. To be timely, a shareholder’s stockholder's notice shall must be delivered to or mailed and received by the Secretary at the principal executive offices of the Corporation not less than forty-five sixty (60} days nor more than seventy ninety (90) days prior to the first annual anniversary meeting; provided however, that in the event that less than seventy (70) days notice or prior public disclosure of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”); provided, however, that if the date for which the Annual Meeting is called is more than thirty days before or more than thirty days after the first annual anniversary of the immediately preceding Annual Meetingannual meeting is given or made to stockholders, then notice by the shareholder a stockholder, to be timely timely, must be received by the Secretary not earlier no later than the close of business on the 100th day prior to the date of such Annual Meeting and not later than the later of tenth (A10th) the 75th day prior to the date of such Annual Meeting or (B) the 10th day following the day on which public announcement such notice of the date of the annual meeting was mailed or such Annual Meeting is public disclosure was made, whichever first madeoccurs. In no event shall any adjournment or postponement of an Annual Meeting or the announcement thereof commence a new time period for the giving of a shareholder A stockholder's notice as described above. Such shareholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: forth (Ia) the name and address of such shareholder (as they appear on the Corporation’s books) and any such beneficial owner; (II) the Share Information (which Share Information required by this clause (II) shall be supplemented by such shareholder and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (III) a representation that such shareholder is a holder of record of shares of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) in the case of any proposed nomination for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of each matter the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose stockholder proposes to bring before the meeting, annual meeting (1i) a brief description of the business desired to be brought before the annual meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2) and the reasons of such shareholder and any such beneficial owner for conducting such business at the annual meeting, and (3ii) any material interest of the stockholder in such business, and (b) as to the stockholder giving the notice (i) the name and record address of the stockholder and (ii) the class, series and number of shares of capital stock of the Corporation which are beneficially owned by the stockholder. Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Article II, Section 2. The officer of the Corporation presiding at an annual meeting shall, if the facts warrant, determine and declare to the annual meeting that business was not properly brought before the annual meeting in accordance with the provisions of this Article II, Section 2, and if such shareholder offer should so determine, such officer shall so declare to the annual meeting and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with business not properly brought before the proposal of such business by such shareholder. In the case of any proposed nomination for election or re-election as a director, the Corporation may require any proposed nominee to furnish such other information as may reasonably meeting shall not be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nomineetransacted.
Appears in 1 contract
Samples: Merger Agreement (Numbeer, Inc.)
Annual Meetings. (i) Subject to Article IX An annual meeting of these By-Laws, nominations the Limited Partners holding Voting Units for the election of persons for election directors to the Board of Directors and the proposal of such other business to be considered by the shareholders may be made at an Annual Meeting (A) pursuant to the Corporation’s notice of meeting, (B) by or at the direction of matters as the Board of Directors, (C) by any shareholder Directors shall submit to a vote of the Corporation who Limited Partners holding Voting Units shall be held at such date and time as may be fixed from time to time by the General Partner (1or, if there is no General Partner at such time, Limited Partners owning at least 25% of the Outstanding Voting Units of the class or classes for which the meeting is proposed) at such place within or without the State of Delaware as may be fixed from time to time by the General Partner (or, if there is a shareholder no General Partner at such time, Limited Partners owning at least 25% of record at the time Outstanding Voting Units of giving of notice provided the class or classes for in this Section 5(awhich the meeting is proposed) and until and at all as stated in the time notice of the Annual Meeting, (2) is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) complies with the notice procedures set forth in this Section 5(a) as to such nomination or other business or (D) with respect to nominations by any shareholder meeting. Notice of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) annual meeting shall be given in accordance with Section 13.5 not less than 10 days nor more than 60 days prior to the exclusive means for a shareholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in the Corporation’s notice date of such meeting) before an Annual Meeting.
(ii) For nominations or The Limited Partners holding Voting Units shall vote together as a single class. The Limited Partners entitled to vote shall elect by a plurality of the votes cast at such meeting persons to serve on the Board of Directors who are nominated in accordance with the provisions of this Article XIII. The exercise by a Limited Partner of the right to elect the Directors and any other rights afforded to such Limited Partner under this Section 13.4 shall be in such Limited Partner’s capacity as a limited partner of the Partnership and shall not cause a Limited Partner to be deemed to be taking part in the management and control of the business and affairs of the Partnership so as to jeopardize such Limited Partner’s limited liability under the Delaware Act or the law of any other state in which the Partnership is qualified to do business.
(iii) Without qualification or limitation, for any business to be properly requested to be brought before an Annual Meeting annual meeting by a shareholder pursuant to the foregoing Section 5(a)(i)(C)Limited Partner, the shareholder Limited Partner must have given timely notice thereof in a proper form and timely updates and supplements thereof in writing to the Secretary General Partner and such other business must otherwise be a proper matter for shareholder Limited Partner action. To be timely, a shareholderLimited Partner’s notice shall must:
A. be received by the Secretary at the principal offices of the Corporation not less than forty-five days nor more than seventy days prior delivered to the first annual anniversary of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available General Partner pursuant to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”); provided, however, that if the date for which the Annual Meeting is called is more than thirty days before or more than thirty days after the first annual anniversary of the immediately preceding Annual Meeting, then notice by the shareholder to be timely must be received by the Secretary Section 15.1 not earlier than the close of business on the 100th 120th day nor later than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that (x) in the event that the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date and (y) in the case of the 2012 annual meeting, a Limited Partner’s notice to be timely must be so delivered not earlier than the close of business on the 120th day prior to the date of such Annual Meeting annual meeting and not later than the close of business on the later of (A) the 75th 90th day prior to the date of such Annual Meeting or (B) annual meeting or, if the first public announcement of the date of such annual meeting is less than 100 days prior to the date of such annual meeting, the 10th day following the day on which public announcement of the date of such Annual Meeting the annual meeting is first made. In no event shall any an adjournment or postponement of an Annual Meeting annual meeting, or the public announcement thereof thereof, commence a new time period for the giving of a shareholder Limited Partner’s notice as described above. Such shareholder’s .
B. further be updated and supplemented, if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of the record date for the meeting and as of the date that is ten (whether given 10) Business Days prior to the meeting or any adjournment or postponement thereof, and such updates and supplements shall be delivered to the General Partner pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (I) the name and address of such shareholder (as they appear on the Corporation’s books) and any such beneficial owner; (II) the Share Information (which Share Information required by this clause (II) shall be supplemented by such shareholder and any such beneficial owner 15.1 not later than ten days five (5) Business Days after the Meeting Record Date to disclose such Share Information as record date for the meeting in the case of the Meeting Record Date); (III) a representation that such shareholder is a holder of record of shares of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business update and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings supplement required to be made in connection with solicitations as of proxies forthe record date, as applicable, and not later than eight (8) Business Days prior to the proposal and/or date for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) meeting, any adjournment or postponement thereof in the case of any proposed nomination for election or re-election as a director, (1) the name update and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is supplement required to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as of ten (10) Business Days prior to how such nominee, if elected as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, meeting or any Affiliate adjournment or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal of such business by such shareholder. In the case of any proposed nomination for election or re-election as a director, the Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable shareholder’s understanding of the independence, or lack postponement thereof, of such nominee.
Appears in 1 contract
Annual Meetings. (ia) Subject The annual meeting of the stockholders of the corporation, for the purpose of election of directors and for such other business as may properly come before it, shall be held on such date and at such time as may be designated from time to Article IX time by the Board of these By-LawsDirectors. The corporation may postpone, nominations reschedule or cancel any annual meeting of stockholders previously scheduled by the Board of Directors. Nominations of persons for election to the Board of Directors of the corporation and the proposal proposals of other business to be considered by the shareholders stockholders may be made at an Annual Meeting annual meeting of stockholders: (Ai) pursuant to the Corporationcorporation’s notice of meeting, meeting of stockholders; (Bii) by or at the direction of the Board of Directors, Directors or a duly authorized committee thereof; or (Ciii) by any shareholder stockholder of the Corporation corporation who (1) is was a shareholder stockholder of record (and, with respect to any beneficial owner, if different, on whose behalf such business is proposed or such nomination or nominations are made, only if such beneficial owner was the beneficial owner of shares of the corporation) at the time of giving of the stockholder’s notice provided for in this Section 5(a5(b) and until and at the time of the Annual Meetingbelow, (2) who is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) complies who complied with the notice procedures set forth in this Section 5(a5. For the avoidance of doubt, clause (iii) as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) above shall be the exclusive means for a shareholder stockholder to make nominations or and submit other business (other than matters properly brought included in the corporation’s notice of meeting of stockholders and proxy statement under Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and included in the Corporation’s notice of meetingrules and regulations thereunder (the “1934 Act”)) before an Annual Meetingannual meeting of stockholders.
(iib) At an annual meeting of the stockholders, only such business shall be conducted as is a proper matter for stockholder action under Delaware law, the Certificate of Incorporation and these Bylaws, and only such nominations shall be made and such business shall be conducted as shall have been properly brought before the meeting in accordance with the procedures below.
(i) For nominations or any other business for the election to the Board of Directors to be properly brought before an Annual Meeting annual meeting by a shareholder stockholder pursuant to the foregoing clause (iii) of Section 5(a)(i)(C5(a), the shareholder stockholder must have given timely deliver written notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder action. To be timely, a shareholder’s notice shall be received by the Secretary at the principal executive offices of the Corporation not less than forty-five days nor more than seventy days prior to the first annual anniversary of the date corporation on a timely basis as set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting Section 5(b)(iii) and must update and supplement such written notice on a timely basis as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”set forth in Section 5(c); provided, however, that if the date for which the Annual Meeting is called is more than thirty days before or more than thirty days after the first annual anniversary of the immediately preceding Annual Meeting, then notice by the shareholder to be timely must be received by the Secretary not earlier than the close of business on the 100th day prior to the date of such Annual Meeting and not later than the later of (A) the 75th day prior to the date of such Annual Meeting or (B) the 10th day following the day on which public announcement of the date of such Annual Meeting is first made. In no event shall any adjournment or postponement of an Annual Meeting or the announcement thereof commence a new time period for the giving of a shareholder notice as described above. Such shareholderstockholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (IA) as to each nominee such stockholder proposes to nominate at the meeting: (1) the name name, age, business address and residence address of such shareholder nominee, (as they appear on the Corporation’s books) and any such beneficial owner; (II2) the Share Information principal occupation or employment of such nominee, (which Share Information required by this clause (II3) shall be supplemented by such shareholder the class or series and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (III) a representation that such shareholder is a holder of record number of shares of each class or series of capital stock of the Corporation entitled to vote under corporation that are owned of record and beneficially by such nominee, (4) the Articles date or dates on which such shares were acquired and the investment intent of Incorporation at such meeting with respect to such nomination or other business acquisition, and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV5) any all other information relating to concerning such shareholder and any such beneficial owner that nominee as would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of soliciting proxies for, as applicable, the proposal and/or for the election of directors such nominee as a director in a contested an election contest (even if an election contest is not involved and whether or not proxies are being or will be solicited), or that is otherwise required to be disclosed pursuant to Section 14 of the Exchange 1934 Act and the rules and regulations promulgated thereunder; (V) including such person’s written consent to being named in the case of any proposed nomination for election or re-election corporation’s proxy statement and associated proxy card as a director, (1) the name and residence address nominee of the person or persons stockholder and to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected serving as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed); and (VIIB) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description all of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal of such business information required by such shareholderSection 5(b)(iv). In the case of any proposed nomination for election or re-election as a director, the Corporation The corporation may require any proposed nominee to furnish such other information as it may reasonably be required by the Corporation require to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation corporation (as such term is used in any applicable stock exchange listing requirements or applicable law) or on any committee or sub-committee of the Board of Directors under any applicable stock exchange listing requirements or applicable law, or that could be material to a reasonable shareholderstockholder’s understanding of the independence, or lack thereof, of such proposed nominee. The number of nominees a stockholder may nominate for election at the annual meeting (or in the case of a stockholder giving the notice on behalf of a beneficial owner, the number of nominees a stockholder may nominate for election at the annual meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected at such annual meeting.
(ii) Other than proposals sought to be included in the corporation’s proxy materials pursuant to Rule 14a-8 under the 1934 Act, for business other than nominations for the election to the Board of Directors to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of Section 5(a), the stockholder must deliver written notice to the Secretary at the principal executive offices of the corporation on a timely basis as set forth in Section 5(b)(iii), and must update and supplement such written notice on a timely basis as set forth in Section 5(c). Such stockholder’s notice shall set forth: (A) as to each matter such stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend these Bylaws, the language of the proposed amendment), the reasons for conducting such business at the meeting, and any material interest (including any anticipated benefit of such business to any Proponent (as defined below) other than solely as a result of its ownership of the corporation’s capital stock, that is material to any Proponent individually, or to the Proponents in the aggregate) in such business of any Proponent; and (B) the information required by Section 5(b)(iv).
(iii) To be timely, the written notice required by Section 5(b)(i) or 5(b)(ii) must be received by the Secretary at the principal executive offices of the corporation not later than the close of business on the 90th day, nor earlier than the close of business on the 120th day, prior to the first anniversary of the immediately preceding year’s annual meeting; provided, however, that, subject to the last sentence of this Section 5(b)(iii), in the event that (A) the date of the annual meeting is advanced more than 30 days prior to or delayed by more than 30 days after the anniversary of the preceding year’s annual meeting, notice by the stockholder to be timely must be so received not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the tenth day following the day on which public announcement of the date of such meeting is first made by the corporation or (B) the corporation did not have an annual meeting in the preceding year, notice by the stockholder to be timely must be so received not later than the tenth day following the day on which public announcement of the date of such meeting is first made. In no event shall an adjournment or postponement of an annual meeting for which notice has been given, or the public announcement thereof has been made, commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
(iv) The written notice required by Sections 5(b)(i) or 5(b)(ii) shall also set forth, as of the date of the notice and as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (each, a “Proponent” and collectively, the “Proponents”): (A) the name and address of each Proponent, including, if applicable, such name and address as they appear on the corporation’s books and records; (B) the class, series and number of shares of each class or series of the capital stock of the corporation that are, directly or indirectly, owned of record or beneficially (within the meaning of Rule 13d-3 under the 0000 Xxx) by each Proponent (provided, that for purposes of this Section 5(b)(iv), such Proponent shall in all events be deemed to beneficially own all shares of any class or series of capital stock of the corporation as to which such Proponent has a right to acquire beneficial ownership at any time in the future); (C) a description of any agreement, arrangement or understanding (whether oral or in writing) with respect to such nomination or proposal (and/or the voting of shares of any class or series of capital stock of the corporation) between or among any Proponent and any of its affiliates or associates, and any others (including their names) acting in concert, or otherwise under the agreement, arrangement or understanding, with any of the foregoing; (D) a representation that the Proponents are holders of record or beneficial owners, as the case may be, of shares of the corporation at the time of giving notice, will be entitled to vote at the meeting, and intend to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice (with respect to a notice under Section 5(b)(i)) or to propose the business that is specified in the notice (with respect to a notice under Section 5(b)(ii)); (E) a representation as to whether the Proponents intend to deliver a proxy statement and form of proxy to holders of a sufficient number of the corporation’s voting shares to elect such nominee or nominees (with respect to a notice under Section 5(b)(i)) or to carry such proposal (with respect to a notice under Section 5(b)(ii)); (F) to the extent known by any Proponent, the name and address of any other stockholder supporting the proposal on the date of such stockholder’s notice; and (G) a description of all Derivative Transactions (as defined below) by each Proponent during the previous 12 month period, including the date of the transactions and the class, series and number of securities involved in, and the material economic terms of, such Derivative Transactions.
(c) A stockholder providing the written notice required by Section 5(b)(i) or (ii) shall update and supplement such notice in writing, if necessary, so that the information provided or required to be provided in such notice is true and correct in all material respects as of (i) the record date for the determination of stockholders entitled to notice of the meeting and (ii) the date that is five Business Days (as defined below) prior to the meeting and, in the event of any adjournment or postponement thereof, five Business Days prior to such adjourned or postponed meeting. In the case of an update and supplement pursuant to clause (i) of this Section 5(c), such update and supplement shall be received by the Secretary at the principal executive offices of the corporation not later than five Business Days after the later of the record date for the determination of stockholders entitled to notice of the meeting or the public announcement of such record date. In the case of an update and supplement pursuant to clause (ii) of this Section 5(c), such update and supplement shall be received by the Secretary at the principal executive offices of the corporation not later than two Business Days prior to the date for the meeting, and, in the event of any adjournment or postponement thereof, two Business Days prior to such adjourned or postponed meeting.
(d) Notwithstanding anything in Section 5(b)(iii) to the contrary, in the event that the number of directors in an Expiring Class (as defined below) to be elected to the Board of Directors at the annual meeting is increased effective after the time period for which nominations would otherwise be due under Section 5(b)(iii) and there is no public announcement by the corporation naming the nominees for the additional directorships at least 100 days before the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Section 5 and that complies with the requirements in Section 5(b)(i), other than the timing requirements in Section 5(b)(iii), shall also be considered timely, but only with respect to nominees for the additional directorships in such Expiring Class, 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 tenth day following the day on which such public announcement is first made by the corporation. For purposes of this section, an “Expiring Class” shall mean a class of directors whose term shall expire at the annual meeting of stockholders.
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Annual Meetings. (i) Subject An annual meeting of the Members holding Voting Units for the election of directors to Article IX the Board of these By-LawsDirectors and such other matters as the Board of Directors shall submit to a vote of the Members holding Voting Units shall be held at such date and time as may be fixed from time to time by the Board of Directors at such place within or without the State of Delaware as may be fixed from time to time by the Board of Directors and all as stated in the notice of the meeting. Notice of the annual meeting shall be given in accordance with Section 12.5 not less than 10 days nor more than 60 days prior to the date of such meeting.
(ii) At any annual meeting, only such nominations of persons for election to the Board of Directors shall be made, and only such other business shall be conducted or considered, as shall have been properly brought before the proposal meeting. For nominations to be properly made at an annual meeting, and proposals of other business to be considered by the shareholders may be made at properly brought before an Annual Meeting annual meeting, nominations and proposals of other business must be: (A) pursuant to specified in the Corporation’s notice of meeting, (B) otherwise properly made at the annual meeting, by or at the direction of the Board of Directors, Directors or (C) otherwise properly requested to be brought before the annual meeting by any shareholder a Member in accordance with this Section 12.4. For nominations of persons for election to the Corporation who Board of Directors or proposals of other business to be properly requested by a Member to be made at an annual meeting, a Member must (1I) is be a shareholder of record Member at the time of giving of notice provided for in this Section 5(a) and until of such annual meeting and at the time of the Annual Meetingannual meeting, (2II) is be entitled to vote with respect to at such nomination or other business at the annual meeting under the Articles of Incorporation and (3III) complies comply with the notice procedures set forth in this Section 5(a) 12.4 as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article IInomination. The immediately preceding clauses (C) and (D) sentence shall be the exclusive means for a shareholder Member to make nominations or submit other business proposals (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in the Corporation’s notice of meeting) before an Annual Meetingannual meeting.
