Nomination Notice. To nominate a Nominee for purposes of this Section 14, the Nominating Shareholder must have given timely notice thereof in writing to the Secretary. To be timely, a Nominating Shareholder’s notice shall be received by the Secretary at the principal offices of the Corporation not less than 120 days nor more than 150 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; provided, however, that if the date for which the Annual Meeting is called is more than 30 days before or more than 30 days after the first annual anniversary of the immediately preceding Annual Meeting, then notice by the Nominating Shareholder to be timely must be received by the Secretary by the later of the close of business on the date that is 180 days prior to the date of such Annual Meeting or the tenth day following the day on which public announcement of such Annual Meeting is first made. In no event shall any adjournment or postponement of any Annual Meeting or the announcement thereof commence a new time period for the giving of a Nomination Notice. To be in proper form, a Nominating Shareholder’s notice to the Secretary for purposes of this Section 14 shall include all of the following information and documents (collectively, the “Nomination Notice”): (i) A Schedule 14N (or any successor form) relating to the Nominee, completed and filed with the SEC by the Nominating Shareholder as applicable, in accordance with SEC rules; (ii) A written notice of the nomination of such Nominee that includes the following additional information, agreements, representations and warranties by the Nominating Shareholder (including each group member): (A) the information and representations that would be required to be set forth in a shareholder’s notice of a nomination for the election of directors pursuant to Section 5(a)(ii) of this Article II; (B) the details of any relationship that existed within the past three years and that would have been described pursuant to Item 6(e) of Schedule 14N (or any successor item) if it existed on the date of submission of the Schedule 14N; (C) a representation and warranty that the shares of common stock of the Corporation owned by the Nominating Shareholder were acquired in the ordinary course of business and not with the intent or objective to influence or change control of the Corporation and are not being held with the purpose or effect of changing control of the Corporation or to gain a number of seats on the Board of Directors that exceeds the maximum number of nominees that shareholders may nominate pursuant to this Section 14; (D) a representation and warranty that the Nominating Shareholder satisfies the eligibility requirements set forth in Section 14(c) and has provided evidence of ownership to the extent required by Section 14(c)(i); (E) a representation and warranty that the Nominating Shareholder will continue to satisfy the eligibility requirements described in Section 14(c) through the date of the Annual Meeting; (F) a representation and warranty that the Nominating Shareholder has not nominated and will not nominate for election to the Board of Directors at the Annual Meeting any person other than the Nominees it is nominating pursuant to this Section 14; (G) a representation and warranty as to the Nominating Shareholder’s intentions with respect to continuing to own the Minimum Number of shares of common stock of the Corporation for at least one year following the Annual Meeting; (H) a representation and warranty that the Nominating Shareholder will not engage in, and will not be a “participant” in another person’s, “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act (without reference to the exception in Rule 14a-1(l)(2)(iv)) (or any successor rules) with respect to the Annual Meeting, other than with respect to its Nominees or any nominees of the Board of Directors; (I) a representation and warranty that the Nominating Shareholder will not use any proxy card other than the Corporation’s proxy card in soliciting shareholders in connection with the election of a Nominee at the Annual Meeting; (J) a representation and warranty that the Nominee’s nomination for election to the Board of Directors or, if elected, Board membership would not violate applicable state or federal law or the rules of any stock exchange on which the Corporation’s securities are traded; (K) a representation and warranty that the Nominee (1) qualifies as independent under the rules of any stock exchange on which the Corporation’s securities are traded, (2) meets the audit committee and compensation committee independence requirements under the rules of any stock exchange on which the Corporation’s securities are traded, (3) is a “non-employee director” for the purposes of Rule 16b-3 under the Exchange Act (or any successor rule), (4) is an “outside director” for the purposes of Section 162(m) of the Internal Revenue Code (or any successor provision), (5) meets the director qualifications set forth in Section 4 of Article III, and (6) is not and has not been subject to any event specified in Rule 506(d)(1) of Regulation D (or any successor rule) under the Securities Act of 1933 or Item 401(f) of Regulation S-K (or any successor rule) under the Exchange Act, without reference to whether the event is material to an evaluation of the ability or integrity of the Nominee; (L) details of any position of the Nominee as an employee, consultant, agent or director of any Competitor of the Corporation within the three years preceding the submission of the Nomination Notice;
