Nominations of Directors. (a) Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement and except as otherwise provided by the Stockholders Agreement (as long as such agreement is in effect), only persons who are nominated in accordance with the procedures set forth in this Section 3.03 are eligible for election as Directors. (b) Nominations of persons for election to the Board may only be made at a meeting properly called for the election of Directors and only (i) by or at the direction of the Board or any committee thereof or (ii) by a Stockholder who (A) was a Stockholder of record of the Corporation when the notice required by this Section 3.03 is delivered to the Secretary and at the time of the meeting, (B) is entitled to vote for the election of Directors at the meeting and (C) complies with the notice and other provisions of this Section 3.03. Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement (as long as such agreement is in effect), Section 3.03(b)(ii) is the exclusive means by which a Stockholder may nominate a person for election to the Board. Persons nominated in accordance with Section 3.03(b)(ii) are referred to as “Stockholder Nominees.” A Stockholder nominating persons for election to the Board is referred to as the “Nominating Stockholder.” (c) Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement and except as otherwise provided by the Stockholders Agreement (as long as such agreement is in effect), all nominations of Stockholder Nominees must be made by timely written notice given by or on behalf of a Stockholder of record of the Corporation (the “Notice of Nomination”). To be timely, the Notice of Nomination must be delivered personally or mailed to and received at the Office of the Corporation, addressed to the attention of the Secretary, by the following dates: (i) in the case of the nomination of a Stockholder Nominee for election to the Board at an annual meeting of Stockholders, no earlier than one hundred and twenty (120) days and no later than ninety (90) days before the first anniversary of the date of the prior year’s annual meeting of Stockholders; provided, however, that if (A) the annual meeting of Stockholders is advanced by more than thirty (30) days, or delayed by more than sixty (60) days, from the first anniversary of the prior year’s annual meeting of Stockholders or (B) no annual meeting was held during the prior year, the notice by the Stockholder to be timely must be received (1) no earlier than one hundred and twenty (120) days before such annual meeting and (2) no later than the later of ninety (90) days before such annual meeting and the tenth day after the day on which the notice of such annual meeting was made by mail or Public Disclosure; provided, further, that, solely for the purposes of the notice requirements under this Section 2.02(c), with respect to the annual meeting of stockholders of the Corporation for 2019, the date of the preceding year’s annual meeting of stockholders shall be deemed to be May 1, 2018; and (ii) in the case of the nomination of a Stockholder Nominee for election to the Board at a special meeting of Stockholders, no earlier than one hundred and twenty (120) days before and no later than the later of ninety (90) days before such special meeting and the tenth day after the day on which the notice of such special meeting was made by mail or Public Disclosure. (d) Notwithstanding anything to the contrary, if the number of Directors to be elected to the Board at a meeting of Stockholders is increased and there is no Public Disclosure by the Corporation naming the nominees for the additional directorships at least one hundred (100) days before the first anniversary of the preceding year’s annual meeting, a Notice of Nomination shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered personally and received at the Office of the Corporation, addressed to the attention of the Secretary, no later than the close of business on the tenth day following the day on which such Public Disclosure is first made by the Corporation. (e) In no event shall an adjournment, postponement or deferral, or Public Disclosure of an adjournment, postponement or deferral, of an annual or special meeting commence a new time period (or extend any time period) for the giving of the Notice of Nomination. (f) The Notice of Nomination shall set forth: (i) the Stockholder Information with respect to each Nominating Stockholder and Stockholder Associated Person; (ii) a representation to the Corporation that each Nominating Stockholder is a holder of record of stock of the Corporation entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to propose such nomination; (iii) all information regarding each Stockholder Nominee and Stockholder Associated Person that would be required to be disclosed in a solicitation of proxies subject to Section 14 of the Exchange Act, the written consent of each Stockholder Nominee to being named in a proxy statement as a nominee and to serve if elected and a completed signed questionnaire, representation and agreement required by Section 3.04; (iv) 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 a Nominating Stockholder, Stockholder Associated Person or their respective associates, or others acting in concert therewith, including all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the Nominating Stockholder, Stockholder Associated Person or any person acting in concert therewith were the “registrant” for purposes of such rule and the Stockholder Nominee were a director or executive of such registrant; (v) Stockholder Information with respect to any stock or other interests of the Corporation held by members of the Nominating Stockholder’s or its Stockholder Associated Person’s immediate family sharing the same household; (vi) a representation to the Corporation as to whether each Nominating Stockholder 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 the nomination or (B) otherwise to solicit proxies from Stockholders in support of such nomination; (vii) all other information that would be required to be filed with the SEC if the Nominating Stockholders and Stockholder Associated Persons were participants in a solicitation subject to Section 14 of the Exchange Act; and (viii) a representation and covenant for the benefit of the Corporation that the Nominating Stockholders shall provide any other information reasonably requested by the Corporation. (g) The Nominating Stockholders shall also provide any other information reasonably requested by the Corporation within ten (10) business days after such request. (h) In addition, the Nominating Stockholders shall further update and supplement the information provided to the Corporation in the Notice of Nomination or upon the Corporation’s request pursuant to Section 3.03(g) as needed, so that such information shall be true and correct as of the record date for the meeting and as of the date that is ten (10) business days before the meeting or any adjournment or postponement thereof. Such update and supplement must be delivered personally or mailed to, and received at, the Office of the Corporation, addressed to the Secretary, by no later than five (5) business days after the record date for the meeting (in the case of the update and supplement required to be made as of the record date), and not later than seven (7) business days before the date for the meeting (in the case of the update and supplement required to be made as of ten (10) business days before the meeting or any adjournment or postponement thereof). (i) The person presiding over the meeting shall, if the facts warrant, determine and declare to the meeting, that the nomination was not made in accordance with the procedures set forth in this Section 3.03, and, if he or she should so determine, he or she shall so declare to the meeting and the defective nomination shall be disregarded. (j) If the Stockholder (or a qualified representative of the Stockholder) does not appear at the applicable Stockholder meeting to nominate the Stockholder Nominees, such nomination shall be disregarded and such business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 3.03, 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 Stockholder or an electronic transmission delivered by such Stockholder to act for such Stockholder as proxy at the meeting of Stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of Stockholders. (k) Nothing in this Section 3.03 shall be deemed to affect any rights of the holders of any series of preferred stock of the Corporation pursuant to any applicable provision of the Certificate of Incorporation.
Appears in 3 contracts
Samples: Reorganization Agreement (BRP Group, Inc.), Reorganization Agreement (BRP Group, Inc.), Reorganization Agreement (Goosehead Insurance, Inc.)
Nominations of Directors. (aA) Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement and except as otherwise provided by the Stockholders Agreement (as long as such agreement is in effect), only Only persons who are nominated in accordance with the procedures set forth in this Section 3.03 3.4 are eligible for election as Directors.
(bi) Nominations The Special Nominating Committee shall nominate one person for election to the Board as a Class II Director and two persons for election to the Board as Class III Directors, each of whom shall be an Independent Director, such nominations to be made by written notice delivered personally or mailed to and received at the Office of the Corporation.