(iiiii) For The Members holding Outstanding Voting Units shall vote together as a single class. The Members entitled to vote shall elect by a plurality of the votes cast, in person or by proxy, at such meeting persons to serve on the Board of Directors who are nominated in accordance with the provisions of this Article XII.
(iv) Without qualification or limitation, subject to any rights of the Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act and to this Section 12.4, for any nominations or any other business to be properly requested to be brought before an Annual Meeting annual meeting by a shareholder pursuant to the foregoing Section 5(a)(i)(C)Member, the shareholder Member must have given timely notice thereof (including, in the case of nominations, the completed and signed questionnaire, representation and agreement required by Section 12.13) in a proper form and timely updates and supplements thereof in writing to the Secretary Board of Directors and such other business must otherwise be a proper matter for shareholder Member action. To be timely, a shareholderMember’s notice shall must:
(A) be received by the Secretary at the principal offices of the Corporation not less than forty-five days nor more than seventy days prior delivered to the first annual anniversary Board of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available Directors pursuant to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”); provided, however, that if the date for which the Annual Meeting is called is more than thirty days before or more than thirty days after the first annual anniversary of the immediately preceding Annual Meeting, then notice by the shareholder to be timely must be received by the Secretary Section 14.1 not earlier than the close of business on the 100th 120th day nor later than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that (x) in the event that the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date and (y) in the case of the 2016 annual meeting, a Member’s notice to be timely must be so delivered not earlier than the close of business on the 120th day prior to the date of such Annual Meeting annual meeting and not later than the close of business on the later of (A) the 75th 90th day prior to the date of such Annual Meeting or (B) annual meeting or, if the first public announcement of the date of such annual meeting is less than 100 days prior to the date of such annual meeting, the 10th day following the day on which public announcement of the date of such Annual Meeting the annual meeting is first made. In no event shall any an adjournment or postponement of an Annual Meeting annual meeting, or the public announcement thereof thereof, commence a new time period for the giving of a shareholder Member’s notice as described above. Such shareholder’s .
(B) further be updated and supplemented, if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of the record date for the meeting and as of the date that is ten (whether given 10) Business Days prior to the meeting or any adjournment or postponement thereof, and such updates and supplements shall be delivered to the Board of Directors pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (I) the name and address of such shareholder (as they appear on the Corporation’s books) and any such beneficial owner; (II) the Share Information (which Share Information required by this clause (II) shall be supplemented by such shareholder and any such beneficial owner 14.1 not later than ten days five (5) Business Days after the Meeting Record Date to disclose such Share Information as record date for the meeting in the case of the Meeting Record Date); (III) a representation that such shareholder is a holder of record of shares of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business update and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings supplement required to be made in connection with solicitations as of proxies forthe record date, as applicable, and not later than eight (8) Business Days prior to the proposal and/or date for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) meeting, any adjournment or postponement thereof in the case of any proposed nomination for election or re-election as a director, (1) the name update and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is supplement required to be made as of ten (10) Business Days prior to the meeting or any adjournment or postponement thereof. The obligation to update and supplement set forth in this paragraph or any other provision of this Section 12.4 shall not limit the Company’s rights with respect to any deficiencies in any notice provided by such shareholder and a Member, extend any such beneficial ownerapplicable deadlines hereunder or enable or be deemed to permit a Member who has previously submitted notice hereunder to amend or update any proposal or to submit any new proposal, including without limitation any arrangement by changing or understanding with any Person as to how such nomineeadding nominees, if elected as a director of the Corporationmatters, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each business and/or resolutions proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before an annual meeting.
(v) This Article XII may not be amended except upon the meeting and, if such business includes a proposal to amend these By-Laws, the language prior approval of Members that hold 80% of the proposed amendment, (2) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal of such business by such shareholder. In the case of any proposed nomination for election or re-election as a director, the Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nomineeOutstanding Voting Units.
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Samples: Limited Liability Company Agreement (Atlas Energy Group, LLC)
Annual Meetings. (a) An annual meeting of stockholders shall be held for the election of directors and the transaction of such other business as may properly be brought before the meeting in accordance with these Bylaws at such date, time and place, if any, as may be fixed by resolution of the Board of Directors of the Corporation from time to time. The Board of Directors may, in its sole discretion, determine that the meeting shall not be held at any place, but shall be held solely by means of remote communication, subject to such guidelines and procedures as the Board of Directors may adopt, as permitted by applicable law. Subject to paragraph (b) of this Section 1.1, any other proper business may be transacted at an annual meeting.
(b) Only such business shall be conducted at an annual meeting of stockholders as shall have been properly brought before the meeting. For business to be properly brought before the meeting, it must be: (i) Subject to Article IX of these By-Laws, nominations of persons for election to authorized by the Board of Directors and specified in the proposal notice, or a supplemental notice, of other business to be considered by the shareholders may be made at an Annual Meeting (A) pursuant to the Corporation’s notice of meeting, (Bii) otherwise brought before the meeting by or at the direction of the Board of Directors, (C) by any shareholder Directors or the chairman of the Corporation who meeting, or (1iii) is a shareholder of record at the time of giving of notice provided for in this Section 5(a) and until and at the time of the Annual Meeting, (2) is entitled to vote with respect to such nomination or other business at otherwise properly brought before the meeting under the Articles of Incorporation and (3) complies with the notice procedures set forth in this Section 5(a) as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article IIa stockholder. The preceding clauses (C) and (D) shall be the exclusive means for a shareholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in the Corporation’s notice of meeting) before an Annual Meeting.
(ii) For nominations or any other business to be properly brought before an Annual Meeting annual meeting by a shareholder pursuant to the foregoing Section 5(a)(i)(C)stockholder, the shareholder stockholder must have given timely written notice thereof in writing to the Secretary of the Corporation, delivered or mailed to and such other business must otherwise be a proper matter for shareholder action. To be timely, a shareholder’s notice shall be received by the Secretary at the principal executive offices of the Corporation not less than forty-five 90 days nor more than seventy 120 days prior to the first annual anniversary date of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”)annual meeting; provided, however, that if in the date for which event that no annual meeting was held in the Annual Meeting previous year or the annual meeting is called for a date that is more than thirty not within 30 days before or more than thirty days after from the first annual anniversary date of the immediately preceding Annual Meetingyear’s annual meeting date, then written notice by the shareholder a stockholder in order to be timely must be received by the Secretary not earlier later than the close of business on the 100th day prior to the date of such Annual Meeting and not later than the later of (A) the 75th day prior to the date of such Annual Meeting or (B) the 10th tenth day following the day on which the first public announcement disclosure of the date of such Annual Meeting is first the annual meeting was made. Delivery shall be by hand or by certified or registered mail, return receipt requested. In no event shall any adjournment or postponement the public disclosure of an Annual Meeting or the announcement thereof adjournment of an annual meeting commence a new time period for the giving of a shareholder stockholder’s notice as described above. Such shareholderA stockholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by set forth as to each item of business the shareholder of record who intends stockholder proposes to make bring before the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature meeting: (1) a description of such shareholder item and any the reasons for conducting such beneficial owner and shall set forth: business at the meeting, (I2) the name and address of such shareholder (address, as they appear on the Corporation’s books) and any such beneficial owner; (II) the Share Information (which Share Information required by this clause (II) shall be supplemented by such shareholder and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as records, of the Meeting Record Date); stockholder proposing such business, (III3) a representation that such shareholder the stockholder is a holder of record of shares of stock of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make move the consideration of such nomination or introduce such other business; , (IV4) any other information relating to such shareholder the class and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations number of proxies for, as applicable, shares of stock of the proposal and/or Corporation which are beneficially owned by the stockholder (for purposes of the election of directors in a contested election pursuant to Section regulations under Sections 13 and 14 of the Securities Exchange Act of 1934, as amended), and the rules and regulations promulgated thereunder; (V) in the case of any proposed nomination for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (25) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee stockholder and any other Person person or Persons persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Personsnames) in connection with the proposal of such business by such shareholderstockholder and any material interest of such stockholder in such business. In No business shall be conducted at any annual meeting except in accordance with the case procedures set forth in this paragraph (b). The chairman of the meeting at which any business is proposed nomination for election or re-election as by a directorstockholder shall, if the facts warrant, determine and declare to the meeting that such business was not properly brought before the meeting in accordance with the provisions of this paragraph (b), and, in such event, the Corporation may require any proposed nominee to furnish such other information as may reasonably business not properly before the meeting shall not be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nomineetransacted.
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Annual Meetings. (i) Subject to Article IX of these By-Laws, nominations Nominations of persons for election to the Board of Directors of the Corporation and the proposal of other business to be considered by the shareholders may be made at an Annual Meeting (A) pursuant to the Corporation’s notice of meeting, (B) by or at the direction of the Board of Directors, Directors or (C) by any shareholder of the Corporation who (1) is a shareholder of record at the time of giving of notice provided for in this Section 5(a) 14 and until and at the time of the Annual Meeting, (2) who is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) complies with the notice procedures set forth in this Section 5(a) as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) shall be the exclusive means for a shareholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in the Corporation’s notice of meeting) before an Annual Meeting14.
(ii) For nominations or any other business to be properly brought before an Annual Meeting by a shareholder pursuant to the foregoing clause (C) of paragraph (a)(i) of this Section 5(a)(i)(C)14, the shareholder must have given timely notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder actionof the Corporation. To be timely, a shareholder’s notice shall be received by the Secretary of the Corporation at the principal offices of the Corporation not less than forty-five 45 days nor (except for shareholder proposals included in a proxy statement for such Annual Meeting in accordance with the requirements of Rule 14a-8 under the Exchange Act) more than seventy 70 days prior to the first annual anniversary of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to its shareholders mailed definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”); provided, however, that if in the event that the date for which the Annual Meeting is called is advanced by more than thirty 30 days before or delayed by more than thirty 30 days after from the first annual anniversary of the immediately preceding Annual Meeting, then notice by the shareholder to be timely must be received by the Secretary so delivered not earlier than the close of business on the 100th day prior to the date of such Annual Meeting and not later than the later of (A) the 75th day prior to the date of such Annual Meeting or (B) the 10th day following the day on which public announcement of the date of such Annual Meeting is first made. In no event shall any the announcement of an adjournment or postponement of an Annual Meeting or the announcement thereof commence a new time period for the giving of a shareholder notice as described above. Such shareholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business (or his duly authorized proxy or other representative), shall bear the date of signature of such shareholder (or proxy or other representative) and by shall set forth: (A) the name and address, as they appear on this Corporation’s books, of such shareholder and the beneficial owner or owners, if any, on whose behalf the shareholder nomination or proposal is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: made; (IB) the name class and address number of such shareholder (as they appear on shares of the Corporation’s books) and any such beneficial owner; (II) the Share Information (Corporation which Share Information required by this clause (II) shall be supplemented are beneficially owned by such shareholder and any such or beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date)or owners; (IIIC) a representation that such shareholder is a holder of record of shares of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make such the nomination or introduce such the other businessbusiness specified in the notice; (IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (VD) in the case of any proposed nomination for election or re-election as a director, (1I) the name and residence address of the person or persons to be nominated, (2II) a description of all agreements, arrangements or understandings between such shareholder and any such or beneficial owner or owners and each nominee and any other Person person or Persons persons (naming such Person person or Personspersons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of the Corporation, will act or vote on any issue or questionshareholder, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4III) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of Regulation 14A under the Exchange Act and Act, including any information that would be required to be included in a proxy statement filed pursuant to Regulation 14A had the rules and regulations promulgated thereunder, nominee been nominated by the Board of Directors and (5IV) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VIIE) in the case of any other business that such shareholder and any such beneficial owner propose proposes to bring before the meeting, (1I) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Lawslaws, the language of the proposed amendment, (2II) the such shareholder’s and beneficial owner’s or owners’ reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, meeting and (3III) any material interest in such business of such shareholder and any such beneficial owner and or owners.
(4iii) a description Notwithstanding anything in the second sentence of all agreementsparagraph (a)(ii) of this Section 14 to the contrary, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal event that the number of such business by such shareholder. In directors to be elected to the case Board of any proposed nomination for election or re-election as a director, Directors of the Corporation may require any proposed nominee to furnish such other information as may reasonably be required is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board of Directors made by the Corporation at least 45 days prior to determine the eligibility of Anniversary Date, a shareholder’s notice required by this Section 14 shall also be considered timely, but only with respect to nominees for any new positions created by such proposed nominee to serve as an independent director increase, if it shall be received by the Secretary at the principal offices of the Corporation or that could be material to a reasonable shareholder’s understanding not later than the close of business on the independence, or lack thereof, of 10th day following the day on which such nomineepublic announcement is first made by the Corporation.
Appears in 1 contract
Annual Meetings. (a) An annual meeting of stockholders shall be held for the election of directors and the transaction of such other business as may properly be brought before the meeting in accordance with these Bylaws at such date, time and place, if any, as may be fixed by resolution of the Board of Directors of the Corporation from time to time.
(b) Only such business (other than stockholder nominations of directors, which shall be made in compliance with, and shall be exclusively governed by, Section 3.1(a)) shall be conducted at an annual meeting of stockholders as shall have been properly brought before the meeting. For business to be properly brought before the meeting, it must be (i) Subject to Article IX of these By-Laws, nominations of persons for election to authorized by the Board of Directors and specified in the proposal notice, or a supplemental notice, of other business to be considered by the shareholders may be made at an Annual Meeting (A) pursuant to the Corporation’s notice of meeting, (Bii) otherwise brought before the meeting by or at the direction of the Board of Directors, or (Ciii) otherwise properly brought before the meeting by any shareholder a stockholder of the Corporation who (1) is was a shareholder stockholder of record both at the time of giving of notice by the stockholder as provided for in this Section 5(a) and until 2.1 and at the time of the Annual Meetingannual meeting of stockholders, (2) who is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation on any such business and (3) complies who has complied with the notice procedures and other requirements set forth in this Section 5(a) as to such nomination or other business or these Bylaws; clause (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (Diii) shall be the exclusive means for a shareholder stockholder to make nominations or submit other such business (other than matters proposals properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and included in the Corporation’s notice of the meeting, which proposals are not governed by these Bylaws) before an Annual Meetingannual meeting of stockholders.
(iic) For nominations or any other business to be properly brought before an Annual Meeting annual meeting by a shareholder stockholder pursuant to the foregoing Section 5(a)(i)(C2.1(b)(iii), the shareholder stockholder must have given timely written notice thereof in writing to the Secretary of the Corporation as hereinafter provided and such other business proposal must otherwise be a proper matter subject for shareholder actionaction by the Corporation’s stockholders. To be timely, a shareholderstockholder’s written notice shall set forth all information required under this Section 2.1(c) and shall be delivered or mailed to and received by the Secretary at the principal executive offices of the Corporation not less than forty-five 90 days nor more than seventy 120 days prior to the first annual anniversary of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to mailed its shareholders definitive proxy materials or a notice of availability of proxy materials (whichever is earlier) for the immediately preceding Annual Meeting (the “Anniversary Date”); year’s annual meeting; provided, however, that if in the date for which event that no annual meeting was held in the Annual Meeting previous year or the annual meeting is called for a date that is more than thirty not within 30 days before or more than thirty days after from the first annual anniversary of the immediately preceding Annual Meetingyear’s annual meeting date, then written notice by the shareholder a stockholder in order to be timely must be received by the Secretary not earlier than the close of business on the 100th 120th day prior to before the date of such Annual Meeting annual meeting and not later than the later of (A) the 75th 90th day prior to before the date of such Annual Meeting annual meeting, as originally convened, or (B) the 10th close of business on the tenth day following the day on which the first public announcement disclosure of the date of such Annual Meeting is first annual meeting was made. In no event shall any the public disclosure of an adjournment or postponement of an Annual Meeting or the announcement thereof annual meeting commence a new time period for the giving of a shareholder stockholder’s notice as described above. Such shareholderA stockholder’s notice (whether given to the Secretary delivered pursuant to this Section 5(a)(ii2.1(c) shall set forth:
(i) as to each matter the stockholder proposes to bring before the meeting, (A) a description of the proposal or Section 5(bbusiness (including the complete text of any resolutions to be presented at the annual meeting, and, in the event that such business includes a proposal to amend these Bylaws, the text of the proposed amendment) desired to be brought before the annual meeting, (B) the reasons for conducting such business at the annual meeting, and (C) any material interest in such business of such stockholder or any Stockholder Associated Person (as defined below), individually or in the aggregate, including any anticipated benefit to the stockholder or the Stockholder Associated Person therefrom;
(ii) to the Secretary shall be signed extent known by the shareholder of record who intends to make stockholder giving the nomination or introduce the other business and by the beneficial owner or ownersnotice, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (I) the name and address of such shareholder (as they appear any other stockholder supporting the proposal of business on the Corporationdate of such stockholder’s booksnotice;
(iii) as to the stockholder giving the notice and any such beneficial owner; Stockholder Associated Person:
(II1) the Share Information class or series and number of shares of capital stock or other securities of the Corporation (collectively, “Company Securities”), if any, which Share Information required by this clause (II) shall be supplemented are owned beneficially or of record by such shareholder person, the date(s) on which such Company Securities were acquired and the investment intent of such acquisition(s), and any short interest (including any opportunity to profit or share in any benefit from any decrease in the price of such beneficial owner stock or other security) in any Company Securities of any such person,
(2) the nominee holder for, and number of, any Company Securities owned beneficially but not later than ten days after of record by such person,
(3) whether and the Meeting Record Date extent to disclose which such Share Information as person, directly or indirectly (through brokers, nominees or otherwise), is subject to or during the last six months has engaged in any hedging, derivative or other transaction or series of transactions or entered into any other agreement, arrangement or understanding (including any short interest, any borrowing or lending of securities or any proxy or voting agreement), the Meeting Record Date)effect or intent of which is to (x) manage risk or the benefit of changes in the price of Company Securities for such person, or (y) increase or decrease the voting power of such person in the Corporation disproportionately to such person’s economic interest in the Company Securities; and
(III4) a representation that such shareholder is a holder of record of shares of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination stockholder or other business and Stockholder Associated Person intends to appear in person or by proxy at the annual meeting to make bring such nomination business before the meeting;
(iv) as to the stockholder giving the notice or introduce such other business; any Stockholder Associated Person with an interest or ownership referred to in clause (IVi) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations clause (iii)(C) of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to this Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) in the case of any proposed nomination for election or re-election as a director, 2.1(c):
(1) the name and residence address of such stockholder, as they appear on the person or persons to be nominatedCorporation’s stock ledger, and the current name and business address, if different, of each such Stockholder Associated Person, and
(2) the investment strategy or objective, if any, of such stockholder and each such Stockholder Associated Person who is not an individual and a copy of the prospectus, offering memorandum or similar document, if any, provided to investors or potential investors in such stockholder and each such Stockholder Associated Person;
(v) as to the stockholder giving the notice and any Stockholder Associated Person, a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee person and any other Person person or Persons persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Personsnames) in connection with the proposal of such business by such shareholder. In stockholder and any material interest of such stockholder or such beneficial owner in such business, including any anticipated benefit to the case of stockholder or such beneficial owner therefrom; and
(vi) as to the stockholder giving the notice and any proposed nomination for election Stockholder Associated Person, a representation that such person intends to appear in person or re-election as a directorby proxy at the annual meeting to bring such business before the meeting (the information described in clauses (iii) through (vi), the Corporation may require any proposed nominee to furnish such other information as may reasonably be “Proposing Stockholder Information”).
