Common use of Nomination of Director Candidates Clause in Contracts

Nomination of Director Candidates. (a) Subject to the rights of holders of any class or series of Preferred Stock then outstanding, nominations for the election of Directors at an annual meeting may be made by (i) the Board of Directors or a duly authorized committee thereof or (ii) any stockholder entitled to vote in the election of Directors generally who complies with the procedures set forth in this Bylaw and who is a stockholder of record at the time notice is delivered to the Secretary of the corporation. Any stockholder entitled to vote in the election of Directors generally may nominate one or more persons for election as Directors at an annual meeting only if timely notice of such stockholder’s intent to make such nomination or nominations has been given in writing to the Secretary of the corporation. To be timely, a stockholder nomination for a director to be elected at an annual meeting shall be received at the corporation’s principal executive offices not less than 120 calendar days in advance of the first anniversary of the date that the corporation’s (or the corporation’s predecessor’s) proxy statement was released to stockholders in connection with the previous year’s annual meeting of stockholders, except that if no annual meeting was held in the previous year or the date of the annual meeting has been advanced by more than 30 calendar days from the date contemplated at the time of the previous year’s proxy statement, notice by the stockholders to be timely must be received not later than the close of business on the tenth day following the day on which public announcement of the date of such meeting is first made. Each such notice shall set forth: (i) the name and address of the stockholder who intends to make the nomination, of the beneficial owner, if any, on whose behalf the nomination is being made and of the person or persons to be nominated; (ii) a representation that the stockholder is a holder of record of stock of the corporation entitled to vote for the election of Directors on the date of such notice and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (iii) a description of all arrangements or understandings between the stockholder or such beneficial owner and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder; (iv) such other information regarding each nominee proposed by such stockholder as would be required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission, had the nominee been nominated, or intended to be nominated, by the Board of Directors; (v) the consent of each nominee to serve as a director of the corporation if so elected; (vi) the class and number of shares of the corporation that are owned beneficially and of record by such stockholder and such beneficial owner; and (vii) whether either such stockholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of at least the percentage of the corporation’s voting shares required under applicable law to carry the proposal. In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. Notwithstanding the third sentence of this Section 2.15(a), in the event that the number of Directors to be elected at an annual meeting is increased and there is no public announcement by the corporation naming the nominees for the additional directorships at least 130 days prior to the first anniversary of the date that the corporation’s (or its predecessor’s) proxy statement was released to stockholders in connection with the previous year’s annual meeting, a stockholder’s notice required by this Section 2.15(a) shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered to the Secretary at the principal executive offices of the corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the corporation.

Nomination of Director Candidates. (a) Subject to the rights of holders of any class or series of Preferred Stock then outstanding, nominations for the election of Directors at an annual meeting may be made by (i) the Board of Directors or a duly authorized proxy committee thereof appointed by the Board of Directors or (ii) by any stockholder entitled to vote in the election of Directors generally who complies with the procedures set forth in this Bylaw and who is a stockholder of record at the time notice is delivered to the Secretary of the corporationgenerally. Any However, any stockholder entitled to vote in the election of Directors generally may nominate one or more persons for election as Directors at an annual a meeting only if timely notice of such stockholder’s 's intent to make such nomination or nominations has been given in writing to the Secretary of the corporationCorporation. To be timely, a stockholder nomination for a director to be elected at an annual meeting shall be received at the corporation’s Corporation's principal executive execute offices not less than 120 calendar days in advance of the first anniversary of the date that the corporation’s (or the corporation’s predecessor’s) Corporation's proxy statement was released to stockholders in connection with the previous year’s 's annual meeting of stockholders, except that if no annual meeting was held in the previous year or the date of the annual meeting has been advanced by more than 30 calendar days from the date contemplated at the time of the previous year’s 's proxy statement, notice by the stockholders to be timely must be received not later than the close of business on the tenth day following the day on which the public announcement of the date of such meeting is first made. Each such notice shall set forth: (ia) the name and address of the stockholder who intends to make the nomination, of the beneficial owner, if any, on whose behalf the nomination is being made and of the person or persons to be nominated; (iib) a representation that the stockholder is a holder of record of stock of the corporation Corporation entitled to vote for the election of Directors on the date of such notice and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (iiic) a description of all arrangements or understandings between the stockholder or such beneficial owner and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder; (ivd) such other information regarding each nominee proposed by such stockholder as would be required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission, had the nominee been nominated, or intended to be nominated, by the Board of Directors; and (ve) the consent of each nominee to serve as a director of the corporation Corporation if so elected; (vi. For purposes