(ii) The Nominating and Corporate Governance Committee (as defined in Section 6.3 of the Certificate of Incorporation) shall nominate four persons for election to the Board as Class I Directors, two persons for election to the Board as Class II Directors, and one person for election to the Board as a Class III Director, such nominations to be made by written notice delivered personally or mailed to and received at the Office of the Corporation.
(C) Except with respect to the nominations made by the Special Nominating Committee or the Nominating and Corporate Governance Committee, as applicable, pursuant to Section 3.4(B), nominations of persons for election to the Board may only be made at a meeting properly called for the election of Directors and only (i) by or at the direction of the Board or any committee thereof or (ii) by a Stockholder who (Aa) was a Stockholder of record of the Corporation when the notice required by this Section 3.03 3.4 is delivered to the Secretary and at the time of the meeting, (Bb) is entitled to vote for the election of Directors at the meeting and (Cc) complies with the notice and other provisions of this Section 3.033.4. Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement (as long as such agreement is in effect), Section 3.03(b)(ii3.4(C)(ii) is the exclusive means by which a Stockholder may nominate a person for election to the Board. Persons nominated in accordance with Section 3.03(b)(ii3.4(C)(ii) are referred to as “Stockholder Nominees.” ”. A Stockholder nominating persons for election to the Board is referred to as the “Nominating Stockholder”.”
(cD) Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement and except as otherwise provided by the Stockholders Agreement (as long as such agreement is in effect), all All nominations of Stockholder Nominees must be made by timely written notice given by or on behalf of a Stockholder of record of the Corporation (the “Notice of Nomination”). To be timely, the Notice of Nomination must be delivered personally or mailed to and received at the Office of the Corporation, addressed to the attention of the Secretary, by the following dates:
(i) in the case of the nomination of a Stockholder Nominee for election to the Board at an annual meeting of Stockholders, no earlier than one hundred and twenty (120) 120 days and no later than ninety (90) 90 days before the first anniversary of the date of the prior year’s annual meeting of Stockholders; provided, however, that if (Aa) the annual meeting of Stockholders is advanced by more than thirty (30) 30 days, or delayed by more than sixty (60) 60 days, from the first anniversary of the prior year’s annual meeting of Stockholders or (Bb) no annual meeting was held during the prior year, the notice by the Stockholder to be timely must be received (1) no earlier than one hundred and twenty (120) 120 days before the date of such annual meeting and (2) no later than the later of ninety (90) 90 days before the date of such annual meeting and the tenth day after the day date on which the notice of such annual meeting was made by mail or Public Disclosure; provided, further, that, solely for the purposes of the notice requirements under this Section 2.02(c), with respect to the annual meeting of stockholders of the Corporation for 2019, the date of the preceding year’s annual meeting of stockholders shall be deemed to be May 1, 2018; and
(ii) in the case of the nomination of a Stockholder Nominee for election to the Board at a special meeting of Stockholders, no earlier than one hundred and twenty (120) 120 days before the date of such special meeting and (b) no later than the later of ninety (90) 90 days before the date of such special meeting and the tenth day after the day date on which the notice of such special meeting was made by mail or Public Disclosure.
(dE) Notwithstanding anything to the contrary, if the number of Directors to be elected to the Board at a meeting of Stockholders is increased effective after the time period for which nominations would otherwise be due under this Section 3.4 and there is no Public Disclosure by the Corporation naming the nominees for the additional directorships at least one hundred (100) 100 days before the first anniversary of the preceding year’s annual meeting, a Notice of Nomination shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered personally and received at the Office of the Corporation, addressed to the attention of the Secretary, no later than the close of business on the tenth day following the day on which such Public Disclosure is first made by the Corporation.
(eF) In no event shall an adjournment, postponement or deferral, or Public Disclosure of an adjournment, postponement or deferral, of an annual or special meeting commence a new time period (or extend any time period) for the giving of the Notice of Nomination.
(fG) The Notice of Nomination shall set forth:
(i) the Stockholder Information with respect to each Nominating Stockholder and Stockholder Associated Person;
(ii) a representation to the Corporation that each Nominating Stockholder nominating a Stockholder Nominee is a holder of record of stock of the Corporation entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to propose such nomination;
(iii) all information regarding each Stockholder Nominee and Stockholder Associated Person that would be required to be disclosed in a solicitation of proxies subject to Section 14 of the Exchange Act, the written consent of each Stockholder Nominee to being named in a proxy statement as a nominee and to serve if elected and a completed signed questionnaire, representation and agreement required by Section 3.04elected;
(iv) 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 a Nominating Stockholder, Stockholder Associated Person or their respective associates, or others acting in concert therewith, including all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the Nominating Stockholder, Stockholder Associated Person or any person acting in concert therewith were therewith, was the “registrant” for purposes of such rule and the Stockholder Nominee were was a director or executive of such registrant;
(v) Stockholder Information with respect to any stock and all of the agreements, contracts, understandings, arrangements, proxies or other interests relationships referred to in the foregoing subclauses (iii) and (iv), a representation that such Nominating Stockholder will notify the Corporation in writing of any such agreement, contract, understanding, arrangement, proxy or other relationship that are or will be in effect as of the Corporation held by members date of such annual meeting no later than five business days before the Nominating Stockholder’s or its Stockholder Associated Person’s immediate family sharing the same householddate of such meeting;
(vi) a representation to the Corporation as to whether each such Nominating Stockholder intends (Aa) 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 the nomination or (Bb) otherwise to solicit proxies or votes from Stockholders in support of such nomination;
(vii) all other information that would be required to be filed with the SEC if the Nominating Stockholders and Stockholder Associated Persons Person were participants in a solicitation subject to Section 14 of the Exchange Act; and
(viii) a representation and covenant for the benefit of the Corporation that the Nominating Stockholders shall provide any other information reasonably requested by the Corporation.
(g) The Nominating Stockholders shall also provide any other information reasonably requested by the Corporation of either the Nominating Stockholder or the Stockholder Nominee as the Corporation may reasonably require to determine the eligibility of such Stockholder Nominee to serve as a Director; provided, that such request must be made within five business days of the Corporation’s receipt of the Notice of Nomination.
(H) If the Nominating Stockholder or Stockholder Nominee (as applicable) does not provide the information required by Section 3.4(G)(viii) within ten (10) business days after the Corporation’s request, then such request.
(h) Nominating Stockholder’s proposal shall be disregarded. In addition, the Nominating Stockholders shall further update and supplement the information provided to the Corporation in the Notice of Nomination or upon the Corporation’s request pursuant to Section 3.03(g) as needed, so that such information shall be true and correct as of the record date for the meeting and as of the date that is ten (10) business days before the meeting or any adjournment or postponement thereof. Such update and supplement must be delivered personally or mailed to, and received at, the Office of the Corporation, addressed to the Secretary, by no later than five (5) business days after the record date for the meeting (in the case of the update and supplement required to be made as of the record date), and not later than seven (7) business days before the date for the meeting (in the case of the update and supplement required to be made as of ten (10) business days before the meeting or any adjournment or postponement thereof).
(i) The person presiding over the meeting shall, if the facts warrant, determine and declare to the meeting, meeting that the any proposed nomination of a Stockholder Nominee was not made in accordance with the procedures set forth in this Section 3.03, 3.4 and, if he or she should so determine, he or she shall so declare to the meeting and the defective nomination shall be disregarded.