Appears in 2 contracts
Samples: Merger Agreement (Fiserv Inc), Merger Agreement (First Data Corp)
Nomination Notice. To nominate a Nominee for purposes of this Section 14Nominee, the Nominating Shareholder must have given timely notice thereof in writing to the Secretary. To be timelymust, a Nominating Shareholder’s notice shall be received by the Secretary at the principal offices of the Corporation not less no earlier than 150 calendar days and no later than 120 calendar days nor more than 150 days prior to before the first annual anniversary of the date set forth in that the Corporation’s Company mailed its proxy statement for the immediately preceding Annual Meeting as prior year’s annual meeting of shareholders, submit to the date on which Secretary of the Corporation first made available to its shareholders definitive proxy materials for Company at the immediately preceding Annual Meetingprincipal executive office of the Company all of the following information and documents (collectively, the “Nomination Notice”); provided, however, that if (and only if) the date for which the Annual Meeting annual meeting is called is more than not scheduled to be held within a period that commences 30 days before or more than such anniversary date and ends 30 days after the first annual anniversary of the immediately preceding Annual Meetingprior year’s meeting date (an annual meeting date outside such period being referred to herein as an “Other Meeting Date”), then notice by the Nominating Shareholder to Nomination Notice shall be timely must be received by given in the Secretary manner provided herein by the later of the close of business on the date that is 180 days prior to the date of such Annual Other Meeting 11 002600-0001-17273-Active.28037122.1 SC1:4764155.5 Date or the tenth day following the day on which public announcement of date such Annual Other Meeting Date is first made. In no event shall any adjournment publicly announced or postponement of any Annual Meeting or the announcement thereof commence a new time period for the giving of a Nomination Notice. To be in proper form, a Nominating Shareholder’s notice to the Secretary for purposes of this Section 14 shall include all of the following information and documents (collectively, the “Nomination Notice”):
disclosed: (i) A Schedule 14N (or any successor form) relating to the each Nominee, completed and filed with the SEC Securities and Exchange Commission by the Nominating Shareholder as applicable, in accordance with SEC rules;
rules promulgated under the Exchange Act; (ii) A written notice notice, in a form deemed satisfactory by the Board of Directors, of the nomination of such each Nominee that includes the following additional information, agreements, representations and warranties by the Nominating Shareholder (including including, in the case of a Nominating Shareholder comprised of a group of Eligible Holders, by each group member):
Eligible Holder in such group): (A) the information and representations that would be required with respect to be set forth in a shareholder’s notice of a the nomination for the election of directors pursuant to Section 5(a)(ii) 8 of this Article II;
; (B) the details of any relationship that existed within the past three years and that would have been described pursuant to Item 6(e) of Schedule 14N (or any successor item) if it existed on the date of submission of the Schedule 14N;
; (C) a representation and warranty that the shares of common stock Nominating Shareholder acquired the securities of the Corporation owned by the Nominating Shareholder were acquired Company in the ordinary course of business and did not with the intent or objective to influence or change control acquire, and is not holding, securities of the Corporation and are not being held with Company for the purpose or with the effect of influencing or changing control of the Corporation or to gain a number of seats on the Board of Directors that exceeds the maximum number of nominees that shareholders may nominate pursuant to this Section 14;
Company; (D) a representation and warranty that the Nominating Shareholder satisfies the eligibility requirements set forth in Section 14(c) and has provided evidence of ownership to the extent required by Section 14(c)(i);
(E) a representation and warranty that the Nominating Shareholder will continue to satisfy the eligibility requirements described in Section 14(c) through the date of the Annual Meeting;
(F) a representation and warranty that the Nominating Shareholder has not nominated and will not nominate for election to the Board of Directors at the Annual Meeting any person other than the Nominees it is nominating pursuant to this Section 14;
(G) a representation and warranty as to the Nominating Shareholder’s intentions with respect to continuing to own the Minimum Number of shares of common stock of the Corporation for at least one year following the Annual Meeting;
(H) a representation and warranty that the Nominating Shareholder will not engage in, and will not be a “participant” in another person’s, “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act (without reference to the exception in Rule 14a-1(l)(2)(iv)) (or any successor rules) with respect to the Annual Meeting, other than with respect to its Nominees or any nominees of the Board of Directors;
(I) a representation and warranty that the Nominating Shareholder will not use any proxy card other than the Corporation’s proxy card in soliciting shareholders in connection with the election of a Nominee at the Annual Meeting;