(d) Unless otherwise required by law, if a stockholder (or qualified representative) does not appear at the Corporation meeting of stockholders to determine the eligibility present business proposed by such stockholder pursuant to Section 2.1(c), such proposed business shall not be transacted, even though proxies in respect of such proposed nominee to serve as an independent director vote may have been received by the Corporation. No business shall be conducted at any annual meeting except in accordance with the procedures set forth in
Section 2.1. The chairman of the Corporation or meeting at which any business is proposed by a stockholder shall, if the facts warrant, determine and declare to the meeting that could such business was not properly brought before the meeting in accordance with the provisions of Section 2.1(c), and in such event, the business not properly before the meeting shall not be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nomineetransacted.
Appears in 1 contract
Samples: Governance Agreement (UCP, Inc.)
Annual Meetings. (i) Subject An annual meeting of the Members holding Voting Shares for the election of directors to Article IX the Board of these By-LawsDirectors and such other matters as the Board of Directors shall submit to a vote of the Members holding Voting Shares shall be held at such date and time as may be fixed from time to time by the Board of Directors at such place within or outside the State of Delaware as may be fixed from time to time by the Board of Directors and all as stated in the notice of the meeting. Notice of the annual meeting shall be given in accordance with Section 12.4 not less than 10 days nor more than 60 days prior to the date of such meeting.
(ii) At any annual meeting, only such nominations of persons for election to the Board of Directors shall be made, and only such other business shall be conducted or considered, as shall have been properly brought before the proposal meeting. For nominations to be properly made at an annual meeting, and proposals of other business to be considered by the shareholders may be made at properly brought before an Annual Meeting annual meeting, nominations and proposals of other business must be: (A) pursuant to specified in the Corporation’s notice of meetingmeeting (unless relating to Section 7.1(e) nominations), (B) otherwise properly made at the annual meeting, by or at the direction of the Board of Directors, Directors and/or pursuant to Section 7.1(e) or (C) otherwise properly requested to be brought before the annual meeting by any shareholder a Member in accordance with this Section 12.3 and/or Section 7.1(e). For nominations of persons for election to the Corporation who Board of Directors or proposals of other business to be properly requested by a Member to be made at an annual meeting, a Member must (1I) is be a shareholder of record Member at the time of giving of notice provided for in this Section 5(a) and until of such annual meeting and at the time of the Annual Meetingannual meeting, (2II) is be entitled to vote with respect to at such nomination or other business at the annual meeting under the Articles of Incorporation and (3III) complies comply with the notice procedures set forth in this Section 5(a12.3 and/or Section 7.1(e) as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article IInomination. The immediately preceding clauses (C) and (Dsentence and/or Section 7.1(e) shall be the exclusive means for a shareholder Member to make nominations or submit other business proposals (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in the Corporation’s notice of meeting) before an Annual Meetingannual meeting.
(iiiii) For The Members holding Outstanding Common Shares shall vote together as a single class. The Members entitled to vote shall elect by a plurality of the votes cast, in person or by proxy, at such meeting persons to serve on the Board of Directors who are nominated in accordance with the provisions of this Article XII and/or pursuant to Section 7.1(e).
(iv) Without qualification or limitation, subject to any rights of the Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act and to this Section 12.3, for any nominations (other than those brought under Section 7.1(e)) or any other business to be properly requested to be brought before an Annual Meeting annual meeting by a shareholder pursuant to the foregoing Section 5(a)(i)(C)Member, the shareholder Member must have given timely notice thereof (including, in the case of nominations (other than those brought under Section 7.1(e)), the completed and signed questionnaire, representation and agreement required by Section 12.12) in a proper form and timely updates and supplements thereof in writing to the Secretary Board of Directors and such other business must otherwise be a proper matter for shareholder Member action. To be timely, a shareholderMember’s notice shall must: (G) be received by the Secretary at the principal offices of the Corporation not less than forty-five days nor more than seventy days prior delivered to the first annual anniversary Board of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available Directors pursuant to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”); provided, however, that if the date for which the Annual Meeting is called is more than thirty days before or more than thirty days after the first annual anniversary of the immediately preceding Annual Meeting, then notice by the shareholder to be timely must be received by the Secretary Section 14.1 not earlier than the close of business on the 100th 120th day nor later than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, a Member’s notice to be timely must be so delivered not earlier than the close of business on the 120th day prior to the date of such Annual Meeting annual meeting and not later than the close of business on the later of (A) the 75th 90th day prior to the date of such Annual Meeting or (B) annual meeting or, if the first public announcement of the date of such annual meeting is less than 100 days prior to the date of such annual meeting, the 10th day following the day on which public announcement of the date of such Annual Meeting the annual meeting is first made. In no event shall any an adjournment or postponement of an Annual Meeting annual meeting, or the public announcement thereof thereof, commence a new time period for the giving of a shareholder Member’s notice as described above. Such shareholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (I) the name and address of such shareholder (as they appear on the Corporation’s books) and any such beneficial owner; (II) the Share Information (which Share Information required by this clause (II) shall be supplemented by such shareholder and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (III) a representation that such shareholder is a holder of record of shares of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) in the case of any proposed nomination for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal of such business by such shareholder. In the case of any proposed nomination for election or re-election as a director, the Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nominee.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Titan Energy, LLC)
Annual Meetings. (ia) Subject The annual meeting of the stockholders of the corporation, for the purpose of election of directors and for such other business as may properly come before it, shall be held on such date and at such time as may be designated from time to Article IX time by the Board of these By-Laws, nominations Directors. Nominations of persons for election to the Board of Directors of the corporation and the proposal of other business to be considered by the shareholders stockholders may be made at an Annual Meeting annual meeting of stockholders: (Ai) pursuant to the Corporationcorporation’s notice of meeting, meeting of stockholders (Bwith respect to business other than nominations); (ii) brought specifically by or at the direction of the Board of Directors, ; or (Ciii) by any shareholder stockholder of the Corporation corporation who (1) is was a shareholder stockholder of record at the time of giving of the stockholder’s notice provided for in this Section 5(a5(b) of these Second Amended and until and at Restated Bylaws (the time of the Annual Meeting“Bylaws”), (2) who is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) complies who complied with the notice procedures set forth in this Section 5(a) as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II5. The preceding clauses number of nominees a stockholder may nominate for election at an annual meeting of stockholders (Cor in the case of a stockholder giving notice on behalf of a beneficial owner, the number of nominees a stockholder may nominate for election at the annual meeting on behalf of such beneficial owner) and shall not exceed the number of directors to be elected at such meeting. For the avoidance of doubt, clause (Diii) above shall be the exclusive means for a shareholder stockholder to make nominations or and submit other business (other than matters properly brought included in the corporation’s notice of meeting of stockholders and proxy statement under Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and included in the Corporation’s notice of meetingrules and regulations thereunder (the “1934 Act”)) before an Annual Meetingannual meeting of stockholders.
(iib) At an annual meeting of the stockholders, only such business shall be conducted as is a proper matter for stockholder action under Delaware law and as shall have been properly brought before the meeting.
(i) For nominations or any other business for the election to the Board of Directors to be properly brought before an Annual Meeting annual meeting by a shareholder stockholder pursuant to the foregoing clause (iii) of Section 5(a)(i)(C)5(a) of these Bylaws, the shareholder stockholder must have given timely deliver written notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder action. To be timely, a shareholder’s notice shall be received by the Secretary at the principal executive offices of the Corporation not less than forty-five days nor more than seventy days prior to the first annual anniversary of the date corporation on a timely basis as set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting Section 5(b)(iii) of these Bylaws and must update and supplement such written notice on a timely basis as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”); provided, however, that if the date for which the Annual Meeting is called is more than thirty days before or more than thirty days after the first annual anniversary set forth in Section 5(c) of the immediately preceding Annual Meeting, then notice by the shareholder to be timely must be received by the Secretary not earlier than the close of business on the 100th day prior to the date of such Annual Meeting and not later than the later of (A) the 75th day prior to the date of such Annual Meeting or (B) the 10th day following the day on which public announcement of the date of such Annual Meeting is first made. In no event shall any adjournment or postponement of an Annual Meeting or the announcement thereof commence a new time period for the giving of a shareholder notice as described abovethese Bylaws. Such shareholderstockholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (IA) as to each nominee such stockholder proposes to nominate at the meeting: (1) the name name, age, business address and residence address of such shareholder (as they appear on the Corporation’s books) and any such beneficial ownernominee; (II2) the Share Information (which Share Information required by this clause (II) shall be supplemented by principal occupation or employment of such shareholder and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date)nominee; (III3) a representation that such shareholder is a holder of record the class and number of shares of each class of capital stock of the Corporation entitled to vote under corporation which are owned of record and beneficially by such nominee; (4) the Articles date or dates on which such shares were acquired and the investment intent of Incorporation at such meeting acquisition; (5) with respect to such nomination each nominee for election or other business re-election to the Board of Directors, include a completed and intends to appear in person or signed questionnaire, representation and agreement required by proxy at the meeting to make such nomination or introduce Section 5(e) of these Bylaws; and (6) such other business; (IV) any other information relating to concerning such shareholder and any such beneficial owner that nominee as would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of soliciting proxies for, as applicable, the proposal and/or for the election of directors such nominee as a director in a contested an election contest (even if an election contest is not involved), or that is otherwise required to be disclosed pursuant to Section 14 of the Exchange 1934 Act and the rules and regulations promulgated thereunder; thereunder (V) in the case of any proposed nomination for election or re-election including such person’s written consent to being named as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected serving as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed); and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2B) the reasons information required by Section 5(b)(iv) of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal of such business by such shareholderthese Bylaws. In the case of any proposed nomination for election or re-election as a director, the Corporation The corporation may require any proposed nominee to furnish such other information as it may reasonably be required by the Corporation require to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation corporation or that could be material to a reasonable shareholderstockholder’s understanding of the independence, or lack thereof, of such proposed nominee.
(ii) Other than proposals sought to be included in the corporation’s proxy materials pursuant to Rule 14(a)-8 under the 1934 Act, for business other than nominations for the election to the Board of Directors to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of Section 5(a) of these Bylaws, the stockholder must deliver written notice to the Secretary at the principal executive offices of the corporation on a timely basis as set forth in Section 5(b)(iii) of these Bylaws, and must update and supplement such written notice on a timely basis as set forth in Section 5(c) of these Bylaws. Such stockholder’s notice shall set forth: (A) as to each matter such stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting, and any material interest (including any anticipated benefit of such business to any Proponent (as defined below) other than solely as a result of its ownership of the corporation’s capital stock, that is material to any Proponent individually, or to the Proponents in the aggregate) in such business of any Proponent; and (B) the information required by Section 5(b)(iv) of these Bylaws.
(iii) To be timely, the written notice required by Section 5(b)(i) or 5(b)(ii) of these Bylaws must be received by the Secretary at the principal executive offices of the corporation not later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that, subject to the last sentence of this Section 5(b)(iii), in the event that the date of the annual meeting is advanced more than 30 days prior to or delayed by more than 60 days after the anniversary of the preceding year’s annual meeting, or if no annual meeting was held in the preceding year, notice by the stockholder to be timely must be so received not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting and the 10th day following the day on which notice of the date of such annual meeting was mailed or public announcement of the date of such meeting is first made, whichever first occurs. In no event shall an adjournment or a postponement of an annual meeting for which notice has been given, or the public announcement thereof has been made, commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
(iv) The written notice required by Section 5(b)(i) or 5(b)(ii) of these Bylaws shall also set forth, as of the date of the notice and as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (each, a “Proponent” and collectively, the “Proponents”): (A) the name and address of each Proponent, as they appear on the corporation’s books; (B) the class, series and number of shares of the corporation that are owned beneficially and of record by each Proponent; (C) a description of any agreement, arrangement or understanding (whether oral or in writing) with respect to such nomination or proposal between or among any Proponent and any of its affiliates or associates, and any others (including their names) acting in concert, or otherwise under the agreement, arrangement or understanding, with any of the foregoing; (D) a representation that the Proponents are holders of record or beneficial owners, as the case may be, of shares of the corporation entitled to vote at the meeting and intend to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice (with respect to a notice under Section 5(b)(i) of these Bylaws) or to propose the business that is specified in the notice (with respect to a notice under Section 5(b)(ii) of these Bylaws); (E) a representation as to whether the Proponents intend to deliver a proxy statement and form of proxy to holders of a sufficient number of holders of the corporation’s voting shares to elect such nominee or nominees (with respect to a notice under Section 5(b)(i) of these Bylaws) or to carry such proposal (with respect to a notice under Section 5(b)(ii) of these Bylaws); (F) to the extent known by any Proponent, the name and address of any other stockholder supporting the proposal on the date of such stockholder’s notice; and (G) a description of all Derivative Transactions (as defined below) by each Proponent during the previous 12-month period, including the date of the transactions and the class, series and number of securities involved in, and the material economic terms of, such Derivative Transactions.
Appears in 1 contract
Samples: Business Combination Agreement (Amplitude Healthcare Acquisition Corp)
Annual Meetings. (ia) Subject The annual meeting of the stockholders of the corporation, for the purpose of election of directors and for such other business as may properly come before it, shall be held on such date and at such time as may be designated from time to Article IX time by the Board of Directors. The Board of Directors acting pursuant to a resolution adopted by a majority of the Whole Board may cancel, postpone or reschedule any previously scheduled annual meeting at any time, before or after the notice for such meeting has been sent to the stockholders. For the purposes of these By-LawsAmended and Restated Bylaws (the “Bylaws”), nominations the term “Whole Board” shall mean the total number of authorized directorships whether or not there exist any vacancies or other unfilled seats in previously authorized directorships. Nominations of persons for election to the Board of Directors of the corporation and the proposal of other business to be considered by the shareholders stockholders may be made at an Annual Meeting annual meeting of stockholders only: (Ai) pursuant to the Corporationcorporation’s notice of meeting, meeting of stockholders (Bor any supplement thereto); (ii) by or at the direction of the Board of Directors, or any committee thereof that has been formally delegated authority to nominate such persons or propose such business pursuant to a resolution adopted by a majority of the total number of authorized directors; (Ciii) as may be provided in the certificate of designations for any class or series of Preferred Stock; or (iv) by any shareholder stockholder of the Corporation corporation who (1A) is a shareholder stockholder of record at the time of giving the stockholder’s notice contemplated by Section 5 of these Bylaws, (B) is a stockholder of record on the record date for the determination of stockholders entitled to notice provided of the annual meeting, (C) is a stockholder of record on the record date for in this Section 5(athe determination of stockholders entitled to vote at the annual meeting, (D) and until and is a stockholder of record at the time of the Annual Meetingannual meeting, (2) is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3E) complies with the notice procedures set forth in this Section 5(a5 of these Bylaws. For the avoidance of doubt, clause (iv) as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) above shall be the exclusive means for a shareholder stockholder to make nominations or and submit other business (other than matters properly brought included in the corporation’s notice of meeting of stockholders and proxy statement under Rule 14a-8 under the Securities Exchange Act and included in the Corporation’s notice of meeting) before an Annual Meeting.
(ii) For nominations or any other business to be properly brought before an Annual Meeting by a shareholder pursuant to the foregoing Section 5(a)(i)(C), the shareholder must have given timely notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder action. To be timely, a shareholder’s notice shall be received by the Secretary at the principal offices of the Corporation not less than forty-five days nor more than seventy days prior to the first annual anniversary of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”); provided, however, that if the date for which the Annual Meeting is called is more than thirty days before or more than thirty days after the first annual anniversary of the immediately preceding Annual Meeting, then notice by the shareholder to be timely must be received by the Secretary not earlier than the close of business on the 100th day prior to the date of such Annual Meeting and not later than the later of (A) the 75th day prior to the date of such Annual Meeting or (B) the 10th day following the day on which public announcement of the date of such Annual Meeting is first made. In no event shall any adjournment or postponement of an Annual Meeting or the announcement thereof commence a new time period for the giving of a shareholder notice as described above. Such shareholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (I) the name and address of such shareholder (as they appear on the Corporation’s books) and any such beneficial owner; (II) the Share Information (which Share Information required by this clause (II) shall be supplemented by such shareholder and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (III) a representation that such shareholder is a holder of record of shares of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for1934, as applicableamended, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; thereunder (V) in the case of any proposed nomination for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes 1934 Act”)) before an annual meeting of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal of such business by such shareholder. In the case of any proposed nomination for election or re-election as a director, the Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nomineestockholders.
Appears in 1 contract
Annual Meetings. (ia) Subject The annual meeting of the stockholders of the corporation, for the purpose of election of directors and for such other business as may properly come before it, shall be held on such date and at such time as may be designated from time to Article IX time by the Board of these By-Laws, nominations Directors. Nominations of persons for election to the Board of Directors and the proposal of other business to be considered by the shareholders stockholders may be made at an Annual Meeting annual meeting of stockholders: (Ai) pursuant to the Corporationcorporation’s notice of meeting, meeting of stockholders (Bwith respect to business other than nominations) or any supplement thereto; (ii) brought specifically by or at the direction of the Board of Directors, ; or (Ciii) by any shareholder stockholder of the Corporation corporation who (1) is was a shareholder stockholder of record at the time of giving of the stockholder’s notice provided for in this Section 5(a5(b) and until and at the time of the Annual Meetingbelow, (2) who is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) complies who complied with the notice procedures set forth in this Section 5(a5. For the avoidance of doubt, clause (iii) as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) above shall be the exclusive means for a shareholder stockholder to make nominations or and submit other business (other than matters properly brought included in the corporation’s notice of meeting of stockholders and proxy statement under Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and included in the Corporation’s notice of meetingrules and regulations thereunder (the “1934 Act”)) before an Annual Meetingannual meeting of stockholders.
(iib) At an annual meeting of the stockholders, only such business shall be conducted as is a proper matter for stockholder action under Delaware law and as shall have been properly brought before the meeting in accordance with the procedures below.