(jI) If the Stockholder (or a qualified representative of the Stockholder) does not appear at the applicable Stockholder meeting of Stockholders to nominate the Stockholder Nominees, such nomination shall be disregarded and such business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 3.033.4, 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 Stockholder or an electronic transmission delivered by such Stockholder to act for such Stockholder as proxy at the meeting of Stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of Stockholders.
(kJ) Nothing in this Section 3.03 3.4 shall be deemed to affect any rights of the holders of any series of preferred stock of the Corporation pursuant to any applicable provision of the Certificate of Incorporation.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Spectrum Brands, Inc.)
Nominations of Directors. (a) Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement and except as otherwise provided by the Stockholders Agreement (as long as such agreement is in effect), only persons who are nominated in accordance with the procedures set forth in this Section 3.03 are eligible for election as Directors.
(b) Nominations of persons for election to the Board may only be made at a meeting properly called for the election of Directors and only (i) by or at the direction of the Board or any committee thereof or (ii) by a Stockholder who (A) was a Stockholder of record of the Corporation when the notice required by this Section 3.03 is delivered to the Secretary and at the time of the meeting, (B) is entitled to vote for the election of Directors at the meeting and (C) complies with the notice and other provisions of this Section 3.03. Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement (as long as such agreement is in effect), Section 3.03(b)(ii) is the exclusive means by which a Stockholder may nominate a person for election to the Board. Persons nominated in accordance with Section 3.03(b)(ii) are referred to as “Stockholder Nominees.” A Stockholder nominating persons for election to the Board is referred to as the “Nominating Stockholder.”
(c) Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement and except as otherwise provided by the Stockholders Agreement (as long as such agreement is in effect), all nominations of Stockholder Nominees must be made by timely written notice given by or on behalf of a Stockholder of record of the Corporation (the “Notice of Nomination”). To be timely, the Notice of Nomination must be delivered personally or mailed to and received at the Office of the Corporation, addressed to the attention of the Secretary, by the following dates:
(i) in the case of the nomination of a Stockholder Nominee for election to the Board at an annual meeting of Stockholders, no earlier than one hundred and twenty (120) days and no later than ninety (90) days before the first anniversary of the date of the prior year’s annual meeting of Stockholders; provided, however, that if (A) the annual meeting of Stockholders is advanced by more than thirty (30) days, or delayed by more than sixty (60) days, from the first anniversary of the prior year’s annual meeting of Stockholders or (B) no annual meeting was held during the prior year, the notice by the Stockholder to be timely must be received (1) no earlier than one hundred and twenty (120) days before such annual meeting and (2) no later than the later of ninety (90) days before such annual meeting and the tenth day after the day on which the notice of such annual meeting was made by mail or Public Disclosure; provided, further, that, solely for the purposes of the notice requirements under this Section 2.02(c), with respect to the annual meeting of stockholders of the Corporation for 2019, the date of the preceding year’s annual meeting of stockholders shall be deemed to be May 1[●], 2018; and
(ii) in the case of the nomination of a Stockholder Nominee for election to the Board at a special meeting of Stockholders, no earlier than one hundred and twenty (120) days before and no later than the later of ninety (90) days before such special meeting and the tenth day after the day on which the notice of such special meeting was made by mail or Public Disclosure.
(d) Notwithstanding anything to the contrary, if the number of Directors to be elected to the Board at a meeting of Stockholders is increased and there is no Public Disclosure by the Corporation naming the nominees for the additional directorships at least one hundred (100) days before the first anniversary of the preceding year’s annual meeting, a Notice of Nomination shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered personally and received at the Office of the Corporation, addressed to the attention of the Secretary, no later than the close of business on the tenth day following the day on which such Public Disclosure is first made by the Corporation.
(e) In no event shall an adjournment, postponement or deferral, or Public Disclosure of an adjournment, postponement or deferral, of an annual or special meeting commence a new time period (or extend any time period) for the giving of the Notice of Nomination.
(f) The Notice of Nomination shall set forth:
(i) the Stockholder Information with respect to each Nominating Stockholder and Stockholder Associated Person;
(ii) a representation to the Corporation that each Nominating Stockholder is a holder of record of stock of the Corporation entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to propose such nomination;
(iii) all information regarding each Stockholder Nominee and Stockholder Associated Person that would be required to be disclosed in a solicitation of proxies subject to Section 14 of the Exchange Act, the written consent of each Stockholder Nominee to being named in a proxy statement as a nominee and to serve if elected and a completed signed questionnaire, representation and agreement required by Section 3.04;
(iv) 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 a Nominating Stockholder, Stockholder Associated Person or their respective associates, or others acting in concert therewith, including all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the Nominating Stockholder, Stockholder Associated Person or any person acting in concert therewith were the “registrant” for purposes of such rule and the Stockholder Nominee were a director or executive of such registrant;
(v) Stockholder Information with respect to any stock or other interests of the Corporation held by members of the Nominating Stockholder’s or its Stockholder Associated Person’s immediate family sharing the same household;
(vi) a representation to the Corporation as to whether each Nominating Stockholder 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 the nomination or (B) otherwise to solicit proxies from Stockholders in support of such nomination;
(vii) all other information that would be required to be filed with the SEC if the Nominating Stockholders and Stockholder Associated Persons were participants in a solicitation subject to Section 14 of the Exchange Act; and
(viii) a representation and covenant for the benefit of the Corporation that the Nominating Stockholders shall provide any other information reasonably requested by the Corporation.
(g) The Nominating Stockholders shall also provide any other information reasonably requested by the Corporation within ten (10) business days after such request.
(h) In addition, the Nominating Stockholders shall further update and supplement the information provided to the Corporation in the Notice of Nomination or upon the Corporation’s request pursuant to Section 3.03(g) as needed, so that such information shall be true and correct as of the record date for the meeting and as of the date that is ten (10) business days before the meeting or any adjournment or postponement thereof. Such update and supplement must be delivered personally or mailed to, and received at, the Office of the Corporation, addressed to the Secretary, by no later than five (5) business days after the record date for the meeting (in the case of the update and supplement required to be made as of the record date), and not later than seven (7) business days before the date for the meeting (in the case of the update and supplement required to be made as of ten (10) business days before the meeting or any adjournment or postponement thereof).
(i) The person presiding over the meeting shall, if the facts warrant, determine and declare to the meeting, that the nomination was not made in accordance with the procedures set forth in this Section 3.03, and, if he or she should so determine, he or she shall so declare to the meeting and the defective nomination shall be disregarded.
(j) If the Stockholder (or a qualified representative of the Stockholder) does not appear at the applicable Stockholder meeting to nominate the Stockholder Nominees, such nomination shall be disregarded and such business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 3.03, 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 Stockholder or an electronic transmission delivered by such Stockholder to act for such Stockholder as proxy at the meeting of Stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of Stockholders.
(k) Nothing in this Section 3.03 shall be deemed to affect any rights of the holders of any series of preferred stock of the Corporation pursuant to any applicable provision of the Certificate of Incorporation.
Appears in 1 contract
Samples: Reorganization Agreement (Goosehead Insurance, Inc.)
Nominations of Directors.