(J) a representation and warranty that the each Nominee’s nomination for election to the Board of Directors candidacy or, if elected, Board membership would not violate applicable state or federal law or the rules of any stock exchange on which the CorporationCompany’s securities are traded;
; (KE) a representation and warranty that the Nominee each Nominee: (1) does not have any direct or indirect relationship with the Company that would cause the Nominee to be considered not independent pursuant to the Company’s Director Independence Standards as most recently published on its website and otherwise qualifies as independent under the rules of any the primary stock exchange on which the CorporationCompany’s securities shares of common stock are traded, ; (2) meets the audit committee and compensation committee independence requirements under the rules of any the primary stock exchange on which the CorporationCompany’s securities shares of common stock are traded, ; (3) is a “non-employee director” for the purposes of Rule 16b-3 under the Exchange Act (or any successor rule), (4) is an “outside director” for the purposes of Section 162(m) of the Internal Revenue Code (or any successor provision), (5) meets the director qualifications set forth in Section 4 of Article III, ; and (6) is not and has not been subject to any event specified in Rule 506(d)(1) of Regulation D (or any successor rule) under the Securities Act of 1933 or Item 401(f) of Regulation S12 002600-K (or any successor rule) under the Exchange Act, without reference to whether the event is material to an evaluation of the ability or integrity of the Nominee;
(L) details of any position of the Nominee as an employee, consultant, agent or director of any Competitor of the Corporation within the three years preceding the submission of the Nomination Notice;0001-17273-Active.28037122.1 SC1:4764155.5
Appears in 1 contract
Samples: Merger Agreement (Harris Corp /De/)
Nomination Notice. To nominate a Nominee for purposes of this Section 14Nominee, the Nominating Shareholder must have given timely notice thereof in writing to the Secretary. To be timelymust, a Nominating Shareholder’s notice shall be received by the Secretary at the principal offices of the Corporation not less no earlier than 150 calendar days and no later than 120 calendar days nor more than 150 days prior to before the first annual anniversary of the date set forth in that the Corporation’s Company mailed its proxy statement for the immediately preceding Annual Meeting as prior year’s annual meeting of shareholders, submit to the date on which Secretary of the Corporation first made available to its shareholders definitive proxy materials for Company at the immediately preceding Annual Meetingprincipal executive office of the Company all of the following information and documents (collectively, the “Nomination Notice”); provided, however, that if (and only if) the date for which the Annual Meeting annual meeting is called is more than not scheduled to be held within a period that commences 30 days before or more than such anniversary date and ends 30 days after the first annual anniversary of the immediately preceding Annual Meetingprior year’s meeting date (an annual meeting date outside such period being referred to herein as an “Other Meeting Date”), then notice by the Nominating Shareholder to Nomination Notice shall be timely must be received by given in the Secretary manner provided herein by the later of the close of business on the date that is 180 days prior to the date of such Annual Other Meeting Date or the tenth day following the day on which public announcement of date such Annual Other Meeting Date is first made. In no event shall any adjournment publicly announced or postponement of any Annual Meeting or the announcement thereof commence a new time period for the giving of a Nomination Notice. To be in proper form, a Nominating Shareholder’s notice to the Secretary for purposes of this Section 14 shall include all of the following information and documents (collectively, the “Nomination Notice”):disclosed:
(i) A Schedule 14N (or any successor form) relating to the each Nominee, completed and filed with the SEC Securities and Exchange Commission by the Nominating Shareholder as applicable, in accordance with SEC rulesrules promulgated under the Exchange Act;
(ii) A written notice notice, in a form deemed satisfactory by the Board of Directors, of the nomination of such each Nominee that includes the following additional information, agreements, representations and warranties by the Nominating Shareholder (including including, in the case of a Nominating Shareholder comprised of a group of Eligible Holders, by each group memberEligible Holder in such group):
(A) the information and representations that would be required with respect to be set forth in a shareholder’s notice of a the nomination for the election of directors pursuant to Section 5(a)(ii) 8 of this Article II;
(B) the details of any relationship that existed within the past three years and that would have been described pursuant to Item 6(e) of Schedule 14N (or any successor item) if it existed on the date of submission of the Schedule 14N;