(i) For nominations or any other business for the election to the Board of Directors to be properly brought before an Annual Meeting annual meeting by a shareholder stockholder pursuant to the foregoing clause (iii) of Section 5(a)(i)(C5(a), the shareholder stockholder must have given timely deliver written notice thereof in writing to the Secretary at the principal executive offices of the corporation on a timely basis as set forth in Section 5(b)(iii) and must update and supplement such written notice on a timely basis as set forth in Section 5(c). Such stockholder’s notice shall set forth: (A) as to each nominee such stockholder proposes to nominate at the meeting: (1) the name, age, business address and residence address of such nominee, (2) the principal occupation or employment of such nominee, (3) the class and number of shares of each class of capital stock of the corporation which are owned of record and beneficially by such nominee, (4) the date or dates on which such shares were acquired and the investment intent of such acquisition, (5) a description of all Derivative Transactions (as defined below) by such nominee during the previous twelve (12) month period, including the date of the transactions and the class, series and number of securities involved in, and the material economic terms of, such Derivative Transactions, (6) a written statement executed by such nominee that such nominee agrees to tender an irrevocable resignation to the Secretary of the corporation, to be effective upon such person’s failure to receive the required vote for re-election in any uncontested election at which such person would face re-election and acceptance of such resignation by the Board of Directors, (7) a written statement executed by such nominee that such nominee acknowledges that as a director of the corporation, such nominee will owe a fiduciary duty under Delaware law with respect to the corporation and its stockholders, (8) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three (3) years, and any other material relationships, between or among any Proponent (as defined below), on the one hand, and such nominee, such nominee’s affiliates and associates and any other persons with whom such nominee (or any of such nominee’s affiliates and associates) is acting in concert, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 under Regulation S-K, (9) such other information concerning such nominee as would be required to be disclosed in a proxy statement soliciting proxies for the election of such nominee as a director in an election contest (even if an election contest is not involved), or that is otherwise required to be disclosed pursuant to Section 14 of the 1934 Act and the rules and regulations promulgated thereunder (including such person’s written consent to being named as a nominee and to serving as a director if elected), (10) such other information as the corporation may reasonably require such nominee to furnish in order for the corporation to determine the eligibility of such nominee to serve as an independent director of the corporation or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such nominee, and (11) a written questionnaire, in the form required by the Secretary of the corporation, with respect to the background and qualifications of such nominee and the background and other relevant facts about the Proponent and each other person on whose behalf the nomination is being made (which questionnaire shall be provided by the Secretary upon written request) and a written representation and agreement (in the form provided by the Secretary upon written request) that, among other matters, such nominee: (i) is not and will not become a party to any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person as to how such potential nominee, if elected as a director, will act or vote on any issue or question that has not been disclosed in such questionnaire; (ii) is not and will not become a party to any agreement, arrangement or understanding with any person other than the corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed in such questionnaire; (iii) would be in compliance, if elected or re-elected as a director, and will comply with, applicable law and all corporate governance, conflict of interest, confidentiality and other policies and guidelines of the corporation applicable to directors generally and publicly available (whether on the corporation’s website or otherwise) as of the date of such representation and agreement and (iv) intends to serve as a director for the full term for which such person is standing for election; and (B) the information required by Section 5(b)(iv). The corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as an independent director of the corporation or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such proposed nominee. Any such update or supplement shall be delivered to the Secretary at the principal executive offices of the corporation not later than five (5) business days after the request by the corporation for subsequent information has been delivered to such stockholder.
(ii) Other than proposals sought to be included in the corporation’s proxy materials pursuant to Rule 14a-8 under the 1934 Act, for business other than nominations for the election to the Board of Directors to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of Section 5(a), the stockholder must otherwise deliver written notice to the Secretary at the principal executive offices of the corporation on a timely basis as set forth in Section 5(b)(iii), and must update and supplement such written notice on a timely basis as set forth in Section 5(c). Such stockholder’s notice shall set forth: (A) as to each matter such stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event such business includes a proper matter for shareholder action. proposal to amend these Bylaws, the language of the proposed amendment), and any material interest (including any anticipated benefit of such business to any Proponent (as defined below) other than solely as a result of its ownership of the corporation’s capital stock, that is material to any Proponent individually, or to the Proponents in the aggregate) in such business of any Proponent; and (B) the information required by Section 5(b)(iv).
(iii) To be timely, a shareholder’s the written notice shall required by Section 5(b)(i) or 5(b)(ii) must be received by the Secretary at the principal executive offices of the Corporation corporation not less later than forty-five days the close of business on the ninetieth (90th) day nor more earlier than seventy days the close of business on the one hundred twentieth (120th) day prior to the first annual anniversary of the date set forth in preceding year’s annual meeting of the Corporation’s proxy statement for stockholders of the immediately preceding Annual Meeting as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”)corporation; provided, however, that, subject to the last sentence of this Section 5(b)(iii), in the event that if the date for which of the Annual Meeting annual meeting is called is advanced more than thirty (30) days before prior to or delayed by more than thirty (30) days after the first annual anniversary of the immediately preceding Annual Meetingyear’s annual meeting, then notice by the shareholder stockholder to be timely must be so received by the Secretary not earlier than the close of business on the 100th one hundred twentieth (120th) day prior to the date of such Annual Meeting annual meeting and not later than the close of business on the later of the ninetieth (A90th) the 75th day prior to such annual meeting or the date of such Annual Meeting or tenth (B10th) the 10th day following the day on which public announcement of the date of such Annual Meeting meeting is first made. In no event shall any an adjournment or a postponement of an Annual Meeting annual meeting of the stockholders of the corporation for which notice has been given, or the public announcement thereof has been made, commence a new time period (or extend any time period) for the giving of a shareholder stockholder’s notice as described above. Such shareholder’s .
(iv) The written notice (whether given pursuant to this required by Section 5(a)(ii5(b)(i) or Section 5(b)5(b)(ii) shall also set forth, as of the date of the notice and as to the Secretary shall be signed by stockholder giving the shareholder of record who intends to make the nomination or introduce the other business notice and by the beneficial owner or ownersowner, if any, on whose behalf the shareholder nomination or proposal is actingmade (each, shall bear a “Proponent” and collectively, the date of signature of such shareholder and any such beneficial owner and shall set forth: “Proponents”): (IA) the name and address of such shareholder (each Proponent, as they appear on the Corporationcorporation’s books) and any such beneficial owner; (IIB) the Share Information (which Share Information required by this clause (II) shall be supplemented by such shareholder class, series and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (III) a representation that such shareholder is a holder of record number of shares of the Corporation entitled to vote under the Articles corporation that are owned beneficially and of Incorporation at such meeting record by each Proponent; (C) a description of any agreement, arrangement or understanding (whether oral or in writing) with respect to such nomination or other business proposal between or among any Proponent and intends any of its affiliates or associates, and any others (including their names) acting in concert, or otherwise under the agreement, arrangement or understanding, with any of the foregoing; (D) any proxy, contract, arrangement, understanding or relationship pursuant to which any Proponent or such Proponent’s nominee has a right to vote any class or series of shares of the corporation; (E) any direct or indirect interest of any Proponent or such Proponent’s nominee in any contract with the corporation, any affiliate of the corporation or any principal competitor of the corporation (including, without limitation, any employment agreement, collective bargaining agreement or consulting agreement); (F) a representation that the Proponents are holders of record or beneficial owners, as the case may be, of shares of the corporation entitled to vote at the meeting and intend to appear in person or by proxy at the meeting to make such nomination nominate the person or introduce such other businesspersons specified in the notice (with respect to a notice under Section 5(b)(i)) or to propose the business that is specified in the notice (with respect to a notice under Section 5(b)(ii)); (IVG) a representation as to whether the Proponents intend to deliver a proxy statement and form of proxy to holders of a sufficient number of holders of the corporation’s voting shares to elect such nominee or nominees (with respect to a notice under Section 5(b)(i)) or to carry such proposal (with respect to a notice under Section 5(b)(ii)); (H) to the extent known by any Proponent, the name and address of any other stockholder supporting the proposal on the date of such stockholder’s notice; (I) any pending or threatened litigation in which any Proponent is a party; (J) if such Proponent is not a natural person, the identity of the natural person or persons associated with such Proponent responsible for the formulation of and decision to propose the business to be brought before the meeting (such person or persons, the “Responsible Person”), the manner in which such Responsible Person was selected, any fiduciary duties owed by such Responsible Person to the equity holders or other beneficiaries of such Proponent, the qualifications and background of such Responsible Person and any material interests or relationships of such Responsible Person that are not shared generally by any other record or beneficial holder of the shares of any class or series of the corporation and that reasonably could have influenced the decision of such Proponent to propose such business to be brought before the meeting of stockholders; (K) a certification regarding whether each Proponent has complied with all federal, state and other legal requirements in connection with such Proponent’s acquisition of shares of capital stock or other securities of the corporation; (L) any other information relating to such shareholder and any such beneficial owner each Proponent 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 stockholder proposals pursuant to Section 14 of the Exchange Act 1934 Act; (M) a description of all Derivative Transactions (as defined below) by each Proponent during the previous twelve (12) month period, including the date of the transactions and the rules class, series and regulations promulgated thereundernumber of securities involved in, and the material economic terms of, such Derivative Transactions; (VN) any significant equity interest in, or any Derivative Transaction with respect to, any principal competitor of the corporation held by any Proponent; and (O) in the case of any proposed nomination for election or re-election as director nominations being brought before an annual meeting, a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made written undertaking by such shareholder and any such Proponent or the beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nomineeif any, if elected as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of made that such rule and the nominee were a director or executive officer of such registrantparty will deliver, (4i) such other information regarding each nominee proposed by such shareholder at least 20 calendar days before the annual meeting, a copy of its definitive proxy statement and any such beneficial owner as form of proxy or (ii) at least 40 calendar days before the annual meeting a Notice of Internet Availability of Proxy Materials that would be required to be disclosed in solicitations satisfy the requirements of proxies for contested elections Rule 14a-16(d) of directors, or would be otherwise required to be disclosedthe Exchange Act, in each case pursuant case, to Section 14 holders of at least 67% of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent voting power of each nominee to be named in a proxy statement and to serve as a director all of the Corporation if so elected; (VI) shares of capital stock of the corporation entitled to vote generally in the case election of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal of such business by such shareholder. In the case of any proposed nomination for election or re-election as a director, the Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nomineedirectors.
Appears in 1 contract
Samples: Merger Agreement (Forest Road Acquisition Corp. II)
Annual Meetings. (i) Subject to Article IX of these By-Laws, nominations Nominations of persons for election to the Board of Directors of the Corporation and the proposal of other business to be considered by the shareholders may be made at an Annual Meeting (A) pursuant to the Corporation’s 's notice of meeting, (B) by or at the direction of the Board of Directors, Directors or (C) by any shareholder of the Corporation who (1) is a shareholder of record at the time of giving of notice provided for in this Section 5(a) 14 and until and at the time of the Annual Meeting, (2) who is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) complies with the notice procedures set forth in this Section 5(a) as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) shall be the exclusive means for a shareholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in the Corporation’s notice of meeting) before an Annual Meeting14.
(ii) For nominations or any other business to be properly brought before an Annual Meeting by a shareholder pursuant to the foregoing clause (C) of paragraph (a)(i) of this Section 5(a)(i)(C)14, the shareholder must have given timely notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder actionof the Corporation. To be timely, a shareholder’s 's notice shall be received by the Secretary of the Corporation at the principal offices of the Corporation not less than forty-five 45 days nor (except for shareholder proposals included in a proxy statement for such Annual Meeting in accordance with the requirements of Rule 14a-8 under the Exchange Act) more than seventy 70 days prior to the first annual anniversary of the date set forth in the Corporation’s 's proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to its shareholders mailed definitive proxy materials for the immediately preceding Annual Meeting (the “"Anniversary Date”"); provided, however, that if in the event that the date for which the Annual Meeting is called is advanced by more than thirty 30 days before or delayed by more than thirty 30 days after from the first annual anniversary of the immediately preceding Annual Meeting, then notice by the shareholder to be timely must be received by the Secretary so delivered not earlier than the close of business on the 100th day prior to the date of such Annual Meeting and not later than the later of (A) the 75th day prior to the date of such Annual Meeting or (B) the 10th day following the day on which public announcement of the date of such Annual Meeting is first made. In no event shall any the announcement of an adjournment or postponement of an Annual Meeting or the announcement thereof commence a new time period for the giving of a shareholder notice as described above. Such shareholder’s 's notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business (or his duly authorized proxy or other representative), shall bear the date of signature of such shareholder (or proxy or other representative) and by shall set forth: (A) the name and address, as they appear on this Corporation's books, of such shareholder and the beneficial owner or owners, if any, on whose behalf the shareholder nomination or proposal is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: made; (IB) the name class and address number of such shareholder (as they appear on shares of the Corporation’s books) and any such beneficial owner; (II) the Share Information (Corporation which Share Information required by this clause (II) shall be supplemented are beneficially owned by such shareholder and any such or beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date)or owners; (IIIC) a representation that such shareholder is a holder of record of shares of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make such the nomination or introduce such the other businessbusiness specified in the notice; (IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (VD) in the case of any proposed nomination for election or re-election as a director, (1I) the name and residence address of the person or persons to be nominated, (2II) a description of all agreements, arrangements or understandings between such shareholder and any such or beneficial owner or owners and each nominee and any other Person person or Persons persons (naming such Person person or Personspersons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of the Corporation, will act or vote on any issue or questionshareholder, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4III) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of Regulation 14A under the Exchange Act and Act, including any information that would be required to be included in a proxy statement filed pursuant to Regulation 14A had the rules and regulations promulgated thereunder, nominee been nominated by the Board of Directors and (5IV) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VIIE) in the case of any other business that such shareholder and any such beneficial owner propose proposes to bring before the meeting, (1I) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Lawslaws, the language of the proposed amendment, (2II) the such shareholder's and beneficial owner's or owners' reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, meeting and (3III) any material interest in such business of such shareholder and any such beneficial owner and or owners.
(4iii) a description Notwithstanding anything in the second sentence of all agreementsparagraph (a)(ii) of this Section 14 to the contrary, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal event that the number of such business by such shareholder. In directors to be elected to the case Board of any proposed nomination for election or re-election as a director, Directors of the Corporation may require any proposed nominee to furnish such other information as may reasonably be required is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board of Directors made by the Corporation at least 45 days prior to determine the eligibility of Anniversary Date, a shareholder's notice required by this Section 14 shall also be considered timely, but only with respect to nominees for any new positions created by such proposed nominee to serve as an independent director increase, if it shall be received by the Secretary at the principal offices of the Corporation or that could be material to a reasonable shareholder’s understanding not later than the close of business on the independence, or lack thereof, of 10th day following the day on which such nomineepublic announcement is first made by the Corporation.
Appears in 1 contract
Annual Meetings. (a) An annual meeting of stockholders shall be held for the election of directors and the transaction of such other business as may properly be brought before the meeting in accordance with these Bylaws at such date, time and place, if any, as may be fixed by resolution of the Board of Directors of the Corporation from time to time.
(b) Only such business (other than stockholder nominations of directors, which shall be made in compliance with, and shall be exclusively governed by, Section 3.1(a)) shall be conducted at an annual meeting of stockholders as shall have been properly brought before the meeting. For business to be properly brought before the meeting, it must be (i) Subject to Article IX of these By-Laws, nominations of persons for election to authorized by the Board of Directors and specified in the proposal notice, or a supplemental notice, of other business to be considered by the shareholders may be made at an Annual Meeting (A) pursuant to the Corporation’s notice of meeting, (Bii) otherwise brought before the meeting by or at the direction of the Board of Directors, or (Ciii) otherwise properly brought before the meeting by any shareholder a stockholder of the Corporation who (1) is was a shareholder stockholder of record both at the time of giving of notice by the stockholder as provided for in this Section 5(a2.1(b) and until and at the time of the Annual Meetingannual meeting of stockholders, (2) who is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation on any such business and (3) complies who has complied with the notice procedures and other requirements set forth in this Section 5(a) as to such nomination or other business or these Bylaws; clause (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (Diii) shall be the exclusive means for a shareholder stockholder to make nominations or submit other such business (other than matters proposals properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and included in the Corporation’s notice of the meeting, which proposals are not governed by these Bylaws) before an Annual Meetingannual meeting of stockholders.
(iic) For nominations or any other business to be properly brought before an Annual Meeting annual meeting by a shareholder stockholder pursuant to the foregoing Section 5(a)(i)(C2.1(b)(iii), the shareholder stockholder must have given timely written notice thereof in writing to the Secretary of the Corporation as hereinafter provided and such other business proposal must otherwise be a proper matter subject for shareholder actionaction by the Corporation’s stockholders. To be timely, a shareholderstockholder’s written notice shall set forth all information required under this Section 2.1(c) and shall be delivered or mailed to and received by the Secretary at the principal executive offices of the Corporation not less than forty-five 90 days nor more than seventy 120 days prior to the first annual anniversary of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to mailed its shareholders definitive proxy materials or a notice of availability of proxy materials (whichever is earlier) for the immediately preceding Annual Meeting (the “Anniversary Date”)year’s annual meeting; provided, however, that if in the date for which event that no annual meeting was held in the Annual Meeting previous year or the annual meeting is called for a date that is more than thirty not within 30 days before or more than thirty days after from the first annual anniversary of the immediately preceding Annual Meetingyear’s annual meeting date, then written notice by the shareholder a stockholder in order to be timely must be received by the Secretary not earlier than the close of business on the 100th 120th day prior to before the date of such Annual Meeting annual meeting and not later than the later of (A) the 75th 90th day prior to before the date of such Annual Meeting annual meeting, as originally convened, or (B) the 10th close of business on the tenth day following the day on which the first public announcement disclosure of the date of such Annual Meeting is first annual meeting was made. In no event shall any the public disclosure of an adjournment or postponement of an Annual Meeting or the announcement thereof annual meeting commence a new time period for the giving of a shareholder stockholder’s notice as described above. Such shareholderA stockholder’s notice (whether given to the Secretary delivered pursuant to this Section 5(a)(ii2.1(c) shall set forth:
(i) as to each matter the stockholder proposes to bring before the meeting, (A) a description of the proposal or Section 5(bbusiness (including the complete text of any resolutions to be presented at the annual meeting, and, in the event that such business includes a proposal to amend these Bylaws, the text of the proposed amendment) desired to be brought before the annual meeting, (B) the reasons for conducting such business at the annual meeting, and (C) any material interest in such business of such stockholder or any Stockholder Associated Person (as defined below), individually or in the aggregate, including any anticipated benefit to the stockholder or the Stockholder Associated Person therefrom;
(ii) to the Secretary shall be signed extent known by the shareholder of record who intends to make stockholder giving the nomination or introduce the other business and by the beneficial owner or ownersnotice, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (I) the name and address of such shareholder (as they appear any other stockholder supporting the proposal of business on the Corporationdate of such stockholder’s booksnotice;
(iii) as to the stockholder giving the notice and any such beneficial owner; Stockholder Associated Person:
(IIA) the Share Information class or series and number of shares of capital stock or other securities of the Corporation (collectively, “Company Securities”), if any, which Share Information required by this clause (II) shall be supplemented are owned beneficially or of record by such shareholder person, the date(s) on which such Company Securities were acquired and the investment intent of such acquisition(s), and any short interest (including any opportunity to profit or share in any benefit from any decrease in the price of such beneficial owner stock or other security) in any Company Securities of any such person,
(B) the nominee holder for, and number of, any Company Securities owned beneficially but not later than ten days after of record by such person,
(C) whether and the Meeting Record Date extent to disclose which such Share Information as person, directly or indirectly (through brokers, nominees or otherwise), is subject to or during the last six months has engaged in any hedging, derivative or other transaction or series of transactions or entered into any other agreement, arrangement or understanding (including any short interest, any borrowing or lending of securities or any proxy or voting agreement), the Meeting Record Date)effect or intent of which is to (x) manage risk or benefit of changes in the price of Company Securities for such person, or (y) increase or decrease the voting power of such person in the Corporation disproportionately to such person’s economic interest in the Company Securities; and
(IIID) a representation that such shareholder is a holder of record of shares of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination stockholder or other business and Stockholder Associated Person intends to appear in person or by proxy at the annual meeting to make bring such nomination business before the meeting;
(iv) as to the stockholder giving the notice or introduce such other business; any Stockholder Associated Person with an interest or ownership referred to in clause (IVi) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations clause (iii)(C) of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to this Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; 2.1(c):
(V) in the case of any proposed nomination for election or re-election as a director, (1A) the name and residence address of such stockholder, as they appear on the person Corporation’s stock ledger, and the current name and business address, if different, of each such Stockholder Associated Person, and
(B) the investment strategy or persons objective, if any, of such stockholder and each such Stockholder Associated Person who is not an individual and a copy of the prospectus, offering memorandum or similar document, if any, provided to be nominatedinvestors or potential investors in such stockholder and each such Stockholder Associated Person;
(v) as to the stockholder giving the notice and any Stockholder Associated Person, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee person and any other Person person or Persons persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Personsnames) in connection with the proposal of such business by such shareholder. In stockholder and any material interest of such stockholder or such beneficial owner in such business, including any anticipated benefit to the case of stockholder or such beneficial owner therefrom; and
(vi) as to the stockholder giving the notice and any proposed nomination for election Stockholder Associated Person, a representation that such person intends to appear in person or re-election as a directorby proxy at the annual meeting to bring such business before the meeting (the information described in clauses (iii) through (vi), the Corporation may require any proposed nominee to furnish such other information as may reasonably be “Proposing Stockholder Information”).