(a) Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement and except Except as otherwise provided by the Stockholders Agreement (as long as such agreement is in effect)applicable laws, only persons who are nominated in accordance with the procedures set forth in this Section 3.03 are Article 14.12 shall be eligible for election as Directorsdirectors of the Company.
(b) Nominations of persons for election to the Board board of directors of the Company may only be made at a any annual meeting properly of shareholders, or at any special meeting of shareholders if one of the purposes for which the special meeting was called for was the election of Directors directors. Only persons who are eligible under the Business Corporations Act and only who are nominated in accordance with the following procedures shall be eligible for election as directors of the Company:
(i) by or at the direction of the Board board of directors of the Company, including pursuant to a notice of meeting;
(ii) by or at the direction or request of one or more shareholders pursuant to a valid “proposal” made in accordance with Division 7 of Part 5 of the Business Corporations Act, or a requisition of the shareholders made in accordance with section 167 of the Business Corporation Act; or
(iii) by any committee thereof person (a “Nominating Shareholder”):
(A) who, at the close of business on the date the Nominating Shareholder gives the notice provided for in Article 14.12(e) below and at the close of business on the record date for notice of such meeting, (i) is entered in the central securities register of the Company as a holder of one or more common shares carrying the right to vote at such meeting or (ii) by beneficially owns shares that are entitled to be voted at such meeting and provides evidence of such ownership that is satisfactory to the Company, acting reasonably. In cases where a Stockholder who (A) was a Stockholder of record of the Corporation when Nominating Shareholder is not an individual, the notice required set forth in Article 14.12(e) must be signed by this Section 3.03 an authorized representative, being a duly authorized director, officer, manager, trustee or partner of such entity who provides such evidence of such authorization that is delivered satisfactory to the Secretary and at the time of the meetingCompany, acting reasonably; and
(B) is entitled to vote for the election of Directors at the meeting and (C) who complies with the notice and other provisions of procedures set forth below in this Section 3.03. Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement (as long as such agreement is in effect), Section 3.03(b)(ii) is the exclusive means by which a Stockholder may nominate a person for election to the Board. Persons nominated in accordance with Section 3.03(b)(ii) are referred to as “Stockholder NomineesArticle 14.12.” A Stockholder nominating persons for election to the Board is referred to as the “Nominating Stockholder.”
(c) Subject In addition to Section 3.03(k) and obtaining any required stockholder votes or consents other requirements under the Stockholders Agreement and except as otherwise provided by the Stockholders Agreement (as long as such agreement is in effect)applicable laws, all nominations of Stockholder Nominees must for a nomination to be made by a Nominating Shareholder, the Nominating Shareholder must have given notice thereof to the Company that is both timely (in accordance with Article 14.12(d)) and in proper written form (in accordance with Article 14.12(d)) by delivering such notice given by or on behalf of a Stockholder of record to the registered office of the Corporation Company.
(the “Notice of Nomination”). d) To be timely, a Nominating Shareholder’s notice to the Notice of Nomination Company must be delivered personally or mailed to and received at the Office of the Corporation, addressed to the attention of the Secretary, by the following datesmade:
(i) in the case of the nomination of a Stockholder Nominee for election to the Board at an annual meeting of Stockholdersshareholders, no earlier not less than one hundred and twenty (120) 55 days and no later than ninety (90) days before the first anniversary of prior to the date of the prior year’s annual meeting of Stockholdersshareholders; provided, however, that if (A) in the event that the annual meeting of Stockholders shareholders is advanced by more than thirty (30) days, or delayed by more than sixty (60) days, from the first anniversary of the prior year’s annual meeting of Stockholders or (B) no annual meeting was held during the prior year, the notice by the Stockholder to be timely must be received (1) no earlier held on a date that is less than one hundred and twenty (120) 65 days before such annual meeting and (2) no later than the later of ninety (90) days before such annual meeting and the tenth day after the day date (the “Notice Date”) on which the notice first public announcement (as defined below) of such annual meeting was made by mail or Public Disclosure; provided, further, that, solely for the purposes of the notice requirements under this Section 2.02(c), with respect to the annual meeting of stockholders of the Corporation for 2019, the date of the preceding year’s annual meeting was made, notice by the Nominating Shareholder may be made not later than the close of stockholders shall be deemed to be May 1, 2018business on the 10th day following the Notice Date; and
(ii) in the case of the nomination of a Stockholder Nominee for election to the Board at a special meeting (which is not also an annual meeting) of Stockholders, no earlier than one hundred and twenty (120) days before and no later than the later of ninety (90) days before such special meeting and the tenth day after the day on which the notice of such special meeting was made by mail or Public Disclosure.
(d) Notwithstanding anything to the contrary, if the number of Directors to be elected to the Board at a meeting of Stockholders is increased and there is no Public Disclosure by the Corporation naming the nominees shareholders called for the additional directorships at least one hundred purpose of electing directors (100) days before the first anniversary of the preceding year’s annual meetingwhether or not called for other purposes), a Notice of Nomination shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered personally and received at the Office of the Corporation, addressed to the attention of the Secretary, no not later than the close of business on the tenth 15th day following the day on which the first public announcement of the date of the special meeting of shareholders was made. The time periods for the giving of a Nominating Shareholder’s notice set forth above shall in all cases be determined based on the original date of the applicable annual meeting or special meeting of shareholders, and in no event shall any adjournment or postponement of a meeting of shareholders, or the reconvening of any adjourned or postponed meeting of shareholders, or the announcement thereof commence a new time period for the giving of such Public Disclosure is first made by the Corporationnotice.
(e) In no event shall an adjournmentTo be in proper written form, postponement or deferral, or Public Disclosure of an adjournment, postponement or deferral, of an annual or special meeting commence a new time period (or extend any time period) for Nominating Shareholder’s notice to the giving of the Notice of Nomination.
(f) The Notice of Nomination shall Company must set forth:
(i) the Stockholder Information with respect as to each person whom the Nominating Stockholder Shareholder proposes to nominate for election as a director:
(A) the name, age, business address and Stockholder Associated Personresidential address of the person;
(iiB) a representation to the Corporation that each Nominating Stockholder is a holder of record of stock present principal occupation or employment of the Corporation entitled to vote at person and the meeting and intends to appear in person principal occupation or by proxy at employment history within the meeting to propose such nominationfive years preceding the effective date of the notice;
(iiiC) all the citizenship of such person;
(D) the number of common shares of the Company which are directly or indirectly controlled or directed or which are owned beneficially or of record by the person as of the record date for the meeting of shareholders (if such date shall then have been made publicly available and shall have occurred) and also as of the date of such notice;
(E) the amount and material terms of any other securities, including any options, warrants or convertible securities, in the capital of the Company which are directly or indirectly controlled or directed or which are owned beneficially or of record by the person as of the record date for the meeting of shareholders (if such date shall then have been made publicly available and shall have occurred) and also as of the date of such notice;
(F) a personal information regarding each Stockholder Nominee and Stockholder Associated Person form in the form prescribed by the TSX Venture Exchange, or any other similar forms required by any applicable stock exchange on which the shares of the Company trade;
(G) confirmation that such person is not prohibited or disqualified from acting as a director under Applicable Securities Laws (as defined below), the Business Corporations Act or any other legislation; and
(H) any other information relating to the person that would be required to be disclosed in a dissident’s proxy circular in connection with solicitation of proxies subject for election of directors pursuant to Section 14 the Business Corporations Act and Applicable Securities Laws; and
(ii) as to the Nominating Shareholder giving the notice, full particulars regarding any proxy, contract, agreement, arrangement or understanding pursuant to which such Nominating Shareholder has a right to vote or direct the voting of any shares of the Exchange Act, the written consent of each Stockholder Nominee to being named in a proxy statement as a nominee and to serve if elected and a completed signed questionnaire, representation and agreement required by Section 3.04;
(iv) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, Company and any other material relationships, between or among a information relating to such Nominating Stockholder, Stockholder Associated Person or their respective associates, or others acting in concert therewith, including all information Shareholder that would be required to be disclosed made in a dissident’s proxy circular in connection with solicitations of proxies for election of directors pursuant to Rule 404 promulgated under Regulation S-K if the Nominating Stockholder, Stockholder Associated Person or Business Corporations Act and Applicable Securities Laws.