(C) a representation and warranty that the shares of common stock Nominating Shareholder acquired the securities of the Corporation owned by the Nominating Shareholder were acquired Company in the ordinary course of business and did not with the intent or objective to influence or change control acquire, and is not holding, securities of the Corporation and are not being held with Company for the purpose or with the effect of influencing or changing control of the Corporation or to gain a number of seats on the Board of Directors that exceeds the maximum number of nominees that shareholders may nominate pursuant to this Section 14Company;
(D) a representation and warranty that the Nominating Shareholder satisfies the eligibility requirements set forth in Section 14(c) and has provided evidence of ownership to the extent required by Section 14(c)(i);
(E) a representation and warranty that the Nominating Shareholder will continue to satisfy the eligibility requirements described in Section 14(c) through the date of the Annual Meeting;
(F) a representation and warranty that the Nominating Shareholder has not nominated and will not nominate for election to the Board of Directors at the Annual Meeting any person other than the Nominees it is nominating pursuant to this Section 14;
(G) a representation and warranty as to the Nominating Shareholder’s intentions with respect to continuing to own the Minimum Number of shares of common stock of the Corporation for at least one year following the Annual Meeting;
(H) a representation and warranty that the Nominating Shareholder will not engage in, and will not be a “participant” in another person’s, “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act (without reference to the exception in Rule 14a-1(l)(2)(iv)) (or any successor rules) with respect to the Annual Meeting, other than with respect to its Nominees or any nominees of the Board of Directors;
(I) a representation and warranty that the Nominating Shareholder will not use any proxy card other than the Corporation’s proxy card in soliciting shareholders in connection with the election of a Nominee at the Annual Meeting;
(J) a representation and warranty that the each Nominee’s nomination for election to the Board of Directors candidacy or, if elected, Board membership would not violate applicable state or federal law or the rules of any stock exchange on which the CorporationCompany’s securities are traded;
(KE) a representation and warranty that the Nominee each Nominee:
(1) does not have any direct or indirect relationship with the Company that would cause the Nominee to be considered not independent pursuant to the Company’s Director Independence Standards as most recently published on its website and otherwise qualifies as independent under the rules of any the primary stock exchange on which the CorporationCompany’s securities shares of common stock are traded, ;
(2) meets the audit committee and compensation committee independence requirements under the rules of any the primary stock exchange on which the CorporationCompany’s securities shares of common stock are traded, ;
(3) is a “non-employee director” for the purposes of Rule 16b-3 under the Exchange Act (or any successor rule), ; and
(4) is an “outside director” for the purposes of Section 162(m) of the Internal Revenue Code (or any successor provision), (5) meets the director qualifications set forth in Section 4 of Article III, and (6) is not and has not been subject to any event specified in Rule 506(d)(1) of Regulation D (or any successor rule) under the Securities Act of 1933 or Item 401(f) of Regulation S-K (or any successor rule) under the Exchange Act, without reference to whether the event is material to an evaluation of the ability or integrity of the such Nominee;
(LF) a representation and warranty that the Nominating Shareholder satisfies the eligibility requirements set forth in Section 11(c) hereof and has provided evidence of ownership to the extent required by Section 11(c)(i) hereof;
(G) a representation and warranty that the Nominating Shareholder intends to continue to satisfy the eligibility requirements described in Section 11(c) hereof through the date of the annual meeting;
(H) details of any position of the a Nominee as an employee, consultant, agent officer or director of any Competitor competitor (that is, any entity that produces products, provides services or engages in business activities that compete with or are alternatives to the principal products produced, services provided or business activities engaged in by the Company or its affiliates) of the Corporation Company, within the three years preceding the submission of the Nomination Notice;
(I) a representation and warranty that the Nominating Shareholder will not engage in a “solicitation” within the meaning of Rule 14a‑1(l) under the Exchange Act (without reference to the exception in Section 14a‑1(l)(2)(iv)) (or any successor rules) with respect to the annual meeting, other than with respect to a Nominee or any nominee of the Board of Directors;
(J) a representation and warranty that the Nominating Shareholder will not use any proxy card other than the Company’s proxy card in soliciting shareholders in connection with the election of a Nominee at the annual meeting;
(K) if desired, a Supporting Statement; and
(L) in the case of a Nominating Shareholder comprised of a group of Eligible Holders, the designation by all Eligible Holders in such group of one Eligible Holder in such group that is authorized to act on behalf of all Eligible Holders in such group with respect to matters relating to such Nominating Shareholders’ nomination, including withdrawal of the nomination;