(d) Unless otherwise required by law, if a stockholder (or qualified representative) does not appear at the Corporation meeting of stockholders to determine the eligibility present business proposed by such stockholder pursuant to this Section 2.1(c), such proposed business shall not be transacted, even though proxies in respect of such proposed nominee to serve as an independent director vote may have been received by the Corporation. No business shall be conducted at any annual meeting except in accordance with the procedures set forth in this paragraph (c). The chairman of the Corporation or meeting at which any business is proposed by a stockholder shall, if the facts warrant, determine and declare to the meeting that could such business was not properly brought before the meeting in accordance with the provisions of this Section 2.1(c), and in such event, the business not properly before the meeting shall not be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nomineetransacted.
Appears in 1 contract
Annual Meetings. (ia) Subject The annual meeting of the stockholders of the Corporation, for the purpose of election of directors and for such other business as may properly come before it, shall be held on such date and at such time as may be designated from time to Article IX of these By-Laws, nominations of persons for election to time by the Board of Directors and Directors. Except for nominations that are included in the proposal of Corporation’s annual meeting proxy statement to be properly brought before an annual meeting, nominations or such other business to be considered by the shareholders may be made at an Annual Meeting must be: (Ai) pursuant to the Corporationcorporation’s notice of meeting, meeting of stockholders (Bwith respect to business other than nominations); (ii) brought specifically by or at the direction of the Board of Directors, ; or (Ciii) by any shareholder stockholder of the Corporation corporation who (1) is was a shareholder stockholder of record at the time of giving of the stockholder’s notice provided for in this Section 5(a5(b) and until and at of these Bylaws (the time of the Annual Meeting“Bylaws”), (2) who is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) complies who complied with the notice procedures set forth in this Section 5(a5. For the avoidance of doubt, clause (iii) as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) above shall be the exclusive means for a shareholder stockholder to make nominations or submit other business (other than matters properly brought included in the corporation’s notice of meeting of stockholders and proxy statement under Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and included in the Corporation’s notice of meetingrules and regulations thereunder (the “1934 Act”)) before an Annual Meetingannual meeting of stockholders.
(iib) At an annual meeting of the stockholders, only such business shall be conducted as is a proper matter for stockholder action under Delaware law and as shall have been properly brought before the meeting.
(i) For nominations of any person or any other business persons for the election to the Board of Directors to be properly brought before an Annual Meeting annual meeting by a shareholder stockholder pursuant to the foregoing clause (iii) of Section 5(a)(i)(C)5(a) of these Bylaws, the shareholder stockholder must have given timely deliver written notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder action. To be timely, a shareholder’s notice shall be received by the Secretary at the principal executive offices of the Corporation not less than forty-five days nor more than seventy days prior to the first annual anniversary of the date corporation on a timely basis as set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting Section 5(b)(iii) of these Bylaws and must update and supplement such written notice on a timely basis as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”); provided, however, that if the date for which the Annual Meeting is called is more than thirty days before or more than thirty days after the first annual anniversary set forth in Section 5(c) of the immediately preceding Annual Meeting, then notice by the shareholder to be timely must be received by the Secretary not earlier than the close of business on the 100th day prior to the date of such Annual Meeting and not later than the later of (A) the 75th day prior to the date of such Annual Meeting or (B) the 10th day following the day on which public announcement of the date of such Annual Meeting is first made. In no event shall any adjournment or postponement of an Annual Meeting or the announcement thereof commence a new time period for the giving of a shareholder notice as described abovethese Bylaws. Such shareholderstockholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (IA) as to each nominee such stockholder proposes to nominate at the meeting: (1) the name name, age, business address and residence address of such shareholder (as they appear on the Corporation’s books) and any such beneficial ownernominee; (II2) the Share Information (which Share Information required by this clause (II) shall be supplemented by principal occupation or employment of such shareholder and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date)nominee; (III3) a representation that such shareholder is a holder of record the class and number of shares of each class of capital stock of the Corporation entitled to vote under corporation which are owned of record and beneficially by such nominee; (4) the Articles date or dates on which such shares were acquired and the investment intent of Incorporation at such meeting acquisition; (5) with respect to such nomination each nominee for election or other business re-election to the Board of Directors, include a completed and intends to appear in person or signed questionnaire, representation and agreement required by proxy at the meeting to make such nomination or introduce Section 5(e) of these Bylaws; and (6) such other business; (IV) any other information relating to concerning such shareholder and any such beneficial owner that nominee as would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of soliciting proxies for, as applicable, the proposal and/or for the election of directors such nominee as a director in a contested an election contest (even if an election contest is not involved), or that is otherwise required to be disclosed pursuant to Section 14 of the Exchange 1934 Act and the rules and regulations promulgated thereunder; thereunder (V) in the case of any proposed nomination for election or re-election including such person’s written consent to being named as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected serving as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed); and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2B) the reasons information required by Section 5(b)(iv) of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal of such business by such shareholderthese Bylaws. In the case of any proposed nomination for election or re-election as a director, the Corporation The corporation may require any proposed nominee to furnish such other information as it may reasonably be required by the Corporation require to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation corporation or that could be material to a reasonable shareholderstockholder’s understanding of the independence, or lack thereof, of such proposed nominee.
(ii) For the proposals sought to be included in the corporation’s proxy materials pursuant to Rule 14a-8 under the 1934 Act, for business other than nominations for the election to the Board of Directors to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of Section 5(a) of these Bylaws, the stockholder must deliver written notice to the Secretary at the principal executive offices of the corporation on a timely basis as set forth in Section 5(b)(iii) of these Bylaws, and must update and supplement such written notice on a timely basis as set forth in Section 5(c) of these Bylaws. Such stockholder’s notice shall set forth: (A) as to each matter such stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting, and any material interest (including any anticipated benefit of such business to any Proponent (as defined below) other than solely as a result of its ownership of the corporation’s capital stock, that is material to any Proponent individually, or to the Proponents in the aggregate) in such business of any Proponent; and (B) the information required by Section 5(b)(iv) of these Bylaws.
(iii) To be timely, the written notice required by Section 5(b)(i) of these Bylaws must be received by the Secretary at the principal executive offices of the corporation not later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that, subject to the last sentence of this Section 5(b)(iii), in the event that the date of the annual meeting is advanced more than 30 days prior to or delayed by more than 30 days after the anniversary of the preceding year’s annual meeting, notice by the stockholder to be timely must be so received not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such meeting is first made. To be timely, the written notice required by Section 5(b)(ii) of these Bylaws must be received by the Secretary at the principal executive offices of the corporation at least 120 days before the anniversary of the date that the previous year’s proxy statement was first mailed to stockholders. If the annual meeting date has been changed by more than 30 days from the date of the prior year’s meeting, the proposal must be submitted within a reasonable time before the Corporation begins to print and mail its proxy materials. In no event shall an adjournment or a postponement of an annual meeting for which notice has been given, or the public announcement thereof has been made, commence a new time period for the giving of a stockholder’s notice as described above.
(iv) The written notice required by Section 5(b)(i) or 5(b)(ii) of these Bylaws shall also set forth, as of the date of the notice and as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (each, a “Proponent” and collectively, the “Proponents”): (A) the name and address of each Proponent, as they appear on the corporation’s books; (B) the class, series and number of shares of the corporation that are owned beneficially and of record by each Proponent; (C) a description of any agreement, arrangement or understanding (whether oral or in writing) with respect to such nomination or proposal between or among any Proponent and any of its affiliates or associates, and any others (including their names) acting in concert, or otherwise under the agreement, arrangement or understanding, with any of the foregoing; (D) a representation that the Proponents are holders of record or beneficial owners, as the case may be, of shares of the corporation entitled to vote at the meeting and intend to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice (with respect to a notice under Section 5(b)(i) of these Bylaws) or to propose the business that is specified in the notice (with respect to a notice under Section 5(b)(ii) of these Bylaws); (E) a representation as to whether the Proponents intend to deliver a proxy statement and form of proxy to holders of a sufficient number of holders of the corporation’s voting shares to elect such nominee or nominees (with respect to a notice under Section 5(b)(i) of these Bylaws) or to carry such proposal (with respect to a notice under Section 5(b)(ii) of these Bylaws); (F) to the extent known by any Proponent, the name and address of any other stockholder supporting the proposal on the date of such stockholder’s notice; and (G) a description of all Derivative Transactions (as defined below) by each Proponent during the previous 12 month period, including the date of the transactions and the class, series and number of securities involved in, and the material economic terms of, such Derivative Transactions. For purposes of Sections 5 and 6 of these Bylaws, a “Derivative Transaction” means any agreement, arrangement, interest or understanding entered into by, or on behalf or for the benefit of, any Proponent or any of its affiliates or associates, whether record or beneficial: (w) the value of which is derived in whole or in part from the value of any class or series of shares or other securities of the corporation; (x) which otherwise provides any direct or indirect opportunity to gain or share in any gain derived from a change in the value of securities of the corporation; (y) the effect or intent of which is to mitigate loss, manage risk or benefit of security value or price changes; or (z) which provides the right to vote or increase or decrease the voting power of, such Proponent, or any of its affiliates or associates, with respect to any securities of the corporation, which agreement, arrangement, interest or understanding may include, without limitation, any option, warrant, debt position, note, bond, convertible security, swap, stock appreciation right, short position, profit interest, hedge, right to dividends, voting agreement, performance-related fee or arrangement to borrow or lend shares (whether or not subject to payment, settlement, exercise or conversion in any such class or series), and any proportionate interest of such Proponent in the securities of the corporation held by any general or limited partnership, or any limited liability company, of which such Proponent is, directly or indirectly, a general partner or managing member.
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Annual Meetings. (i) Subject to Article IX The annual meeting of these By-Laws, nominations of persons for election to stockholders shall be held on such date and at such time as may be fixed by the Board of Directors and stated in the proposal notice of the meeting, for the purpose of electing directors and for the transaction of only such other business to be considered by as is properly brought before the shareholders may be made at an Annual Meeting meeting in accordance with these Bylaws (A) pursuant to the Corporation’s “Bylaws”). Written notice of an annual meeting stating the place, date and hour of the meeting, shall be given to each stockholder entitled to vote at such meeting not less than ten (B10) nor more than sixty (60) days before the date of the annual meeting. To be properly brought before the annual meeting, business must be either (i) specified in the notice of annual meeting (or any supplement or amendment thereto) given by or at the direction of the Board of Directors, (Cii) otherwise brought before the annual meeting by any shareholder or at the direction of the Corporation who (1) is a shareholder Board of record at the time of giving of notice provided for in this Section 5(a) and until and at the time of the Annual MeetingDirectors, (2) is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) complies with the notice procedures set forth in this Section 5(a) as to such nomination or other business or (Diii) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) shall be the exclusive means for a shareholder to make nominations or submit other business (other than matters otherwise properly brought under Rule 14a-8 under before the Exchange Act and included in the Corporation’s notice of meeting) before an Annual Meeting.
(ii) For nominations or annual meeting by a stockholder. In addition to any other applicable requirements, for business to be properly brought before an Annual Meeting annual meeting by a shareholder pursuant to the foregoing Section 5(a)(i)(C)stockholder, the shareholder stockholder must have given timely notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder actionof the Corporation. To be timely, a shareholderstockholder’s notice shall must be delivered to or mailed and received by the Secretary at the principal executive offices of the Corporation not less than forty-five sixty (60) days nor more than seventy ninety (90) days prior to the first annual anniversary of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”)meeting; provided, however, that if in the event that less than seventy (70) days’ notice or prior public disclosure of the date for which the Annual Meeting is called is more than thirty days before or more than thirty days after the first annual anniversary of the immediately preceding Annual Meetingannual meeting is given or made to stockholders, then notice by the shareholder a stockholder, to be timely timely, must be received by the Secretary not earlier no later than the close of business on the 100th day prior to the date of such Annual Meeting and not later than the later of tenth (A10th) the 75th day prior to the date of such Annual Meeting or (B) the 10th day following the day on which public announcement such notice of the date of the annual meeting was mailed or such Annual Meeting is public disclosure was made, whichever first madeoccurs. In no event shall any adjournment or postponement of an Annual Meeting or the announcement thereof commence a new time period for the giving of a shareholder notice as described above. Such shareholderA stockholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: forth (Ia) the name and address of such shareholder (as they appear on the Corporation’s books) and any such beneficial owner; (II) the Share Information (which Share Information required by this clause (II) shall be supplemented by such shareholder and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (III) a representation that such shareholder is a holder of record of shares of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) in the case of any proposed nomination for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of each matter the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose stockholder proposes to bring before the meeting, annual meeting (1i) a brief description of the business desired to be brought before the annual meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2) and the reasons of such shareholder and any such beneficial owner for conducting such business at the annual meeting, and (3ii) any material interest of the stockholder in such business, and (b) as to the stockholder giving the notice (i) the name and record address of the stockholder and (ii) the class, series and number of shares of capital stock of the Corporation which are beneficially owned by the stockholder. Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Article II, Section 2. The officer of the Corporation presiding at an annual meeting shall, if the facts warrant, determine and declare to the annual meeting that business was not properly brought before the annual meeting in accordance with the provisions of this Article II, Section 2, and if such shareholder officer should so determine, such officer shall so declare to the annual meeting and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with business not properly brought before the proposal of such business by such shareholder. In the case of any proposed nomination for election or re-election as a director, the Corporation may require any proposed nominee to furnish such other information as may reasonably meeting shall not be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nomineetransacted.
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Annual Meetings. (i) Subject to Article IX of these By-Laws, nominations Nominations of persons for election to the Board board of Directors directors and the proposal of other business to be considered by the shareholders stockholders at an annual meeting of stockholders may be made at an Annual Meeting only (A) pursuant to the Corporation’s notice of meetingmeeting (or any supplement thereto), (B) by or at the direction of the Board board of Directors, directors or any committee thereof or (C) by any shareholder stockholder of the Corporation who (1i) is a shareholder stockholder of record at the time of giving of notice provided for in this Section 5(a) and until 2.7 and at the time of the Annual Meetingannual meeting, (2ii) is entitled to vote with respect to such nomination or other business at the relevant annual meeting under the Articles of Incorporation and (3iii) complies with the notice procedures set forth in this Section 5(a) 2.7 and applicable law as to such nomination or other business or (D) with respect to nominations by any shareholder nomination. For the avoidance of doubt, the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses foregoing clause (C) and (D) shall be the exclusive means for a shareholder stockholder to make director nominations or submit and shall be the exclusive means for a stockholder to propose any other business (other than matters properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and included in not excluded from the Corporation’s notice of meeting) proxy materials), before an Annual Meetingannual meeting of the stockholders.