(f) The Company may require any person acting in concert therewith were proposed nominee to furnish such other information as may reasonably be required by the “registrant” for purposes Company to determine the eligibility of such rule and the Stockholder Nominee were proposed nominee to serve as a director of the Company or executive that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such registrant;
(v) Stockholder Information with respect to any stock or other interests of the Corporation held by members of the Nominating Stockholder’s or its Stockholder Associated Person’s immediate family sharing the same household;
(vi) a representation to the Corporation as to whether each Nominating Stockholder 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 the nomination or (B) otherwise to solicit proxies from Stockholders in support of such nomination;
(vii) all other information that would be required to be filed with the SEC if the Nominating Stockholders and Stockholder Associated Persons were participants in a solicitation subject to Section 14 of the Exchange Act; and
(viii) a representation and covenant for the benefit of the Corporation that the Nominating Stockholders shall provide any other information reasonably requested by the Corporationproposed nominee.
(g) The Nominating Stockholders No person shall also provide be eligible for election as a director of the Company unless nominated in accordance with the provisions of this Article 14.12; provided, however, that nothing in this Article 14.12 shall be deemed to preclude discussion by a shareholder (as distinct from the nomination of directors) at a meeting of shareholders of any other information reasonably requested by the Corporation within ten (10) business days after matter that is properly before such request.
(h) In addition, the Nominating Stockholders shall further update and supplement the information provided meeting pursuant to the Corporation in the Notice of Nomination or upon the Corporation’s request pursuant to Section 3.03(g) as needed, so that such information shall be true and correct as provisions of the record date for Business Corporations Act or the discretion of the chair of the meeting. The chair of the meeting shall have the power and as of the date that is ten (10) business days before the meeting or any adjournment or postponement thereof. Such update and supplement must be delivered personally or mailed to, and received at, the Office of the Corporation, addressed duty to the Secretary, by no later than five (5) business days after the record date for the meeting (in the case of the update and supplement required to be made as of the record date), and not later than seven (7) business days before the date for the meeting (in the case of the update and supplement required to be made as of ten (10) business days before the meeting or any adjournment or postponement thereof).
(i) The person presiding over the meeting shall, if the facts warrant, determine and declare to the meeting, that the whether a nomination was not made in accordance with the procedures set forth in this Section 3.03, Article 14.12 and, if he or she should so determineany proposed nomination is not in compliance with this Article 14.12, he or she shall so to declare to the meeting and the that such defective nomination shall be disregarded.
(jh) If For the Stockholder (or a qualified representative of the Stockholder) does not appear at the applicable Stockholder meeting to nominate the Stockholder Nominees, such nomination shall be disregarded and such business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 3.03, 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 Stockholder or an electronic transmission delivered by such Stockholder to act for such Stockholder as proxy at the meeting of Stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of Stockholders.
(k) Nothing in this Section 3.03 shall be deemed to affect any rights of the holders of any series of preferred stock of the Corporation pursuant to any applicable provision of the Certificate of Incorporation.Article 14.12:
Appears in 1 contract
Samples: Amalgamation Agreement
Nominations of Directors. (a) Notwithstanding the foregoing provisions of this Section 3.3, each Director shall serve until his or her successor is duly elected and qualified or until his or her earlier death, resignation, disqualification, or removal. No decrease in the authorized number of Directors constituting the Board shall shorten the term of any incumbent Director.
(b) Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement and except as otherwise provided by the Stockholders Agreement (as long as such agreement is in effect3.3(k), only persons who are nominated in accordance with the procedures set forth in this Section 3.03 3.3 are eligible for election as Directors.
(bc) Nominations of persons for election to the Board may only be made at a meeting of Stockholders properly called for the election of Directors and only (i) by or at the direction of the Board or any committee thereof or (ii) by a Stockholder who (A) was a Stockholder of record of the Corporation when the notice required by this Section 3.03 3.3 is delivered to the Secretary and at the time of the such meeting, (B) is entitled to vote for the election of Directors at the such meeting and (C) complies with the notice and other provisions of this Section 3.033.3. Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement (as long as such agreement is in effect3.3(k), clause (ii) of this Section 3.03(b)(ii3.3(c) is the exclusive means by which a Stockholder may nominate a person for election to the Board. Persons nominated in accordance with clause (ii) of this Section 3.03(b)(ii3.3(c) are referred to as “Stockholder Nominees.” A Stockholder nominating persons for election to the Board is referred to as the “Nominating Stockholder.”
(cd) Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement and except as otherwise provided by the Stockholders Agreement (as long as such agreement is in effect3.3(k), all nominations of Stockholder Nominees must be made by timely written notice given by or on behalf of a Stockholder of record of the Corporation (the “Notice of Nomination”). To be timely, the Notice of Nomination must be delivered personally or mailed to to, and received at at, the Office of the Corporation, addressed to the attention of the Secretary, by the following dates:
(i) in the case of the nomination of a Stockholder Nominee for election to the Board at an annual meeting of Stockholders, no earlier than one hundred and twenty (120) 120 days and no later than ninety (90) 90 days before the first anniversary of the date of the prior year’s annual meeting of Stockholders; provided, however, that if (A) the annual meeting of Stockholders is advanced by more than thirty (30) 30 days, or delayed by more than sixty (60) 60 days, from the first anniversary of the prior year’s annual meeting of Stockholders or (B) no annual meeting of Stockholders was held during the prior year, the notice by the Stockholder to be timely must be received (1) no earlier than one hundred and twenty (120) 120 days before such annual meeting and (2) no later than the later of ninety (90) 90 days before such annual meeting and the tenth day after the day on which the notice of such annual meeting was made by mail or Public Disclosure; provided, further, that, solely for the purposes of the notice requirements under this Section 2.02(c), with respect to the annual meeting of stockholders of the Corporation for 2019, the date of the preceding year’s annual meeting of stockholders shall be deemed to be May 1, 2018; and
(ii) in the case of the nomination of a Stockholder Nominee for election to the Board at a special meeting of Stockholders, no earlier than one hundred and twenty (120) 120 days before and no later than the later of ninety (90) 90 days before such special meeting and the tenth day after the day on which the notice of such special meeting was made by mail or Public Disclosure.