of this Section 10, "public announcement" shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news servxxx xr in a document publicly filed by the Company with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) the class and number of shares of the corporation that are owned beneficially and of record by such stockholder and such beneficial owner; and (vii) whether either such stockholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of at least the percentage of the corporation’s voting shares required under applicable law to carry the proposal. In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described aboveExchange Act. Notwithstanding the third sentence foregoing provisions of this Section 2.15(a)10, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 10. Nothing in this Section 10 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Company's proxy statement pursuant to Rule 14a-8 under the Exchange Act. In the event that a person is validly designated as a nominee in accordance with this Section 10 and shall thereafter become unable or unwilling to stand for election to the number Board of Directors, the Board of Directors to be elected at an annual meeting is increased and there is no public announcement by or the corporation naming stockholder who proposed such nominee, as the nominees for the additional directorships at least 130 case may be, may designate a substitute nominee upon delivery, not fewer than five days prior to the first anniversary date of the date that the corporation’s (or its predecessor’s) proxy statement was released to stockholders in connection with the previous year’s annual meeting, a stockholder’s notice required by this Section 2.15(a) shall also be considered timely, but only with respect to nominees meeting for the additional directorshipselection of such nominee, if it shall of a written notice to the Secretary setting forth such information regarding such substitute nominee as would have been required to be delivered to the Secretary at the principal executive offices pursuant to this Section 10 had such substitute nominee been initially proposed as a nominee. Such notice shall include a signed consent to serve as a director of the corporation Corporation, if elected, of each such substitute nominee. If the chairman of the meeting for the election of Directors determines that a nomination of any candidate for election as a Director at such meeting was not later than made in accordance with the close applicable provisions of business on this Section 10, such nomination shall be void; provided, however, that nothing in this Section 10 shall be deemed to limit any voting rights upon the 10th day following occurrence of dividend arrearages provided to holders of Preferred Stock pursuant to the day on which such public announcement is first made by the corporationPreferred Stock designation for any series of Preferred Stock.

Nomination of Director Candidates. (a) Subject to the rights of holders --------------------------------- of any class or series of Preferred Stock then outstanding, nominations for the election of Directors at an annual meeting may be made by (i) the Board of Directors or a duly authorized proxy committee thereof appointed by the Board of Directors or (ii) by any stockholder entitled to vote in the election of Directors generally who complies with the procedures set forth in this Bylaw and who is a stockholder of record at the time notice is delivered to the Secretary of the corporationgenerally. Any However, any stockholder entitled to vote in the election of Directors generally may nominate one or more persons for election as Directors at an annual a meeting only if timely notice of such stockholder’s 's intent to make such nomination or nominations has been given in writing to the Secretary of the corporationCorporation. To be timely, a stockholder nomination for a director to be elected at an annual meeting shall be received at the corporation’s Corporation's principal executive offices not less than 120 calendar days in advance of the first anniversary of the date that the corporation’s Corporation's (or the corporation’s Corporation's predecessor’s's) proxy statement was released to stockholders in connection with the previous year’s 's annual meeting of stockholders, except that if no annual meeting was held in the previous year or the date of the annual meeting has been advanced changed by more than 30 calendar days from the date contemplated at the time of the previous year’s 's proxy statement, or in the event of a nomination for director to be elected at a special meeting, notice by the stockholders to be timely must be received not later than the close of business on the tenth day following the day on which public announcement such notice of the date of the special meeting was mailed or such meeting is first public disclosure was made. Each such notice shall set forth: (ia) the name and address of the stockholder who intends to make the nomination, of the beneficial owner, if any, on whose behalf the nomination is being made and of the person or persons to be nominated; (iib) a representation that the stockholder is a holder of record of stock of the corporation Corporation entitled to vote for the election of Directors directors on the date of such notice and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (iiic) a description of all arrangements or understandings between the stockholder or such beneficial owner and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder; (ivd) such other information regarding each nominee proposed by such stockholder as would be required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission, had the nominee been nominated, or intended to be nominated, by the Board of Directors; and (ve) the consent of each nominee to serve as a director of the corporation Corporation if so elected; (vi) the class and number of shares of the corporation that are owned beneficially and of record by such stockholder and such beneficial owner; and (vii) whether either such stockholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of at least the percentage of the corporation’s voting shares required under applicable law to carry the proposal. In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. Notwithstanding the third sentence of this Section 2.15(a), in the event that a person is validly designated as a nominee in accordance with this Section 2.15 and shall thereafter become unable or unwilling to stand for election to the number Board of Directors, the Board of Directors to