(ii) For any nominations or any other business to be properly brought before an Annual Meeting annual meeting by a shareholder stockholder pursuant to the foregoing Section 5(a)(i)(C)2.7(a)(i)(C) of these by-laws, the shareholder stockholder must have given timely notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder action. stockholder action under the DGCL, and (2) the stockholder must have complied in all respects with the requirements of Regulation 14A under the Exchange Act, including, without limitation, the requirements of Rule 14a-19 (as such rule and regulations may be amended from time to time by the Securities and Exchange Commission (“SEC”) including any SEC Staff interpretations relating thereto), and (3) the Board of Directors or an executive officer designated thereby shall determine that the stockholder has satisfied the requirements of this clause (ii), including without limitation the satisfaction of any undertaking delivered under paragraph (E) below.. To be timely, a shareholderstockholder’s notice shall be received by delivered to the Secretary at the principal executive offices of the Corporation not less than forty-five days nor more than seventy days prior to the first annual anniversary of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”); provided, however, that if the date for which the Annual Meeting is called is more than thirty days before or more than thirty days after the first annual anniversary of the immediately preceding Annual Meeting, then notice by the shareholder to be timely must be received by the Secretary not earlier than the close of business on the 100th 120th day and not later than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced more than 30 days before or delayed more than 60 days after such anniversary date, or if no annual meeting was held in the preceding year, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the 120th day prior to the date of such Annual Meeting annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or, if the first public announcement (Aas defined below) of the 75th day date of such annual meeting is less than 100 days prior to the date of such Annual Meeting annual meeting, notice by the stockholder to be timely must be so delivered on or (B) before the 10th day following the day on which public announcement of the date of such Annual Meeting meeting is first mademade by the Corporation. For the avoidance of doubt, a stockholder shall not be entitled to make additional or substitute nominations following the expiration of the time periods set forth in this Section 2.7(a)(ii) and in these Bylaws. In no event shall any an adjournment or recess of an annual meeting, or a postponement of an Annual Meeting annual meeting for which notice of the meeting has already been given to stockholders or a public announcement of the announcement thereof meeting date has already been made, commence a new time period (or extend any time period) for the giving of a shareholder stockholder’s notice as described above. Such shareholderThe number of nominees a stockholder may nominate for election at the annual meeting (or in the case of a stockholder giving the notice on behalf of a beneficial owner, the number of nominees a stockholder may nominate for election at the annual meeting on behalf of the beneficial owner) shall not exceed the number of directors to be elected at such annual meeting. To be in proper form, a stockholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall must:
(A) set forth: , as to each Proposing Person (Ias defined below), (i) the name and address of such shareholder Proposing Person (as they including, if applicable, the name and address that appear on the Corporation’s booksbooks and records), (ii) and any such beneficial owner; (IIa) the Share Information (which Share Information required by this clause (II) shall be supplemented class or series, if any, and number of shares of the Corporation that are beneficially owned, directly or indirectly, by such shareholder and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information Proposing Person as of the Meeting Record Datedate of the stockholder notice, (b) any option, warrant, convertible security, stock appreciation right, swap or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Corporation or with a value derived in whole or in part from the value of any class or series of shares of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of stock of the Corporation or otherwise (a “Derivative Instrument”) beneficially owned, directly or indirectly, by such Proposing Person and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of any shares of any security of the Corporation, (c) a description of any proxy, contract, arrangement, understanding or relationship pursuant to which such Proposing Person has a right to vote any shares of any security of the Corporation, (d) any short interest in any security of the Corporation (for purposes of these by-laws, a person or Proposing Person shall be deemed to have a “short interest” in a security if such person or Proposing Person, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security); , (IIIe) any rights to dividends on any shares of any security of the Corporation beneficially owned by such Proposing Person that are separated or separable from the underlying shares of the Corporation, (f) any proportionate interest in any shares of any security of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such Proposing Person is a general partner or beneficially owns, directly or indirectly, an interest in a general partner and (g) any performance-related fees (other than an asset-based fee) to which such Proposing Person is entitled based on any increase or decrease in the value of any shares of any security of the Corporation or Derivative Instruments, if any, including without limitation any such interests held by members of such Proposing Person’s immediate family sharing the same household, (iii) any other information relating to such Proposing Person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies or consents for, as applicable, the proposal or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, (iv) a representation that such shareholder the Proposing Person is a holder of record of shares stock of the Corporation entitled to vote under the Articles at such meeting, will continue to be a holder of Incorporation record of stock entitled to vote at such meeting with respect to such nomination or other business through the date of the meeting and intends to appear in person or by proxy through a qualified representative at the meeting to make bring such nomination or introduce other business before the meeting, (v) a description of any material interest in such other business; business of the Proposing Person on whose behalf the proposal is made, (IVvi) a summary of any material discussion regarding the business proposed to be brought before the meeting between such Proposing Person, on the one hand, and any other record or beneficial holder of the shares of any class or series of the Corporation (including their names), on the other hand, (vii) a representation as to whether such Proposing Person intends or is part of a group that intends to engage in solicitation with respect to such nomination or proposal and, if so, the name of each participant in such solicitation, (viii) a reasonably detailed description of all agreements, arrangements and understandings (x) between or among such Proposing Person and any other Proposing Person(s) or (y) between or among such Proposing Person and any other person, persons or entity (including their names) in connection with such nomination and/or proposal of such business, including, without limitation, any agreements that would be required to be disclosed pursuant to Item 5 or Item 6 of Exchange Act Schedule 13D (regardless of whether the requirement to file a Schedule 13D is applicable), (ix) in the case of any nomination, a written undertaking by the Proposing Person, that such Proposing Person will deliver to beneficial owners of shares representing at least 67% of the voting power of the stock entitled to vote generally in the election of directors either (x) at least 20 calendar days before the annual meeting, a copy of its definitive proxy statement for the solicitation of proxies for its director candidates, or (y) at least 40 calendar days before the annual meeting a Notice of Internet Availability of Proxy Materials that would satisfy the requirements of Rule 14a-16(d) of the Securities Exchange Act, and (x) in the case of any nomination, the written consent of each proposed nominee to being named as a nominee in the proxy statement as a director of the Corporation. The information required under this Section 2.7(a)(ii) shall be supplemented and updated by such Proposing Person as described under Section 2.7(b)(v);
(B) if the notice relates to any business other than a nomination of a director or directors that the stockholder proposes to bring before the meeting, set forth (i) a reasonably detailed description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest of each Proposing Person in such business, and (ii) the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend these by-laws, the language of the proposed amendment);
(C) set forth, as to each person, if any, whom the Proposing Person proposes to nominate for election or reelection to the board of directors (i) all information relating to such shareholder and any such beneficial owner person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; thereunder (V) including such person’s written consent to being named in the case of any proposed nomination for election or re-election proxy statement as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected serving as a director of the Corporation, will act or vote on any issue or question, if elected) and (3ii) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three 3 years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewithProposing Person, on the one hand, and each proposed nominee, and his or her respective Affiliates affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, limitation all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Proposing Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, ;
(4D) such other information regarding with respect to each nominee proposed by such shareholder and any such beneficial owner as would be required for election or reelection to be disclosed in solicitations of proxies for contested elections the board of directors, or would include the completed and signed questionnaire required by Section 2.8(a)(i) of these by-laws and the written and signed representation and agreement required by Section 2.8(a)(ii) of these by-laws; and
(E) set forth any such additional information as may be otherwise required to be disclosed, in each case reasonably requested by the Corporation pursuant to Section 14 2.8(b).
(iii) The foregoing notice requirements of this Section 2.7 shall not apply to a non-binding (precatory) stockholder proposal that a stockholder has notified the Corporation of his, her or its intention to present at an annual meeting in compliance with and pursuant to Rule 14a-8 under the Exchange Act and the rules and regulations promulgated thereundersuch stockholder’s proposal has been included in, and (5) the written consent of each nominee to be named in not subsequently withdrawn from, a proxy statement and to serve as a director of that has been prepared by the Corporation if so elected; to solicit proxies for such annual meeting.
(VIiv) in the case For purposes of these by-laws, (a) “Control Person” shall mean, with respect to any proposed removal of a directorentity, collectively, (1) the names any direct and indirect control person of the directors to be removed such first entity, and (2) the reasons of such shareholder first entity’s and any such beneficial owner for asserting that such directors should be removedcontrol person’s respective directors, trustees, executive officers and managing members (including, with respect to an entity exempted from taxation under Section 501(1) of the Internal Revenue Code, each member of the board of trustee, board of directors, executive council or similar governing body thereof); and (VIIb) in “Proposing Person” shall mean (A) the case stockholder providing the notice of nomination or any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired proposed to be brought before the meeting of stockholders, (B) if the notice is given on behalf of a beneficial owner on whose behalf the nomination is made, the beneficial owner or beneficial owners, if different, on whose behalf such notice is made, (C) any affiliate or associate (each within the meaning of Rule 12b-2 under the Exchange Act for purposes of these by-laws) of such stockholder or beneficial owners and, if such business includes a proposal to amend these By-Lawsstockholder or beneficial owner is an entity, the language of the proposed amendment, (2) the reasons any Control Person of such shareholder entity, and (D) any other person with whom such stockholder or beneficial owner for conducting such business at the meeting, (3or any of their respective affiliates or associates) any material interest is acting in such business of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal of such business by such shareholder. In the case of any proposed nomination for election or re-election as a director, the Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nomineeconcert.
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Samples: By Laws (HF Foods Group Inc.)
Annual Meetings. (iA) Subject to Article IX Annual meetings of stockholders may be held at such place, either within or without the State of Delaware, and at such time and date as the Board of Directors shall determine. The Board of Directors may, in its sole discretion, determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication as described in Section 2.02 of these By-Laws, nominations Bylaws in accordance with Section 211(a)(2) of the Delaware General Corporation Law.
(B) Nominations of persons for election to the Board of Directors and the proposal of other business to be considered by the shareholders stockholders may be made at an Annual Meeting annual meeting of stockholders (A1) pursuant to the Corporation’s 's notice of meetingmeeting delivered pursuant to Section 2.03 of these Bylaws, (B2) by or at the direction of the Chairman of the Board of Directors, or (C3) by any shareholder stockholder of the Corporation who (1) is a shareholder of record at the time of giving of notice provided for in this Section 5(a) and until and at the time of the Annual Meeting, (2) is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) complies meeting, who complied with the notice procedures set forth in this Section 5(a) as to such nomination or other business or paragraphs (D) with respect to nominations by any shareholder of the Corporation who is eligible underB), and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) shall be of this Section 2.01 and who was a stockholder of record at the exclusive means for a shareholder time such notice is delivered to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in Secretary of the Corporation’s notice of meeting) before an Annual Meeting.
(iiC) For nominations or any other business to be properly brought before an Annual Meeting annual meeting by a shareholder stockholder pursuant to the foregoing clause (3) of paragraph (B) of this Section 5(a)(i)(C)2.01, the shareholder stockholder must have given timely notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder action. To be timely, a shareholder’s notice shall be received by of the Secretary Corporation at the principal executive offices of the Corporation not less than forty-five ninety (90) days nor more than seventy one hundred and twenty (120) days prior to the first annual anniversary of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to mailed its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”)year's annual meeting; provided, however, that if in the event that the date for which of the Annual Meeting annual meeting is called is changed by more than thirty (30) days before or more than thirty days after from the first annual anniversary date of the immediately preceding Annual Meetingprevious year's meeting, then notice by the shareholder stockholder to be timely must be received by the Secretary so delivered not earlier than one hundred and twenty (120) days prior to such annual meeting and not later than the close of business on the 100th later of the ninetieth (90th) day prior to such annual meeting or the date of such Annual Meeting and not later than the later of tenth (A10th) the 75th day prior to the date of such Annual Meeting or (B) the 10th day following the day on which public announcement of the date of such Annual Meeting meeting is first made. In no event shall any adjournment or postponement Public announcement of an Annual Meeting or the announcement thereof adjournment of an annual meeting shall not commence a new time period for the giving of a shareholder notice as described abovestockholder's notice. Such shareholder’s notice (whether given pursuant to Notwithstanding anything in this Section 5(a)(ii) or Section 5(b)2.01(C) to the Secretary shall contrary, if the number of directors to be signed elected to the Board of Directors of the Corporation at an annual meeting is increased and there is no public announcement by the shareholder Corporation naming all of record who intends the nominees for director or specifying the size of the increased board of directors at least one hundred (100) calendar days prior to make the nomination or introduce anniversary of the other business and by mailing of proxy materials for the beneficial owner or ownersprior year's annual meeting of stockholders, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (I) the name and address of such shareholder (as they appear on the Corporation’s books) and any such beneficial owner; (II) the Share Information (which Share Information then a stockholder's notice required by this clause (II) Section shall be supplemented considered timely, but only with respect to nominees for any new positions created by such shareholder and any such beneficial owner increase, if it is received by the Secretary of the Corporation not later than ten days after the Meeting Record Date close of business on the tenth (10th) calendar day following the day on which such public announcement is first made by the Corporation.
(D) Such stockholder's notice also shall set forth (1) as to disclose such Share Information as of each person whom the Meeting Record Date); (III) a representation that such shareholder is a holder of record of shares of the Corporation entitled stockholder proposes to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) in the case of any proposed nomination nominate for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information relating to such person that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections election of directors, or would be is otherwise required to be disclosedrequired, in each case pursuant to Section 14 of Regulation 14A under the Securities Exchange Act and of 1934, as amended (the rules and regulations promulgated thereunder"Exchange Act"), and (5) the including such person's written consent of each nominee to be being named in a the proxy statement as a nominee and to serve serving as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of as to any other business that such shareholder and any such beneficial owner propose the stockholder proposes to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Lawsmeeting, the language text of any resolution proposed to be adopted at the proposed amendmentmeeting, (2) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) meeting and any material interest in such business of such shareholder stockholder and any the beneficial owner, if any, on whose behalf the proposal is made; and (3) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (a) the name and address of such stockholder, as they appear on the Corporation's books, and of such beneficial owner and (4b) a description the class and number of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal of such business by such shareholder. In the case of any proposed nomination for election or re-election as a director, the Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director shares of the Corporation or that could be material to a reasonable shareholder’s understanding which are owned beneficially and of the independence, or lack thereof, of record by such nomineestockholder and such beneficial owner.
Appears in 1 contract
Annual Meetings. (ia) Subject The annual meeting of the stockholders of the corporation, for the purpose of election of directors and for such other business as may properly come before it, shall be held on such date and at such time as may be designated from time to Article IX time by the Board of these By-LawsDirectors. The corporation may postpone, nominations reschedule or cancel any annual meeting of stockholders previously scheduled by the Board of Directors. Nominations of persons for election to the Board of Directors and the proposal proposals of other business to be considered by the shareholders stockholders may be made at an Annual Meeting annual meeting of stockholders: (Ai) pursuant to the Corporationcorporation’s notice of meeting, meeting of stockholders; (Bii) by or at the direction of the Board of Directors, Directors or a duly authorized committee thereof; or (Ciii) by any shareholder stockholder of the Corporation corporation who (1) is was a shareholder stockholder of record (and, with respect to any beneficial owner, if different, on whose behalf such business is proposed or such nomination or nominations are made, only if such beneficial owner was the beneficial owner of shares of the corporation) at the time of giving of the stockholder’s notice provided for in this Section 5(a5(b) and until and at the time of the Annual Meetingbelow, (2) who is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) complies who complied with the notice procedures set forth in this Section 5(a5. For the avoidance of doubt, clause (iii) as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) above shall be the exclusive means for a shareholder stockholder to make nominations or and submit other business (other than matters properly brought included in the corporation’s notice of meeting of stockholders and proxy statement under Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and included in the Corporation’s notice of meetingrules and regulations thereunder (the “1934 Act”)) before an Annual Meetingannual meeting of stockholders.
(iib) At an annual meeting of the stockholders, only such business shall be conducted as is a proper matter for stockholder action under Delaware law, the Certificate of Incorporation and these Amended and Restated Bylaws (“Bylaws”), and only such nominations shall be made and such business shall be conducted as shall have been properly brought before the meeting in accordance with the procedures below.
(i) For nominations or any other business for the election to the Board of Directors to be properly brought before an Annual Meeting annual meeting by a shareholder stockholder pursuant to the foregoing clause (iii) of Section 5(a)(i)(C5(a), the shareholder stockholder must have given timely deliver written notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder action. To be timely, a shareholder’s notice shall be received by the Secretary at the principal executive offices of the Corporation not less than forty-five days nor more than seventy days prior to the first annual anniversary of the date corporation on a timely basis as set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting Section 5(b)(iii) and must update and supplement such written notice on a timely basis as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”set forth in Section 5(c); provided, however, that if the date for which the Annual Meeting is called is more than thirty days before or more than thirty days after the first annual anniversary of the immediately preceding Annual Meeting, then notice by the shareholder to be timely must be received by the Secretary not earlier than the close of business on the 100th day prior to the date of such Annual Meeting and not later than the later of (A) the 75th day prior to the date of such Annual Meeting or (B) the 10th day following the day on which public announcement of the date of such Annual Meeting is first made. In no event shall any adjournment or postponement of an Annual Meeting or the announcement thereof commence a new time period for the giving of a shareholder notice as described above. Such shareholderstockholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (IA) as to each nominee such stockholder proposes to nominate at the meeting: (1) the name name, age, business address and residence address of such shareholder nominee, (as they appear on the Corporation’s books) and any such beneficial owner; (II2) the Share Information principal occupation or employment of such nominee, (which Share Information required by this clause (II3) shall be supplemented by such shareholder the class or series and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (III) a representation that such shareholder is a holder of record number of shares of each class or series of capital stock of the Corporation entitled to vote under corporation that are owned of record and beneficially by such nominee, (4) the Articles date or dates on which such shares were acquired and the investment intent of Incorporation at such meeting with respect to such nomination or other business acquisition and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV5) any all other information relating to concerning such shareholder and any such beneficial owner that nominee as would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of soliciting proxies for, as applicable, the proposal and/or for the election of directors such nominee as a director in a contested an election contest (even if an election contest is not involved and whether or not proxies are being or will be solicited), or that is otherwise required to be disclosed pursuant to Section 14 of the Exchange 1934 Act and the rules and regulations promulgated thereunder; (V) including such person’s written consent to being named in the case of any proposed nomination for election or re-election corporation’s proxy statement and associated proxy card as a director, (1) the name and residence address nominee of the person or persons stockholder and to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected serving as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed); and (VIIB) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description all of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal of such business information required by such shareholderSection 5(b)(iv). In the case of any proposed nomination for election or re-election as a director, the Corporation The corporation may require any proposed nominee to furnish such other information as it may reasonably be required by the Corporation require to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation corporation (as such term is used in any applicable stock exchange listing requirements or applicable law) or on any committee or sub-committee of the Board of Directors under any applicable stock exchange listing requirements or applicable law, or that could be material to a reasonable shareholderstockholder’s understanding of the independence, or lack thereof, of such proposed nominee. The number of nominees a stockholder may nominate for election at the annual meeting (or in the case of a stockholder giving the notice on behalf of a beneficial owner, the number of nominees a stockholder may nominate for election at the annual meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected at such annual meeting.
(ii) Other than proposals sought to be included in the corporation’s proxy materials pursuant to Rule 14a-8 under the 1934 Act, for business other than nominations for the election to the Board of Directors to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of Section 5(a), the stockholder must deliver written notice to the Secretary at the principal executive offices of the corporation on a timely basis as set forth in Section 5(b)(iii), and must update and supplement such written notice on a timely basis as set forth in Section 5(c). Such stockholder’s notice shall set forth: (A) as to each matter such stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend these Bylaws, the language of the proposed amendment), the reasons for conducting such business at the meeting, and any material interest (including any anticipated benefit of such business to any Proponent (as defined below) other than solely as a result of its ownership of the corporation’s capital stock, that is material to any Proponent individually, or to the Proponents in the aggregate) in such business of any Proponent; and (B) the information required by Section 5(b)(iv).
(iii) To be timely, the written notice required by Section 5(b)(i) or 5(b)(ii) must be received by the Secretary at the principal executive offices of the corporation not later than the close of business on the 90th day, nor earlier than the close of business on the 120th day, prior to the first anniversary of the immediately preceding year’s annual meeting; provided, however, that, subject to the last sentence of this Section 5(b)(iii), in the event that (A) the date of the annual meeting is advanced more than 30 days prior to or delayed by more than 30 days after the anniversary of the preceding year’s annual meeting, notice by the stockholder to be timely must be so received not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or, if later than the 90th day prior to such annual meeting, the 10th day following the day on which public announcement of the date of such meeting is first made by the corporation or (B) the corporation did not have an annual meeting in the preceding year, notice by the stockholder to be timely must be so received not later than the 10th day following the day on which public announcement of the date of such meeting is first made. In no event shall an adjournment or postponement of an annual meeting for which notice has been given, or the public announcement thereof has been made, commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
(iv) The written notice required by Sections 5(b)(i) or 5(b)(ii) shall also set forth, as of the date of the notice and as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (each, a “Proponent” and collectively, the “Proponents”): (A) the name and address of each Proponent, including, if applicable, such name and address as they appear on the corporation’s books and records; (B) the class, series and number of shares of each class or series of the capital stock of the corporation that are, directly or indirectly, owned of record or beneficially (within the meaning of Rule 13d-3 under the 1934 Act) by each Proponent (provided, that for purposes of this Section 5(b)(iv), such Proponent shall in all events be deemed to beneficially own all shares of any class or series of capital stock of the corporation as to which such Proponent has a right to acquire beneficial ownership at any time in the future); (C) a description of any agreement, arrangement or understanding (whether oral or in writing) with respect to such nomination or proposal (and/or the voting of shares of any class or series of capital stock of the corporation) between or among any Proponent and any of its affiliates or associates, and any others (including their names) acting in concert, or otherwise under the agreement, arrangement or understanding, with any of the foregoing; (D) a representation that the Proponents are holders of record or beneficial owners, as the case may be, of shares of the corporation at the time of giving notice, will be entitled to vote at the meeting, and intend to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice (with respect to a notice under Section 5(b)(i)) or to propose the business that is specified in the notice (with respect to a notice under Section 5(b)(ii)); (E) a representation as to whether the Proponents intend to deliver a proxy statement and form of proxy to holders of a sufficient number of the corporation’s voting shares to elect such nominee or nominees (with respect to a notice under Section 5(b)(i)) or to carry such proposal (with respect to a notice under Section 5(b)(ii)); (F) to the extent known by any Proponent, the name and address of any other stockholder supporting the proposal on the date of such stockholder’s notice; and (G) a description of all Derivative Transactions (as defined below) by each Proponent during the previous 12-month period, including the date of the transactions and the class, series and number of securities involved in, and the material economic terms of, such Derivative Transactions.