(de) Notwithstanding anything to the contrary, if the number of Directors to be elected to the Board at a meeting of Stockholders is increased and there is no Public Disclosure by the Corporation naming the nominees for the additional directorships at least one hundred (100) 100 days before the first anniversary of the preceding year’s annual meetingmeeting of Stockholders, a Notice of Nomination shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered personally and received at the Office of the Corporation, addressed to the attention of the Secretary, no later than the close of business on the tenth day following the day on which such Public Disclosure is first made by the Corporation.
(ef) In no event shall an adjournment, postponement adjournment or deferralpostponement, or Public Disclosure of an adjournment, postponement adjournment or deferralpostponement, of an annual or special meeting of Stockholders commence a new time period (or extend any time period) for the giving of the Notice of Nomination.
(fg) The Notice of Nomination shall set forth:
(i) the Stockholder Information with respect to each Nominating Stockholder and Stockholder Associated PersonPerson of such Nominating Stockholder;
(ii) a representation to the Corporation that each Nominating Stockholder is a holder of record of stock of the Corporation entitled to vote at the meeting of Stockholders and intends to appear in person or by proxy at the such meeting to propose such nomination;
(iii) all information regarding each Stockholder Nominee and Stockholder Associated Person of the Nominating Stockholder nominating such Stockholder Nominee that would be required to be disclosed in a solicitation of proxies subject to Section 14 of the Exchange Act, the written consent of each such Stockholder Nominee to being named in a proxy statement as a nominee and to serve if elected and a completed signed questionnaire, representation and agreement required by Section 3.043.4;
(iv) 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 a Nominating Stockholder, Stockholder Associated Person of such Nominating Stockholder or their respective associates, or others acting in concert therewith, including all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the such Nominating Stockholder, Stockholder Associated Person of such Nominating Stockholder or any person acting in concert therewith were the “registrant” for purposes of such rule and the Stockholder Nominee nominated by such Stockholder Nominee were a director or executive of such registrant;
(v) the Stockholder Information with respect to any stock or other interests of the Corporation held by members of the Nominating Stockholder’s or its Stockholder Associated Person’s immediate family sharing the same household;
(vi) a representation to the Corporation as to whether each Nominating Stockholder 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 the nomination of such Nominating Stockholder’s Stockholder Nominees or (B) otherwise to solicit proxies from Stockholders in support of such nomination;
(vii) all other information that would be required to be filed with the SEC if the each Nominating Stockholders Stockholder and Stockholder Associated Persons of such Nominating Stockholder were participants in a solicitation subject to Section 14 of the Exchange Act; and
(viii) a representation and covenant for the benefit of the Corporation that the each Nominating Stockholders Stockholder shall provide any other information reasonably requested by the Corporation.
(gh) The Nominating Stockholders shall also provide any other information reasonably requested by the Corporation within ten (10) business days after such request.
(hi) In addition, the Nominating Stockholders shall further update and supplement the information provided to the Corporation in the Notice of Nomination or upon the Corporation’s request pursuant to Section 3.03(g3.3(g) as needed, so that such information shall be true and correct as of the record date for the meeting of Stockholders and as of the date that is ten (10) five business days before the such meeting or any adjournment or postponement thereof. Such update and supplement must be delivered personally or mailed to, and received at, the Office of the Corporation, addressed to the Secretary, by no later than five (5) business days after the record date for the meeting of Stockholders (in the case of the update and supplement required to be made as of the record date), and not later than seven (7) two business days before the date for the such meeting (in the case of the update and supplement required to be made as of ten (10) five business days before the meeting or any adjournment or postponement thereof).
(ij) The person presiding over the meeting of Stockholders shall, if the facts warrant, determine and declare to the such meeting, that the nomination of Directors was not made in accordance with the procedures set forth in this Section 3.033.3, and, if he or she should so determine, he or she shall so declare to the such meeting and the defective nomination shall be disregarded.
(jk) If the a Nominating Stockholder (or a qualified representative of the such Stockholder) does not appear at the applicable Stockholder meeting to nominate the its Stockholder Nominees, such nomination shall be disregarded and such business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 3.033.3, 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 Stockholder or an electronic transmission delivered by such Stockholder to act for such Stockholder as proxy at the meeting of Stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of Stockholders.
(kl) Nothing in this Section 3.03 3.3 shall be deemed to affect any rights of the holders of any series of preferred stock of the Corporation pursuant to any applicable provision of the Certificate of Incorporation.
Appears in 1 contract
Samples: Business Combination Agreement (ArcLight Clean Transition Corp. II)
Nominations of Directors. (a) Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement and except Except as otherwise provided by the Stockholders Agreement (as long as such agreement is in effectSection 1.2(b), only persons who are nominated in accordance with the procedures set forth in this Section 3.03 are 1.11 shall be eligible for election by the stockholders as Directors.
(b) directors of the corporation. Nominations of persons for election to the Board may only be made at a meeting properly called for the election of Directors and only stockholders (i) pursuant to the corporation’s notice of meeting (or any supplement thereto) given by or at the direction of the Board or any committee thereof or Board, (ii) otherwise properly brought before the meeting by a Stockholder or at the direction of the Board, or (iii) provided that the Board has determined that directors shall be elected at such meeting, by any stockholder of the corporation who (A) was is a Stockholder stockholder of record at the time of giving of the Corporation when the notice required by provided for in this Section 3.03 is delivered to the Secretary 1.11 and at the time of the meeting, (B) is entitled to vote for the election of Directors directors at the such meeting and (C) complies shall have complied with the notice and other provisions of procedures set forth in this Section 3.03. Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement (as long as such agreement is in effect), Section 3.03(b)(ii) is the exclusive means by which a Stockholder may nominate a person for election to the Board. Persons nominated in accordance with Section 3.03(b)(ii) are referred to as “Stockholder Nominees.” A Stockholder nominating persons for election to the Board is referred to as the “Nominating Stockholder.”
(c) Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement 1.11; and except as otherwise provided in Section 1.2(b), clause (iii) shall be the exclusive means for a stockholder to make nominations of persons to the Board before or at a meeting of stockholders. No stockholder, other than the stockholders requesting a special meeting pursuant to and in compliance with Section 1.2(b), shall be permitted to submit nominations at any Stockholder Requested Special Meeting. To be eligible to be a nominee for election or re-election as a director of the corporation, the prospective nominee (whether nominated by or at the direction of the Board or by a stockholder), or someone acting on such prospective nominee’s behalf, must deliver (in accordance with any applicable time periods prescribed for delivery of notice under this Section 1.11) to the secretary at the principal executive offices of the corporation a written questionnaire providing such information with respect to the background and qualifications of such person and the background of any other person or entity on whose behalf the nomination is being made that would be required to be disclosed to stockholders pursuant to applicable law or the rules and regulations of any stock exchange applicable to the corporation, including all information concerning such persons that would be required to be disclosed in solicitations of proxies for election of directors pursuant to and in accordance with Regulation 14A under the Exchange Act (which questionnaire shall be provided by the Stockholders Agreement secretary upon written request). The prospective nominee must also provide a written representation and agreement, in the form provided by the secretary upon written request, that such prospective nominee: (i) will abide by the requirements of Section 1.5(b)(iii); (ii) is not and will not become a party to (A) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as long to how such prospective nominee, if elected as a director of the corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the corporation or (B) any Voting Commitment that could limit or interfere with such agreement prospective nominee’s ability to comply, if elected as a director of the corporation, with such prospective nominee’s fiduciary duties under applicable law; (iii) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the corporation with respect to any direct or indirect compensation, reimbursement or indemnification in effectconnection with service or action as a director that has not been disclosed therein; and (iv) would be in compliance if elected as a director of the corporation, and will comply with all applicable corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the corporation. For purposes of this Section 1.11, a “nominee” shall include any person being considered to fill a vacancy on the Board.