be elected at an annual meeting is increased and there is no public announcement by or the corporation naming stockholder who proposed such nominee, as the nominees for the additional directorships at least 130 case may be, may designate a substitute nominee upon delivery, not fewer than five days prior to the first anniversary date of the date that the corporation’s (or its predecessor’s) proxy statement was released to stockholders in connection with the previous year’s annual meeting, a stockholder’s notice required by this Section 2.15(a) shall also be considered timely, but only with respect to nominees meeting for the additional directorshipselection of such nominee, if it shall of a written notice to the Secretary setting forth such information regarding such substitute nominee as would have been required to be delivered to the Secretary at the principal executive offices pursuant to this Section 2.15 had such substitute nominee been initially proposed as a nominee. Such notice shall include a signed consent to serve as a director of the corporation Corporation, if elected, of each such substitute nominee. If the chairman of the meeting for the election of Directors determines that a nomination of any candidate for election as a Director at such meeting was not later than made in accordance with the close applicable provisions of business on this Section 2.15, such nomination shall be void; provided, however, that nothing in this Section 2.15 shall be deemed to limit any voting rights upon the 10th day following occurrence of dividend arrearages provided to holders of Preferred Stock pursuant to the day on which such public announcement is first made by the corporationPreferred Stock designation for any series of Preferred Stock.

Nomination of Director Candidates. (a) Subject to any limitations stated in the rights Restated Certificate of holders of any class Incorporation or series of Preferred Stock then outstandingthe Investor Rights Agreement, nominations for the election of Directors at an annual meeting may be made by (i) the Board of Directors or a duly authorized proxy committee thereof appointed by the Board of Directors or (ii) by any stockholder entitled to vote in the election of Directors generally who complies with the notice procedures set forth in this Bylaw and who is a stockholder of record at the time notice is delivered to the Secretary of the corporationSection 2.12. Any stockholder entitled to vote in the election of Directors directors generally may nominate one or more persons for election as Directors directors at an annual a meeting only if timely written notice of such stockholder’s intent to make such nomination or nominations has been given in writing timely given, to the Secretary of the corporationCorporation. To be timely, a stockholder nomination for a director stockholder’s notice must be delivered to be elected at an annual meeting shall be or mailed and received at the corporation’s principal executive offices of the Corporation not less than 120 calendar days in advance of the first anniversary of the date that the corporation’s (or the corporation’s predecessor’s) proxy statement was released i), with respect to stockholders in connection with the previous year’s an election to be held at an annual meeting of stockholders, except ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary date of the immediately preceding annual meeting (provided, however, that if in the event that no annual meeting was held in the previous year or the annual meeting is called for a date that is not within thirty (30) days from the anniversary date of the annual meeting has been advanced by more than 30 calendar days from the date contemplated at the time of the previous preceding year’s proxy statementannual meeting, written notice by the stockholders a stockholder in order to be timely must be received not later than the close of business on the tenth day following the day on which the first public announcement disclosure of the date of such the annual meeting is was made), and (ii), with respect to the election to be held at a special meeting of stockholders for the election of directors, the close of business on the tenth (10th) day following the date on which the first public disclosure of the date of the special meeting was made. Each such Delivery shall be by hand, or by certified or registered mail, return receipt requested. In no event shall the public announcement of an adjournment of any annual or special meeting commence a new time period for giving of a stockholder notice as described above. A stockholder’s notice to the Secretary shall set forthforth (x) as to each person whom the stockholder proposes to nominate for election or re-election as a director: (i1) the name, age, business address and residence address of such person, (2) the principal occupation or employment of such person, (3) the class and number of shares of stock of the Corporation which are beneficially owned by such person, (4) any other information relating to such person that would be required to be disclosed in solicitations of proxies for the election of such person as a director of the Corporation pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended, had the nominee been nominated by the Board of Directors, and (5) such person’s written consent to being named in any proxy statement as a nominee and to serving as a director if elected; and (y) as to the stockholder giving notice: (1) the name and address address, as they appear on the Corporation’s records, of such stockholder, (2) the class and number of shares of stock of the Corporation which are beneficially owned by such stockholder who intends to make the nomination(determined as provided in clause (x)(3) above), of the beneficial owner, if any, on whose behalf the nomination is being made and of the person or persons to be nominated; (ii3) a representation that the stockholder is a holder of record of stock of the corporation Corporation entitled to vote for on the election of Directors on the date of directors at such notice meeting and that such stockholder intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; , and (iii4) a description of all agreements, arrangements or understandings between the stockholder or such beneficial owner and each nominee of the stockholder and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder; (iv) such other information regarding each nominee proposed by such stockholder as would be required to be included in a proxy statement filed pursuant to . At the proxy rules request of the Securities and Exchange Commission, had the nominee been nominated, or intended to be nominated, Board of Directors any person nominated by the Board of Directors; (v) Directors for election as a director shall furnish to the consent Secretary that information required to be set forth in a stockholder’s notice of each nomination which pertains to the nominee. 