(c) A stockholder providing the written notice required by Section 5(b)(i) or (ii) shall update and supplement such notice in writing, if necessary, so that the information provided or required to be provided in such notice is true and correct in all material respects as of (i) the record date for the determination of stockholders entitled to notice of the meeting and (ii) the date that is five Business Days (as defined below) prior to the meeting and, in the event of any adjournment or postponement thereof, five Business Days prior to such adjourned or postponed meeting. In the case of an update and supplement pursuant to clause (i) of this Section 5(c), such update and supplement shall be received by the Secretary at the principal executive offices of the corporation not later than five Business Days after the later of the record date for the determination of stockholders entitled to notice of the meeting or the public announcement of such record date. In the case of an update and supplement pursuant to clause (ii) of this Section 5(c), such update and supplement shall be received by the Secretary at the principal executive offices of the corporation not later than two Business Days prior to the date for the meeting, and, in the event of any adjournment or postponement thereof, two Business Days prior to such adjourned or postponed meeting.
(d) Notwithstanding anything in Section 5(b)(iii)to the contrary, in the event that the number of directors in an Expiring Class (as defined below) to be elected to the Board of Directors at the next annual meeting is increased effective after the time period for which nominations would otherwise be due under Section 5(b)(iii) and there is no public announcement by the corporation naming the nominees for the Expiring Class at least 100 days before the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Section 5 and that complies with the requirements in Section 5(b)(i), other than the timing requirements in Section 5(b)(iii), shall also be considered timely, but only with respect to nominees for the additional directorships in such Expiring Class, 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 tenth day following the day on which such public announcement is first made by the corporation. For purposes of this section, an “Expiring Class” shall mean a class of directors whose term shall expire at the next annual meeting of stockholders.
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Annual Meetings. (a) An annual meeting of stockholders shall be held for the election of directors and the transaction of such other business as may properly be brought before the meeting in accordance with these Bylaws at such date, time and place, if any, as may be fixed by resolution of the Board of Directors of the Corporation from time to time.
(b) Only such business (other than stockholder nominations of directors, which shall be made in compliance with, and shall be exclusively governed by, Section 3.1(a)) shall be conducted at an annual meeting of stockholders as shall have been properly brought before the meeting. For business to be properly brought before the meeting, it must be (i) Subject to Article IX of these By-Laws, nominations of persons for election to authorized by the Board of Directors and specified in the proposal notice, or a supplemental notice, of other business to be considered by the shareholders may be made at an Annual Meeting (A) pursuant to the Corporation’s notice of meeting, (Bii) otherwise brought before the meeting by or at the direction of the Board of Directors, or (Ciii) otherwise properly brought before the meeting by any shareholder a stockholder of the Corporation who (1) is was a shareholder stockholder of record both at the time of giving of notice by the stockholder as provided for in this Section 5(a) and until 2.1 and at the time of the Annual Meetingannual meeting of stockholders, (2) who is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation on any such business and (3) complies who has complied with the notice procedures and other requirements set forth in this Section 5(a) as to such nomination or other business or these Bylaws; clause (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (Diii) shall be the exclusive means for a shareholder stockholder to make nominations or submit other such business (other than matters proposals properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and included in the Corporation’s notice of the meeting, which proposals are not governed by these Bylaws) before an Annual Meetingannual meeting of stockholders.
(iic) For nominations or any other business to be properly brought before an Annual Meeting annual meeting by a shareholder stockholder pursuant to the foregoing Section 5(a)(i)(C2.1(b)(iii), the shareholder stockholder must have given timely written notice thereof in writing to the Secretary of the Corporation as hereinafter provided and such other business proposal must otherwise be a proper matter subject for shareholder actionaction by the Corporation’s stockholders. To be timely, a shareholderstockholder’s written notice shall set forth all information required under this Section 2.1(c) and shall be delivered or mailed to and received by the Secretary at the principal executive offices of the Corporation not less than forty-five 90 days nor more than seventy 120 days prior to the first annual anniversary of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to mailed its shareholders definitive proxy materials or a notice of availability of proxy materials (whichever is earlier) for the immediately preceding Annual Meeting (the “Anniversary Date”); year’s annual meeting; provided, however, that if in the date for which event that no annual meeting was held in the Annual Meeting previous year or the annual meeting is called for a date that is more than thirty not within 30 days before or more than thirty days after from the first annual anniversary of the immediately preceding Annual Meetingyear’s annual meeting date, then written notice by the shareholder a stockholder in order to be timely must be received by the Secretary not earlier than the close of business on the 100th 120th day prior to before the date of such Annual Meeting annual meeting and not later than the later of (A) the 75th 90th day prior to before the date of such Annual Meeting annual meeting, as originally convened, or (B) the 10th close of business on the tenth day following the day on which the first public announcement disclosure of the date of such Annual Meeting is first annual meeting was made. In no event shall any the public disclosure of an adjournment or postponement of an Annual Meeting or the announcement thereof annual meeting commence a new time period for the giving of a shareholder stockholder’s notice as described above. Such shareholderA stockholder’s notice (whether given to the Secretary delivered pursuant to this Section 5(a)(ii2.1(c) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (I) the name and address of such shareholder (as they appear on the Corporation’s books) and any such beneficial owner; (II) the Share Information (which Share Information required by this clause (II) shall be supplemented by such shareholder and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (III) a representation that such shareholder is a holder of record of shares of the Corporation entitled to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) in the case of any proposed nomination for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal of such business by such shareholder. In the case of any proposed nomination for election or re-election as a director, the Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nominee.:
Appears in 1 contract
Annual Meetings. (iA) Subject to Article IX Annual meetings of stockholders may be held at such place, either within or without the State of Delaware, and at such time and date as the Board of Directors shall determine. The Board of Directors may, in its sole discretion, determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication as described in Section 2.02 of these By-Laws, nominations Bylaws in accordance with Section 211(a)(2) of the Delaware General Corporation Law.
(B) Nominations of persons for election to the Board of Directors and the proposal of other business to be considered by the shareholders stockholders may be made at an Annual Meeting annual meeting of stockholders (A1) pursuant to the Corporation’s notice of meetingmeeting delivered pursuant to Section 2.03 of these Bylaws, (B2) by or at the direction of the Chairman of the Board of Directors, or (C3) by any shareholder stockholder of the Corporation who (1) is a shareholder of record at the time of giving of notice provided for in this Section 5(a) and until and at the time of the Annual Meeting, (2) is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) complies meeting, who complied with the notice procedures set forth in this Section 5(a) as to such nomination or other business or paragraphs (D) with respect to nominations by any shareholder of the Corporation who is eligible underB), and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) shall be of this Section 2.01 and who was a stockholder of record at the exclusive means for a shareholder time such notice is delivered to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and included in Secretary of the Corporation’s notice of meeting) before an Annual Meeting.
(iiC) For nominations or any other business to be properly brought before an Annual Meeting annual meeting by a shareholder stockholder pursuant to the foregoing clause (3) of paragraph (B) of this Section 5(a)(i)(C)2.01, the shareholder stockholder must have given timely notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder action. To be timely, a shareholder’s notice shall be received by of the Secretary Corporation at the principal executive offices of the Corporation not less than forty-five ninety (90) days nor more than seventy one hundred and twenty (120) days prior to the first annual anniversary of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to mailed its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”)year’s annual meeting; provided, however, that if in the event that the date for which of the Annual Meeting annual meeting is called is changed by more than thirty (30) days before or more than thirty days after from the first annual anniversary date of the immediately preceding Annual Meetingprevious year’s meeting, then notice by the shareholder stockholder to be timely must be received by the Secretary so delivered not earlier than one hundred and twenty (120) days prior to such annual meeting and not later than the close of business on the 100th later of the ninetieth (90th) day prior to such annual meeting or the date of such Annual Meeting and not later than the later of tenth (A10th) the 75th day prior to the date of such Annual Meeting or (B) the 10th day following the day on which public announcement of the date of such Annual Meeting meeting is first made. In no event shall any adjournment or postponement Public announcement of an Annual Meeting or the announcement thereof adjournment of an annual meeting shall not commence a new time period for the giving of a shareholder notice as described abovestockholder’s notice. Such shareholder’s notice (whether given pursuant to Notwithstanding anything in this Section 5(a)(ii) or Section 5(b)2.01(C) to the Secretary shall contrary, if the number of directors to be signed elected to the Board of Directors of the Corporation at an annual meeting is increased and there is no public announcement by the shareholder Corporation naming all of record who intends the nominees for director or specifying the size of the increased board of directors at least one hundred (100) calendar days prior to make the nomination or introduce anniversary of the other business and by mailing of proxy materials for the beneficial owner or ownersprior year’s annual meeting of stockholders, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (I) the name and address of such shareholder (as they appear on the Corporationthen a stockholder’s books) and any such beneficial owner; (II) the Share Information (which Share Information notice required by this clause (II) Section shall be supplemented considered timely, but only with respect to nominees for any new positions created by such shareholder and any such beneficial owner increase, if it is received by the Secretary of the Corporation not later than ten days after the Meeting Record Date close of business on the tenth (10th) calendar day following the day on which such public announcement is first made by the Corporation.
(D) Such stockholder’s notice also shall set forth (1) as to disclose such Share Information as of each person whom the Meeting Record Date); (III) a representation that such shareholder is a holder of record of shares of the Corporation entitled stockholder proposes to vote under the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make such nomination or introduce such other business; (IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) in the case of any proposed nomination nominate for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information relating to such person that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections election of directors, or would be is otherwise required to be disclosedrequired, in each case pursuant to Section 14 of Regulation 14A under the Securities Exchange Act and of 1934, as amended (the rules and regulations promulgated thereunder“Exchange Act”), and (5) the including such person’s written consent of each nominee to be being named in a the proxy statement as a nominee and to serve serving as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of as to any other business that such shareholder and any such beneficial owner propose the stockholder proposes to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Lawsmeeting, the language text of any resolution proposed to be adopted at the proposed amendmentmeeting, (2) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) meeting and any material interest in such business of such shareholder stockholder and any the beneficial owner, if any, on whose behalf the proposal is made; and (3) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (a) the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner and (4b) the class and number of shares of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner.
(1) Only such persons who are nominated in accordance with the procedures set forth in this Section 2.01 shall be eligible for election to serve as directors and only such business shall be conducted at a description meeting of all agreementsstockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section. Except as otherwise provided by law, arrangements the Certificate of Incorporation or understandings between these Bylaws, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in these Bylaws and, if any proposed nomination or business is not in compliance with these Bylaws, to declare that such shareholder defective proposal or nomination shall be disregarded. The chairman of the meeting of stockholders shall, if the facts warrant, determine and declare to the meeting that any nomination or business was not properly brought before the meeting and in accordance with the provisions of these Bylaws, and if he or she should so determine, the chairman shall so declare to the meeting, and any such beneficial owner and any other Person nomination or Persons business not properly brought before the meeting shall not be transacted.
(naming such Person or Persons2) Whenever used in these Bylaws, “public announcement” shall mean disclosure (a) in connection with a press release released by the proposal of Corporation, provided such business by such shareholder. In the case of any proposed nomination for election or re-election as a director, the Corporation may require any proposed nominee to furnish such other information as may reasonably be required press release is released by the Corporation following its customary procedures, is reported by the Dow Xxxxx News Service, Associated Press or comparable national news service, or is generally available on internet news sites, or (b) in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to determine the eligibility of such proposed nominee to serve as an independent director Section 13, 14 or 15(d) of the Corporation Exchange Act.
(3) Nothing in these Bylaws shall be deemed to affect any rights (a) of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act, or that could be material to a reasonable shareholder’s understanding (b) of the independence, holders of any class or lack thereof, series of such nomineestock having a preference over the Common Stock as to dividends or upon liquidation to elect directors under specified circumstances.
Appears in 1 contract
Annual Meetings. (iA) Subject to Article IX A meeting of these By-Laws, nominations of persons Stockholders for the election to the Board of Directors and the proposal of other business to shall be considered held annually at such date and time as may be designated by the shareholders may be made at Board from time to time.
(B) At an Annual Meeting annual meeting of Stockholders, only business (A) pursuant other than business relating to the Corporation’s notice nomination or election of meetingDirectors, which is governed by Section 3.4) that has been properly brought before the meeting of Stockholders in accordance with the procedures set forth in this Section 2.2 shall be conducted. To be properly brought before an annual meeting of Stockholders, such business must be brought before the meeting (Bi) by or at the direction of the Board of Directors, or any committee thereof or (Cii) by any shareholder a Stockholder who (a) was a Stockholder of record of the Corporation who (1) is a shareholder of record at when the time of giving of notice provided for in required by this Section 5(a) and until 2.2 is delivered to the Secretary and at the time of the Annual Meetingannual meeting, (2b) is entitled to vote with respect to such nomination or other business at the annual meeting under the Articles of Incorporation and (3c) complies with the notice procedures set forth in and other provisions of this Section 5(a2.2. Section 2.2(B)(ii) as to such nomination or other is the exclusive means by which a Stockholder may bring business or before an annual meeting of Stockholders, except (Dx) with respect to nominations or elections of Directors which is governed by any shareholder of Section 3.4 and (y) with respect to proposals where the Stockholder proposing such business has notified the Corporation who is eligible under, and complies of such Stockholder’s intent to present the proposals at an annual meeting in compliance with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) shall be the exclusive means for a shareholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and such proposals have been included in a proxy statement that has been prepared by the Corporation’s Corporation to solicit proxies for such annual meeting, in which case the notice requirements of meeting) before an Annual Meetingthis Section 2.2 shall be deemed satisfied with respect to such proposals.
(iiC) For nominations or At any other business to annual meeting of Stockholders, all proposals of Stockholder Business must be properly brought before an Annual Meeting made by timely written notice given by a shareholder pursuant to Stockholder of record (the foregoing Section 5(a)(i)(C), the shareholder must have given timely notice thereof in writing to the Secretary “Notice of Business”) and such other business must otherwise be a proper matter for shareholder Stockholder action. To be timely, a shareholder’s notice shall the Notice of Business must be delivered personally or mailed to, and received by at, the Secretary at the principal offices Office of the Corporation not less than forty-five days nor more than seventy days prior Corporation, addressed to the Secretary, by no earlier than 120 days and no later than 90 days before the first annual anniversary of the date set forth in of the Corporationprior year’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”)annual meeting of Stockholders; provided, however, that if (i) the date for which the Annual Meeting annual meeting of Stockholders is called is advanced by more than thirty days before 30 days, or delayed by more than thirty days after 60 days, from the first annual anniversary of the immediately preceding Annual Meetingprior year’s annual meeting of Stockholders or (ii) no annual meeting was held during the prior year, then the notice by the shareholder Stockholder to be timely must be received by the Secretary not (a) no earlier than the close of business on the 100th day prior to the date of 120 days before such Annual Meeting annual meeting and not (b) no later than the later of (A) 90 days before such annual meeting and the 75th tenth day prior to the date of such Annual Meeting or (B) the 10th day following after the day on which public announcement of the date notice of such Annual Meeting is first madeannual meeting was made by mail or Public Disclosure. In no event shall any adjournment an adjournment, postponement or postponement deferral, or Public Disclosure of an Annual Meeting adjournment, postponement or the announcement thereof deferral, of an annual meeting of Stockholders commence a new time period (or extend any time period) for the giving of a shareholder notice as described above. Such shareholder’s notice the Notice of Business.
(whether given pursuant to this Section 5(a)(iiD) or Section 5(b)) to the Secretary shall be signed by the shareholder The Notice of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall Business must set forth: :
(Ii) the name and record address of such shareholder each Stockholder proposing Stockholder Business for an annual meeting (the “Proponent”), as they appear on the Corporation’s books;
(ii) the name and address of any Stockholder Associated Person;
(iii) as to each Proponent and any such beneficial owner; Stockholder Associated Person, (IIa) the Share Information class or series and number of shares of stock of the Corporation directly or indirectly held of record and beneficially owned by the Proponent or Stockholder Associated Person, (which Share Information required by this clause b) the date such shares of stock were acquired, (IIc) shall be supplemented by a description of any agreement, arrangement or understanding, direct or indirect, with respect to such shareholder Stockholder Business between or among the Proponent, any Stockholder Associated Person or any others (including their names) acting in concert with any of the foregoing, (d) a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, hedging transactions and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information borrowed or loaned shares) that has been entered into, directly or indirectly, as of the Meeting Record Datedate of the Proponent’s notice by, or on behalf of, the Proponent or any Stockholder Associated Person, 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 the Proponent or any Stockholder Associated Person with respect to shares of stock of the Corporation (a “Derivative”); , (IIIe) a description in reasonable detail of any proxy (including revocable proxies), contract, arrangement, understanding or other relationship pursuant to which the Proponent or Stockholder Associated Person has a right to vote any shares of stock of the Corporation, (f) any rights to dividends on the stock of the Corporation owned beneficially by the Proponent or Stockholder Associated Person that are separated or separable from the underlying stock of the Corporation, (g) any proportionate interest in stock of the Corporation or Derivatives held, directly or indirectly, by a general or limited partnership in which the Proponent or Stockholder Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner, (h) any performance–related fees (other than an asset-based fee) that the Proponent or Stockholder Associated Person is entitled to, based on any increase or decrease in the value of stock of the Corporation or Derivatives thereof, if any, as of the date of such notice, and (i) with respect to any and all of the agreements, contracts, understandings, arrangements, proxies or other relationships referred to in the foregoing clauses (c) through (h), a representation that such Proponent will notify the Corporation in writing of any such agreement, contract, understanding, arrangement, proxy or other relationship that is or will be in effect as of the date of such meeting no later than five business days before the date of such meeting. The information specified in Section 2.2(D)(i) to (iii) is referred to herein as “Stockholder Information”;
(iv) a representation that such shareholder each Proponent is a holder of record of shares stock of the Corporation entitled to vote under at the Articles of Incorporation at such meeting with respect to such nomination or other business and intends to appear in person or by proxy at the meeting to make propose such nomination or introduce such other business; Stockholder Business;
(IV) any other information relating to such shareholder and any such beneficial owner that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) in the case of any proposed nomination for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1v) a brief description of the business Stockholder Business desired to be brought before the meeting annual meeting, the text of the proposal (including the text of any resolutions proposed for consideration and, if such business includes a proposal to amend these the By-Lawslaws, the language of the proposed amendment, (2) and the reasons of such shareholder and any such beneficial owner for conducting such business Stockholder Business at the meeting, ;
(3vi) any material interest of the Proponent and any Stockholder Associated Person in such business Stockholder Business;
(vii) a representation as to whether the Proponent intends (a) to deliver a proxy statement and form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt such Stockholder Business or (b) otherwise to solicit proxies or votes from Stockholders in support of such shareholder Stockholder Business; and
(viii) all other information that would be required to be filed with the Securities and Exchange Commission (“SEC”) if the Proponents or Stockholder Associated Persons were participants in a solicitation subject to Section 14 of the Exchange Act.