(b) Except as otherwise provided in Section 1.2(b), all nominations of Stockholder Nominees by any stockholder must be made by pursuant to timely notice in proper written notice given by or on behalf of a Stockholder of record form to the secretary of the Corporation (the “Notice of Nomination”)corporation in accordance with this paragraph. To be timely, the Notice of Nomination a stockholder’s notice must be delivered personally or mailed to and received by the secretary at the Office principal executive offices of the Corporation, addressed to the attention of the Secretary, by the following dates:
corporation (i) in the case of the nomination of a Stockholder Nominee for election to the Board at an annual meeting of Stockholdersmeeting, no earlier not less than one hundred and twenty (120) 90 days and no later than ninety (90) days before the first anniversary of the date of the prior year’s annual meeting of Stockholders; provided, however, that if (A) the annual meeting of Stockholders is advanced by nor more than thirty (30) days, or delayed by more than sixty (60) days, from the first anniversary 120 days in advance of the prior year’s annual meeting of Stockholders or (B) no annual meeting was held during the prior year, the notice by the Stockholder to be timely must be received (1) no earlier than one hundred and twenty (120) days before such annual meeting and (2) no later than the later of ninety (90) days before such annual meeting and the tenth day after the day on which the notice of such annual meeting was made by mail or Public Disclosure; provided, further, that, solely for the purposes of the notice requirements under this Section 2.02(c), with respect to the annual meeting of stockholders of the Corporation for 2019, the date of the preceding year’s annual meeting of stockholders shall be deemed to be May 1, 2018; and
(ii) in the case of the nomination of a Stockholder Nominee for election to the Board at a special meeting of Stockholders, no earlier than one hundred and twenty (120) days before and no later than the later of ninety (90) days before such special meeting and the tenth day after the day on which the notice of such special meeting was made by mail or Public Disclosure.
(d) Notwithstanding anything to the contrary, if the number of Directors to be elected to the Board at a meeting of Stockholders is increased and there is no Public Disclosure by the Corporation naming the nominees for the additional directorships at least one hundred (100) days before the first anniversary of the preceding year’s annual meeting; provided, a Notice of Nomination shall also be considered timelyhowever, but only with respect to nominees for that in the additional directorships, if it shall be delivered personally and received at event that no annual meeting was held in the Office previous year or the date of the Corporation, addressed to annual meeting has been advanced by more than 30 days or delayed by more than 60 days from the attention date of the Secretaryprevious year’s meeting, no notice by the stockholder to be timely must be so received not earlier than the opening 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, the tenth day following the day on which such Public Disclosure public disclosure (as defined in Section 1.13 hereof) of the date of the meeting is first made, and (ii) in the case of a special meeting at which the Board gives notice that directors are to be elected, not earlier than the opening of business on the 120th day prior to such special meeting and not later than the close of business on the later of the 90th day prior to such special meeting or, if later, the tenth day following the day on which public disclosure is made of the date of the special meeting and of the nominees proposed by the Corporation.
(e) Board to be elected at such meeting. In no event shall an adjournment, any adjournment or postponement of a stockholders meeting or deferral, or Public Disclosure of an adjournment, postponement or deferral, of an annual or special meeting the public disclosure thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. To be in proper written form, such stockholder’s notice to the Notice of Nomination.
(f) The Notice of Nomination secretary shall set forth:
forth in writing (i) the Stockholder Information with respect as to each Nominating Stockholder and Stockholder Associated Person;
person whom such stockholder proposes to nominate for election or re-election as a director, (ii) a representation to the Corporation that each Nominating Stockholder is a holder of record of stock of the Corporation entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to propose such nomination;
(iiiA) all information regarding each Stockholder Nominee and Stockholder Associated Person relating to such person that would be required to be disclosed in a solicitation solicitations of proxies subject for election of directors, or is otherwise required, in each case pursuant to Section 14 of and in accordance with Regulation 14A under the Exchange Act, the Act (including such person’s written consent of each Stockholder Nominee to being named in a the proxy statement as a nominee and to serve serving as a director if elected and a completed signed questionnaire, representation and agreement required by Section 3.04;
elected) as well as (ivB) 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 a Nominating Stockholdersuch stockholder and beneficial owner, Stockholder Associated Person or if any, on whose behalf the nomination is being made, 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 all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the Nominating Stockholderstockholder making the nomination and any beneficial owner on whose behalf the nomination is made, Stockholder Associated Person if any, or any affiliate or associate thereof or person acting in concert therewith therewith, were the “registrant” for purposes of such rule and the Stockholder Nominee nominee were a director or executive officer of such registrant;
; (vii) as to the stockholder giving the notice and the beneficial owner on whose behalf the nomination is made, the Proposing Stockholder Information with respect to any stock or other interests of the Corporation held by members of the Nominating Stockholder’s or its Stockholder Associated Person’s immediate family sharing the same household;
(vias defined in Section 1.13 hereof); (iii) a representation that the stockholder is a holder of record of stock of the corporation entitled to vote at such meeting and intends to appear in person or by proxy at the Corporation meeting to propose such nomination; and (iv) a representation as to whether each Nominating Stockholder the stockholder or the beneficial owner, if any, intends, or is or intends to be part of a group that intends, (A) to deliver a proxy statement and and/or form of proxy to holders of at least the percentage of the Corporationcorporation’s outstanding capital stock required to approve elect the nomination or nominee and/or (B) otherwise to solicit proxies from Stockholders stockholders in support of such nomination;
(vii) all other . At the request of the Board, any person nominated by the Board for election as a director shall furnish to the secretary that information that would be required to be filed with the SEC if the Nominating Stockholders and Stockholder Associated Persons were participants set forth in a solicitation subject stockholder’s notice of nomination which pertains to Section 14 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 an independent director of the Exchange Act; and
(viii) corporation or that could be material to a representation and covenant for the benefit reasonable stockholder’s understanding of the Corporation that independence, or lack thereof, of such nominee. Stockholders making a nomination pursuant to this Section 1.11, beneficial owners on whose behalf the Nominating Stockholders shall provide any other information reasonably requested by the Corporation.
(g) The Nominating Stockholders shall also provide any other information reasonably requested by the Corporation within ten (10) business days after such request.