(iii) An executed agreement, in a form deemed satisfactory by the Board of Directors, pursuant to which the Nominating Shareholder (and, in the case of a Nominating Shareholder comprised of a group of Eligible Holders, each Eligible Holder in such group) agrees:
(A) to comply with all applicable laws, rules and regulations in connection with the nomination, solicitation and election;
(B) to file any written solicitation with the Company’s shareholders relating to one or more of the Company’s directors or director nominees or any Nominee with the Securities and Exchange Commission, regardless of whether any such filing is required under rule or regulation or whether any exemption from filing is available for such materials under any rule or regulation;
(C) to assume all liability stemming from an action, suit or proceeding concerning any actual or alleged legal or regulatory violation arising out of any communication by the Nominating Shareholder or any of its Nominees with the Company, its shareholders or any other person in connection with the nomination or election of directors, including, without limitation, the Nomination Notice;
(D) to indemnify and hold harmless (jointly with all other Eligible Holders in a group, in the case of an Eligible Holder in such group) the Company and each of its directors, officers and employees individually against any liability, loss, damages, expenses or other costs (including attorneys’ fees) incurred in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the Company or any of its directors, officers or employees arising out of or relating to a failure or alleged failure of the Nominating Shareholder or any of its Nominees to comply with, or any breach or alleged breach of, its or their obligations, agreements or representations under this Section 11;
(E) in the event that any information included in the Nomination Notice, or any other communication by the Nominating Shareholder (including, in the case of a Nominating Shareholder comprised of a group of Eligible Holders, with respect to any Eligible Holder in such group), with the Company, its shareholders or any other person in connection with the nomination or election ceases to be true and accurate in all material respects (or omits a material fact necessary to make the statements made not misleading), or that the Nominating Shareholder (including, in the case of a Nominating Shareholder comprised of a group of Eligible Holders, any Eligible Holder in such group) has failed to continue to satisfy the eligibility requirements described in Section 11(c) hereof, to promptly (and in any event within 48 hours of discovering such misstatement, omission or failure) notify the Company and any other recipient of such communication of (1) the misstatement or omission in such previously provided information and of the information that is required to correct the misstatement or omission or (2) such failure; and
(iv) An executed agreement, in a form deemed satisfactory by the Board of Directors, from each Nominee pursuant to which such Nominee agrees:
(A) to provide to the Company such other information and certifications, including completion of the Company’s directors questionnaire, as it may reasonably request;
(B) at the reasonable request of the Governance and Corporate Responsibility Committee (or any applicable successor committee), to meet with such Committee to discuss matters relating to the nomination of such Nominee to the Board of Directors, including the information provided by such Nominee to the Company in connection with his or her nomination and such Nominee’s eligibility to serve as a member of the Board of Directors;
(C) that such Nominee has read and agrees, if elected, to serve as a member of the Board of Directors, to adhere to the Company’s Corporate Governance Guidelines, Code of Conduct, Policies and Procedures with Respect to Related Person Transactions and any other Company policies and guidelines applicable to directors; and
(D) that such Nominee is not and will not become a party to (i) any compensatory, payment or other financial agreement, arrangement or understanding with any person or entity in connection with his or her nomination, service or action as a director of the Company that has not been disclosed to the Company, (ii) any agreement, arrangement or understanding with any person or entity as to how such Nominee would vote or act on any issue or question as a director (a “Voting Commitment”) that has not been disclosed to the Company or (iii) any Voting Commitment that could limit or interfere with such Nominee’s ability to comply, if elected as a director of the Company, with his or her fiduciary duties under applicable law. The information and documents required by this Section 11(d) to be provided by the Nominating Shareholder shall be: (i) provided with respect to and executed by each group member, in the case of information applicable to group members; and (ii) provided with respect to the persons specified in Instruction 1 to Items 6(c) and (d) of Schedule 14N (or any successor item) in the case of a Nominating Shareholder or group member that is an entity. The Nomination Notice shall be deemed submitted on the date on which all the information and documents referred to in this Section 11(d) (other than such information and documents contemplated to be provided after the date the Nomination Notice is provided) have been delivered to or, if sent by mail, received by the Secretary of the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (L3 Technologies, Inc.)