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 a director of the corporation if so elected; (vi) the class and number of shares Corporation. The presiding officer of the corporation that are owned beneficially and meeting shall refuse to acknowledge the nomination of record by such stockholder and such beneficial owner; and (vii) whether either such stockholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of at least the percentage of the corporation’s voting shares required under applicable law to carry the proposal. In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. Notwithstanding the third sentence of this Section 2.15(a), person not made in the event that the number of Directors to be elected at an annual meeting is increased and there is no public announcement by the corporation naming the nominees for the additional directorships at least 130 days prior to the first anniversary of the date that the corporation’s (or its predecessor’s) proxy statement was released to stockholders in connection compliance with the previous year’s annual meeting, a stockholder’s notice required by this Section 2.15(a) shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered to the Secretary at the principal executive offices of the corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the corporationforegoing procedure.

Nomination of Director Candidates. (a) Subject to any limitations stated in the rights Certificate of holders Incorporation of any class this Corporation or series of Preferred Stock then outstandingthe Investor Rights Agreement, nominations for the election of Directors at an annual meeting may be made by (i) the Board of Directors or a duly authorized proxy committee thereof appointed by the Board of Directors or (ii) by any stockholder entitled to vote in the election of Directors generally who complies with the procedures set forth in this Bylaw and who is a stockholder of record at the time notice is delivered to the Secretary of the corporationgenerally. Any stockholder entitled to vote in the election of Directors directors generally may nominate one or more persons for election as Directors directors at an annual a meeting only if timely written notice of such stockholder’s intent to make such nomination or nominations has been given in writing given, either by personal delivery or by United States mail, postage prepaid, to the Secretary secretary of the corporation. To be timely, a stockholder nomination for a director to be elected at an annual meeting shall be received at the corporation’s principal executive offices Corporation not less than 120 calendar days in advance of the first anniversary of the date that the corporation’s (or the corporation’s predecessor’s) proxy statement was released i), with respect to stockholders in connection with the previous year’s an election to be held at an annual meeting of stockholders, except ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary date of the immediately preceding annual meeting (provided, however, that if in the event that no annual meeting was held in the previous year or the annual meeting is called for a date that is not within thirty (30) days from the anniversary date of the annual meeting has been advanced by more than 30 calendar days from the date contemplated at the time of the previous preceding year’s proxy statementannual meeting, written notice by the stockholders a stockholder in order to be timely must be received not later than the close of business on the tenth day following the day on which the first public announcement disclosure of the date of the annual meeting was made), and (ii), with respect to the election to be held at a special meeting of stockholders for the election of directors, the close of business on the tenth (10th) day following the date on which notice of such meeting is first madegiven to stockholders. Each such notice shall set forth: forth (ia) the name and address of the stockholder who intends to make the nomination, of the beneficial owner, if any, on whose behalf the nomination is being made and of the person or persons to be nominated; (iib) the number of shares of the Corporation entitled to vote at such meeting held by the stockholder; (c) a representation that the stockholder is a holder of record of stock of the corporation Corporation entitled to vote for the election of Directors on the date of at such notice meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (iiid) a description of all arrangements or understandings between the stockholder or such beneficial owner and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder; (ive) such other information regarding each nominee proposed by such stockholder as would be required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission, had the nominee been nominated, or intended to be nominated, by the Board of Directors; and (vf) the consent of each nominee to serve as a director of the corporation Corporation if so elected; (vi) the class and number of shares . The presiding officer of the corporation that are owned beneficially and meeting shall refuse to acknowledge the nomination of record by such stockholder and such beneficial owner; and (vii) whether either such stockholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of at least the percentage of the corporation’s voting shares required under applicable law to carry the proposal. In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. Notwithstanding the third sentence of this Section 2.15(a), person not made in the event that the number of Directors to be elected at an annual meeting is increased and there is no public announcement by the corporation naming the nominees for the additional directorships at least 130 days prior to the first anniversary of the date that the corporation’s (or its predecessor’s) proxy statement was released to stockholders in connection compliance with the previous year’s annual meeting, a stockholder’s notice required by this Section 2.15(a) shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered to the Secretary at the principal executive offices of the corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the corporationforegoing procedure.