(E) The person presiding over the meeting shall, if the facts warrant, determine and declare to the meeting, that business was not properly brought before the meeting in accordance with the procedures set forth in this Section 2.2, and, if he or she should so determine, he or she shall so declare to the meeting and any such beneficial owner and business not properly brought before the meeting shall not be transacted.
(4F) If the Proponent (or a description qualified representative of all agreementsthe Proponent) does not appear at the annual meeting of Stockholders to present the Stockholder Business such business shall not be transacted, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) notwithstanding that proxies in connection with the proposal respect of such business vote may have been received by the Corporation. For purposes of this Section 2.2, to be considered a qualified representative of the Stockholder, a person must be a duly authorized officer, manager or partner of such Stockholder or must be authorized by a writing executed by such shareholder. In Stockholder or an electronic transmission delivered by such Stockholder to act for such Stockholder as proxy at the case annual meeting of any proposed nomination for election Stockholders and such person must produce such writing or re-election as electronic transmission, or a director, the Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director reliable reproduction of the Corporation writing or that could be material to a reasonable shareholder’s understanding electronic transmission, at the meeting of the independence, or lack thereof, of such nomineeStockholders.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Spectrum Brands, Inc.)
Annual Meetings. (ia) Subject The annual meeting of the stockholders of the corporation, for the purpose of election of directors and for such other business as may properly come before it, shall be held on such date and at such time as may be designated from time to Article IX time by the Board of these By-LawsDirectors and stated in the corporation’s notice of meeting of stockholders. For purposes of this Section 5, nominations the Company’s annual meeting of stockholders for the 2021 calendar year shall be deemed to have been held on [•], 2021. Nominations of persons for election to the Board of Directors and the proposal proposals of other business to be considered by the shareholders stockholders may be made at an Annual Meeting annual meeting of stockholders: (Ai) pursuant to the Corporationcorporation’s notice of meeting, meeting of stockholders (Bwith respect to business other than nominations); (ii) brought specifically by or at the direction of the Board of Directors, ; or (Ciii) by any shareholder stockholder of the Corporation corporation who (1) is was a shareholder stockholder of record at the time of giving of the stockholder’s notice provided for in this Section 5(a5(b) and until and at the time of the Annual Meetingbelow, (2) who is entitled to vote with respect to such nomination or other business at the meeting under the Articles of Incorporation and (3) complies who complied with the notice procedures set forth in this Section 5(a5. For the avoidance of doubt, clause (iii) as to such nomination or other business or (D) with respect to nominations by any shareholder of the Corporation who is eligible under, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses (C) and (D) above shall be the exclusive means for a shareholder stockholder to make nominations or and submit other business (other than matters properly brought included in the corporation’s notice of meeting of stockholders and proxy statement under Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and included in the Corporation’s notice of meetingrules and regulations thereunder (the “1934 Act”)) before an Annual Meetingannual meeting of stockholders.
(iib) At an annual meeting of the stockholders, only such business shall be conducted as is a proper matter for stockholder action under Delaware law and as shall have been properly brought before the meeting in accordance with Section 5(a) and the procedures below.
(i) For nominations or any other business for the election to the Board of Directors to be properly brought before an Annual Meeting annual meeting by a shareholder stockholder pursuant to the foregoing clause (iii) of Section 5(a)(i)(C5(a), the shareholder stockholder must have given timely deliver written notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for shareholder action. To be timely, a shareholder’s notice shall be received by the Secretary at the principal executive offices of the Corporation not less than forty-five days nor more than seventy days prior to the first annual anniversary of the date corporation on a timely basis as set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting Section 5(b)(iii) and must update and supplement such written notice on a timely basis as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”set forth in Section 5(c); provided, however, that if the date for which the Annual Meeting is called is more than thirty days before or more than thirty days after the first annual anniversary of the immediately preceding Annual Meeting, then notice by the shareholder to be timely must be received by the Secretary not earlier than the close of business on the 100th day prior to the date of such Annual Meeting and not later than the later of (A) the 75th day prior to the date of such Annual Meeting or (B) the 10th day following the day on which public announcement of the date of such Annual Meeting is first made. In no event shall any adjournment or postponement of an Annual Meeting or the announcement thereof commence a new time period for the giving of a shareholder notice as described above. Such shareholderstockholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth: (IA) as to each nominee such stockholder proposes to nominate at the meeting: (1) the name name, age, business address and residence address of such shareholder nominee, (as they appear on the Corporation’s books) and any such beneficial owner; (II2) the Share Information principal occupation or employment of such nominee, (which Share Information required by this clause (II3) shall be supplemented by such shareholder the class and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (III) a representation that such shareholder is a holder of record number of shares of each class of capital stock of the Corporation entitled to vote under corporation that are owned of record and beneficially by such nominee, (4) the Articles date or dates on which such shares were acquired and the investment intent of Incorporation at such meeting with respect to such nomination or other business acquisition, and intends to appear in person or by proxy at the meeting to make such nomination or introduce (5) such other business; (IV) any other information relating to concerning such shareholder and any such beneficial owner that nominee as would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of soliciting proxies for, as applicable, the proposal and/or for the election of directors such nominee as a director in a contested an election contest (even if an election contest is not involved), or that is otherwise required to be disclosed pursuant to Section 14 of the Exchange 1934 Act and the rules and regulations promulgated thereunder; thereunder (V) in the case of any proposed nomination for election or re-election including such person’s written consent to being named as a director, (1) the name and residence address of the person or persons to be nominated, (2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person as to how such nominee, if elected serving as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made, or any Affiliate or associate thereof or Person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5) the written consent of each nominee to be named in a proxy statement and to serve as a director of the Corporation if so elected; (VI) in the case of any proposed removal of a director, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed); and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2B) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business of such shareholder and any such beneficial owner and (4) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and any other Person or Persons (naming such Person or Persons) in connection with the proposal of such business information required by such shareholderSection 5(b)(iv). In the case of any proposed nomination for election or re-election as a director, the Corporation The corporation may require any proposed nominee to furnish such other information as it may reasonably be required by the Corporation require to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation corporation or that could be material to a reasonable shareholderstockholder’s understanding of the independence, or lack thereof, of such proposed nominee. The notice in this paragraph must also be accompanied by (X) a completed written questionnaire (in a form provided by the corporation) with respect to the background, qualifications, stock ownership and independence of such proposed nominee, and such additional information with respect to such proposed nominee as would be required to be provided by the corporation pursuant to Schedule 14A if such proposed nominee were a participant in the solicitation of proxies by the corporation in connection with such annual or special meeting and (Y) a written representation and agreement (in form provided by the corporation) that such nominee (i) if elected as director of the corporation, intends to serve the entire term until the next meeting at which such nominee would face re-election and (ii) consents to being named as a nominee in the corporation’s proxy statement pursuant to Rule 14a-4(d) under the 1934 Act and any associated proxy card of the corporation and agrees to serve if elected as a director.
(ii) Other than proposals sought to be included in the corporation’s proxy materials pursuant to Rule 14a-8 under the 1934 Act, for business other than nominations for the election to the Board of Directors to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of Section 5(a), the stockholder must deliver written notice to the Secretary at the principal executive offices of the corporation on a timely basis as set forth in Section 5(b)(iii), and must update and supplement such written notice on a timely basis as set forth in Section 5(c). Such stockholder’s notice shall set forth: (A) as to each matter such stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting, and any material interest (including any anticipated benefit of such business to any Proponent (as defined below) other than solely as a result of its ownership of the corporation’s capital stock, that is material to any Proponent individually, or to the Proponents in the aggregate) in such business of any Proponent; and (B) the information required by Section 5(b)(iv).
(iii) To be timely, the written notice required by Section 5(b)(i) or 5(b)(ii) must be received by the Secretary at the principal executive offices of the corporation not later than the close of business on the ninetieth (90th) day nor earlier than the close of business on the one hundred twentieth (120th) day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that, subject to the last sentence of this Section 5(b)(iii), in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the stockholder to be timely must be so received (A) not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and (B) not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or, if later than later of the ninetieth (90th) day prior to such annual meeting, the tenth (10th) day following the day on which public announcement of the date of such meeting is first made. In no event shall an adjournment or a postponement of an annual meeting for which notice has been given, or the public announcement thereof has been made, commence a new time period for the giving of a stockholder’s notice as described above.
(iv) The written notice required by Section 5(b)(i) or 5(b)(ii) shall also set forth, as of the date of the notice and as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (each, a “Proponent” and collectively, the “Proponents”): (A) the name and address of each Proponent, as they appear on the corporation’s books; (B) the class, series and number of shares of the corporation that are owned beneficially and of record by each Proponent; (C) a description of any agreement, arrangement or understanding (whether oral or in writing) with respect to such nomination or proposal between or among any Proponent and any of its affiliates or associates, and any others (including their names) acting in concert, or otherwise under the agreement, arrangement or understanding, with any of the foregoing; (D) a representation that the Proponents are holders of record or beneficial owners, as the case may be, of shares of the corporation entitled to vote at the meeting and intend to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice (with respect to a notice under Section 5(b)(i)) or to propose the business that is specified in the notice (with respect to a notice under Section 5(b)(ii)); (E) a representation as to whether the Proponents intend to deliver a proxy statement and form of proxy to holders of a sufficient number of holders of the corporation’s voting shares to elect such nominee or nominees (with respect to a notice under Section 5(b)(i)) or to carry such proposal (with respect to a notice under Section 5(b)(ii)); (F) to the extent known by any Proponent, the name and address of any other stockholder supporting the proposal on the date of such stockholder’s notice; and (G) a description of all Derivative Transactions (as defined below) by each Proponent during the previous twelve (12) month period, including the date of the transactions and the class, series and number of securities involved in, and the material economic terms of, such Derivative Transactions. For purposes of this Section 5, a “Derivative Transaction” means any agreement, arrangement, interest or understanding entered into by, or on behalf or for the benefit of, any Proponent or any of its affiliates or associates, whether record or beneficial:
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Samples: Business Combination Agreement (RedBall Acquisition Corp.)
Annual Meetings. (i) Subject to Article IX of these By-Laws, nominations i. Nominations of persons for election to the Board of Directors and the proposal of other business to be considered transacted by the shareholders stockholders may be made at an Annual Meeting annual meeting of stockholders (A) pursuant to the Corporation’s notice of meetingmeeting (or any supplement thereto), (B) by or at the direction of the Board of DirectorsBoard, (C) by any shareholder stockholder of the Corporation who (1) is was a shareholder stockholder of record at the time of the giving of the notice provided for in required by this Section 5(a) and until 5 and at the time of the Annual Meetingannual meeting of stockholders, (2) who is entitled to vote with respect to at such nomination or other business at the meeting under the Articles of Incorporation and (3) complies who has complied with the notice procedures set forth in requirements of this Section 5(a) as to such nomination or other business 5, or (D) with respect to nominations by any shareholder 1397225 Ontario Limited (“OTPP”) or MGG Investment Group LP (“MGG”) or their respective affiliates that are or become stockholders of the Corporation who is eligible underCorporation. For the avoidance of doubt, and complies with the notice procedures set forth in, Section 14 of this Article II. The preceding clauses foregoing clause (C) and (D) shall be the exclusive means for a shareholder stockholder (other than OTPP and MGG or their respective affiliates that are or become stockholders of the Corporation) to make nominations or submit other propose business (other than matters properly brought under Rule 14a-8 under the Exchange Act and business included in the Corporation’s notice proxy materials pursuant to Rule 14a-8 under the Securities Exchange Act of meeting1934, as amended (such act, and the rules and regulations promulgated thereunder, the “Exchange Act”) before if Rule 14a-8 is applicable to the Corporation) at an Annual Meetingannual meeting of stockholders.
(ii) . For nominations or any other business to be properly brought before an Annual Meeting annual meeting of stockholders by a shareholder stockholder of record pursuant to clause (C) of the foregoing Section 5(a)(i)(C)paragraph, (A) the shareholder stockholder of record must have given timely notice thereof in writing to the Secretary of the Corporation and (B) any such other business must otherwise be a proper matter for shareholder actionstockholder action under Delaware law. To be timely, a shareholderstockholder of record’s notice shall must be received by delivered in writing to the Secretary of the Corporation at the principal executive offices of the Corporation not less than forty-five days nor more than seventy days prior to the first annual anniversary of the date set forth in the Corporation’s proxy statement for the immediately preceding Annual Meeting as the date on which the Corporation first made available to its shareholders definitive proxy materials for the immediately preceding Annual Meeting (the “Anniversary Date”); provided, however, that if the date for which the Annual Meeting is called is more than thirty days before or more than thirty days after the first annual anniversary of the immediately preceding Annual Meeting, then notice by the shareholder to be timely must be received by the Secretary not earlier later than the close of business on the 100th ninetieth (90th) day, nor earlier than the one hundred twentieth (120th) day prior to the first anniversary of the previous year’s annual meeting of stockholders; provided, however, that, subject to the last following sentence, if the date of the annual meeting of stockholders is advanced by more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, or if no annual meeting was held in the preceding year, notice to be timely must be so given not earlier than the one hundred twentieth (120th) day prior to such Annual Meeting annual meeting and not later than the close of business on the later of (Ax) the 75th ninetieth (90th) day prior to the date of before such Annual Meeting or annual meeting and (By) the 10th tenth (10th) day following the day on which public announcement of the date of such Annual Meeting meeting is first mademade by the Corporation. In no event shall any adjournment an adjournment, recess or postponement of an Annual Meeting annual meeting of stockholders (or the public announcement thereof) for which notice has been given, or for which a public announcement of the date thereof has been made, commence a new time period for the giving of a shareholder notice as described abovesuch notice.
iii. Such shareholder’s notice (whether given pursuant to this Section 5(a)(ii) or Section 5(b)) to the Secretary shall be signed by the shareholder of record who intends to make the nomination or introduce the other business and by the beneficial owner or owners, if any, on whose behalf the shareholder is acting, shall bear the date of signature of such shareholder and any such beneficial owner and shall set forth:
1. As to each person whom the stockholder proposes to nominate for election or re-election as a director: (IA) the name The name, age, business address and residence address of such shareholder person, (as they appear on the Corporation’s books) and any such beneficial owner; (IIB) the Share Information principal occupation or employment of such person, (which Share Information required by this clause (IIC) shall be supplemented by such shareholder the class and any such beneficial owner not later than ten days after the Meeting Record Date to disclose such Share Information as of the Meeting Record Date); (III) a representation that such shareholder is a holder of record number of shares of the Corporation entitled that are beneficially owned by such person, (D) such person’s written consent to vote under being named in a proxy statement relating to the Articles meeting of Incorporation stockholders at such meeting which directors are to be elected and to serve if elected, (E) a completed and signed written questionnaire with respect to the background, qualifications, stock ownership and independence of such nomination person (the form of which shall be provided by the Secretary of the Corporation within five (5) business days following a written request therefor), (F) a description of all arrangements, agreements or understandings between such person and any Proponent (as defined below) or any other business and intends to appear in person or persons (including their names) in connection with the nomination by proxy at the meeting to make such nomination or introduce such other business; stockholder, and (IVG) any other information relating to such shareholder and any such beneficial owner person that would be is 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 election, or that is otherwise required, pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (V) in the case of any proposed nomination for election or re-election as a director, (1) the name and residence address of the person or persons to be nominated, (;
2) a description of all agreements, arrangements or understandings between such shareholder and any such beneficial owner and each nominee and any other Person or Persons (naming such Person or Persons) pursuant to which the nomination is to be made by such shareholder and any such beneficial owner, including without limitation any arrangement or understanding with any Person . as to how such nomineestockholder, if elected as a director of the Corporation, will act or vote on any issue or question, (3) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such shareholder and any such beneficial owner and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf such nomination or proposal is made and any affiliate (as defined in Rule 405 under the nomination is madeSecurities Act of 1933, as amended) who controls either of the foregoing stockholder or any Affiliate beneficial owner, directly or associate thereof or Person acting in concert therewith, were indirectly (each a “Proponent”): (A) the “registrant” for purposes name and address of such rule stockholder, as they appear on the Corporation’s books and records, and the nominee were a director or executive officer name and address of such registranteach other Proponent, (4) such other information regarding each nominee proposed by such shareholder and any such beneficial owner as would be required to be disclosed in solicitations of proxies for contested elections of directors, or would be otherwise required to be disclosed, in each case pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and (5B) the written consent class or series and number of each nominee to be named in a proxy statement and to serve as a director shares of the Corporation if so elected; (VI) in the case which are, directly or indirectly, owned beneficially and of any proposed removal of a directorrecord by each Proponent, (1) the names of the directors to be removed and (2) the reasons of such shareholder and any such beneficial owner for asserting that such directors should be removed; and (VII) in the case of any other business that such shareholder and any such beneficial owner propose to bring before the meeting, (1) a brief description of the business desired to be brought before the meeting and, if such business includes a proposal to amend these By-Laws, the language of the proposed amendment, (2) the reasons of such shareholder and any such beneficial owner for conducting such business at the meeting, (3) any material interest in such business of such shareholder and any such beneficial owner and (4C) a description of all agreementsarrangements, arrangements agreements or understandings between such shareholder and any such beneficial owner Proponent and any other Person person or Persons persons (naming such Person or Personsincluding their names) in connection with the nomination(s) or proposal by such stockholder, (D) a representation that such stockholder is a stockholder of record and entitled to vote at such meeting of stockholders and that such stockholder (or a qualified representative thereof) intends to appear at such meeting of stockholders to present the nomination(s) or proposal, (E) the full notional amount of any securities that, directly or indirectly, underlie any “derivative security” (as such term is defined in Rule 16a-1(c) under the Exchange Act) that constitutes a “call equivalent position” (as such term is defined in Rule 16a-1(b) under the Exchange Act) (“Synthetic Equity Position”) and that is, directly or indirectly, held or maintained by such Proponent with respect to any shares of any class or series of stock of the Corporation; provided that, for the purposes of the definition of “Synthetic Equity Position,” the term “derivative security” shall also include any security or instrument that would not otherwise constitute a “derivative security” as a result of any feature that would make any conversion, exercise or similar right or privilege of such business security or instrument becoming determinable only at some future date or upon the happening of a future occurrence, in which case the determination of the amount of securities into which such security or instrument would be convertible or exercisable shall be made assuming that such security or instrument is immediately convertible or exercisable at the time of such determination; and, provided, further, that any Proponent satisfying the requirements of Rule 13d-1(b)(1) under the Exchange Act (other than a Proponent that so satisfies Rule 13d-1(b)(1) under the Exchange Act solely by reason of Rule 13d-1(b)(1)(ii)(E)) shall not be deemed to hold or maintain the notional amount of any securities that underlie a Synthetic Equity Position held by such shareholder. In Proponent as a hedge with respect to a bona fide derivatives trade or position of such Proponent arising in the case ordinary course of such Proponent’s business as a derivatives dealer, (F) any rights to dividends on the shares of any proposed nomination for election class or re-election as a director, the Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility series of such proposed nominee to serve as an independent director stock of the Corporation owned beneficially by such Proponent that are separated or that could be material to a reasonable shareholder’s understanding separable from the underlying shares of the independenceCorporation, and (G) any material pending or threatened legal proceeding in which such Proponent is a party or material participant involving the Corporation or any of its officers or directors, or lack thereof, any affiliate of such nomineethe Corporation.
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