Nomination of Director Candidates. (a) Subject to the rights of the holders of any class or series of Preferred Stock then or any other class of capital stock of the Corporation (other than Common Stock) or any series of any of the foregoing that has been outstanding, nominations for the election of Directors at an annual meeting directors may be made by (i) the Board of Directors or a Directors, by any duly authorized appointed committee thereof or (ii) by any stockholder entitled to vote in for the election of Directors generally who complies with the procedures set forth in this Bylaw and who is a stockholder of record at the time notice is delivered to the Secretary of the corporationdirectors. Any stockholder entitled to vote in for the election of Directors generally directors at any meeting may nominate one or more persons for ----------------------------------------------------------------------------- AMENDED AND RESTATED BYLAWS - PAGE 5 (XXXXX GOLF, INC.) election as Directors at an annual meeting directors only if timely written notice of such stockholder’s 's intent to make such nomination is given, either by personal delivery or nominations has been given in writing by United States Mail, postage prepaid, to the Secretary of the corporation. To be timelyCorporation not later than ninety (90) days prior to the scheduled meeting, regardless of any postponements, deferrals or adjournments of that meeting to a stockholder nomination for a director to be elected at an annual meeting shall be received at the corporation’s principal executive offices not later date; PROVIDED, HOWEVER, if less than 120 calendar one hundred (100) days in advance notice or prior public disclosure of the first anniversary of the date that the corporation’s (or the corporation’s predecessor’s) proxy statement was released to stockholders in connection with the previous year’s annual meeting of stockholders, except that if no annual meeting was held in the previous year or the date of the annual scheduled meeting has been advanced by more than 30 calendar days from the date contemplated at the time of the previous year’s proxy statementis given, notice by the stockholders to be timely must be so delivered or received not later than the close of business on the tenth (10th) day following the earlier of the day on which such notice of the date of the scheduled annual meeting was mailed or the day on which public announcement of the date of such meeting is first disclosure was made. Each such notice shall set forth: (ia) the name name, age, business address and residence address of the stockholder who intends to make the nomination, of the beneficial owner, if any, on whose behalf the nomination is being made and of the person or persons intended to be nominated; (iib) a representation that the stockholder is a holder of record of stock of the corporation Corporation entitled to vote for the election of Directors on the date of at such notice meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (iiic) a description of all arrangements or understandings between the stockholder or such beneficial owner and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder; (ivd) such other information regarding each nominee proposed by such stockholder as would be have been required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission, Commission had the such requirements been applicable and each nominee been nominated, or intended to be nominated, by the Board of Directors; and (ve) the consent of each nominee to serve as a director of the corporation Corporation if so elected; (vi) the class and number of shares . The Chairman of the corporation that are owned beneficially and meeting may refuse to acknowledge the nomination of record by such stockholder and such beneficial owner; and (vii) whether either such stockholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of at least the percentage of the corporation’s voting shares required under applicable law to carry the proposal. In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. Notwithstanding the third sentence of person not made in compliance with this Section 2.15(a), in the event that the number of Directors to be elected at an annual meeting is increased and there is no public announcement by the corporation naming the nominees for the additional directorships at least 130 days prior to the first anniversary of the date that the corporation’s (or its predecessor’s) proxy statement was released to stockholders in connection with the previous year’s annual meeting, a stockholder’s notice required by this Section 2.15(a) shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered to the Secretary at the principal executive offices of the corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the corporationsection.