(h) In additionnomination is made, the Nominating Stockholders and nominees shall further update and supplement the information provided to required under this Section 1.11 not later than 10 days after the Corporation in record date for the Notice of Nomination or upon the Corporation’s request pursuant to Section 3.03(g) as needed, meeting so that such information shall be true and correct as of the record date date. Notwithstanding anything in this Section 1.11 to the contrary, in the event that the number of directors to be elected to the Board of the corporation at a stockholders meeting is increased effective at such meeting and there is no public disclosure by the corporation naming all the nominees propose d by the Board for the meeting and as additional directorships at least 100 days in advance of the date that is ten (10) business days before first anniversary of the preceding year’s annual meeting or any adjournment or postponement thereof. Such update and supplement must in the event of a special meeting of stockholders called for the purpose of electing directors, a stockholder’s notice required by this Section 1.11 shall also be considered timely, but only with respect to nominees for such additional directorships, if it shall be delivered personally or mailed to, to and received at, by the Office of the Corporation, addressed to the Secretary, by no later than five (5) business days after the record date for the meeting (in the case of the update and supplement required to be made as of the record date), and secretary not later than seven (7) the close of business days before on the date for tenth day following the meeting (in day on which such public disclosure is first made by the case of the update and supplement required to be made as of ten (10) business days before the meeting or any adjournment or postponement thereof)corporation.
(ic) The Except as otherwise provided in Section 1.2(b), no person shall be eligible for election by the stockholders as a director unless nominated in accordance with the procedures set forth in this Section 1.11. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the person presiding over the meeting shall, if the facts warrant, determine and declare to at the meeting, meeting that the a nomination was not made in accordance with the procedures set forth prescribed by these Bylaws (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination is made solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such stockholder’s nominee in compliance with such stockholder’s representation as required by clause (b)(iv) of this Section 3.03, and, 1.11); and if he or she should shall so determine, then he or she shall so declare to at the meeting and that the defective nomination shall be disregarded.
(j) If the Stockholder (or a qualified representative of the Stockholder) does not appear at the applicable Stockholder meeting to nominate the Stockholder Nominees, such nomination shall be disregarded and such business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 3.03, 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 Stockholder or an electronic transmission delivered by such Stockholder to act for such Stockholder as proxy at the meeting of Stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of Stockholders.
(k) Nothing in this Section 3.03 shall be deemed to affect any rights of the holders of any series of preferred stock of the Corporation pursuant to any applicable provision of the Certificate of Incorporation.
Appears in 1 contract
Nominations of Directors. (aA) Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement and except as otherwise provided by the Stockholders Agreement (as long as such agreement is in effect), only Only persons who are nominated in accordance with the procedures set forth in this Section 3.03 3.4 are eligible for election as Directors.
(bB) Nominations The Nominating and Corporate Governance Committee shall nominate for election to the Board the total number of persons as shall stand for election at the applicable meeting of the stockholders.
(C) Except with respect to the nominations made by the Nominating and Corporate Governance Committee pursuant to Section 3.4(B), nominations of persons for election to the Board may only be made at a meeting properly called for the election of Directors and only (i) by or at the direction of the Board or any committee thereof or (ii) by a Stockholder who (Aa) was a Stockholder of record of the Corporation when the notice required by this Section 3.03 3.4 is delivered to the Secretary and at the time of the meeting, (Bb) is entitled to vote for the election of Directors at the meeting and (Cc) complies with the notice and other provisions of this Section 3.033.4. Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under rights set forth in an agreement with the Stockholders Agreement (as long as such agreement is in effect)Corporation, Section 3.03(b)(ii3.4(C)(ii) is the exclusive means by which a Stockholder may nominate a person for election to the Board. Persons nominated in accordance with Section 3.03(b)(ii3.4(C)(ii) are referred to as “Stockholder Nominees.” ”. A Stockholder nominating persons for election to the Board is referred to as the “Nominating Stockholder”.”
(cD) Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement and except as otherwise provided by the Stockholders Agreement (as long as such agreement is in effect), all All nominations of Stockholder Nominees must be made by timely written notice given by or on behalf of a Stockholder of record of the Corporation (the “Notice of Nomination”). To be timely, the Notice of Nomination must be delivered personally or mailed to and received at the Office of the Corporation, addressed to the attention of the Secretary, by the following dates:
(i) in the case of the nomination of a Stockholder Nominee for election to the Board at an annual meeting of Stockholders, no earlier than one hundred and twenty (120) 120 days and no later than ninety (90) 90 days before the first anniversary of the date of the prior year’s annual meeting of Stockholders; provided, however, that if (Aa) the annual meeting of Stockholders is advanced by more than thirty (30) 30 days, or delayed by more than sixty (60) 60 days, from the first anniversary of the prior year’s annual meeting of Stockholders or (Bb) no annual meeting was held during the prior year, the notice by the Stockholder to be timely must be received (1) no earlier than one hundred and twenty (120) 120 days before the date of such annual meeting and (2) no later than the later of ninety (90) 90 days before the date of such annual meeting and the tenth day after the day date on which the notice of such annual meeting was made by mail or Public Disclosure; provided, further, that, solely for the purposes of the notice requirements under this Section 2.02(c), with respect to the annual meeting of stockholders of the Corporation for 2019, the date of the preceding year’s annual meeting of stockholders shall be deemed to be May 1, 2018; and
(ii) in the case of the nomination of a Stockholder Nominee for election to the Board at a special meeting of Stockholders, no earlier than one hundred and twenty (120) 120 days before the date of such special meeting and (b) no later than the later of ninety (90) 90 days before the date of such special meeting and the tenth day after the day date on which the notice of such special meeting was made by mail or Public Disclosure.
(dE) Notwithstanding anything to the contrary, if the number of Directors to be elected to the Board at a meeting of Stockholders is increased effective after the time period for which nominations would otherwise be due under this Section 3.4 and there is no Public Disclosure by the Corporation naming the nominees for the additional directorships at least one hundred (100) 100 days before the first anniversary of the preceding year’s annual meeting, a Notice of Nomination shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered personally and received at the Office of the Corporation, addressed to the attention of the Secretary, no later than the close of business on the tenth day following the day on which such Public Disclosure is first made by the Corporation.
(eF) In no event shall an adjournment, postponement or deferral, or Public Disclosure of an adjournment, postponement or deferral, of an annual or special meeting commence a new time period (or extend any time period) for the giving of the Notice of Nomination.
(fG) The Notice of Nomination shall set forth:
(i) the Stockholder Information with respect to each Nominating Stockholder and Stockholder Associated Person;
(ii) a representation to the Corporation that each Nominating Stockholder nominating a Stockholder Nominee is a holder of record of stock of the Corporation entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to propose such nomination;
(iii) all information regarding each Stockholder Nominee and Stockholder Associated Person that would be required to be disclosed in a solicitation of proxies subject to Section 14 of the Exchange Act, the written consent of each Stockholder Nominee to being named in a proxy statement as a nominee and to serve if elected and a completed signed questionnaire, representation and agreement required by Section 3.04elected;
(iv) 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 a Nominating Stockholder, Stockholder Associated Person or their respective associates, or others acting in concert therewith, including all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the Nominating Stockholder, Stockholder Associated Person or any person acting in concert therewith were therewith, was the “registrant” for purposes of such rule and the Stockholder Nominee were was a director or executive of such registrant;
(v) Stockholder Information with respect to any stock and all of the agreements, contracts, understandings, arrangements, proxies or other interests relationships referred to in the foregoing subclauses (iii) and (iv), a representation that such Nominating Stockholder will notify the Corporation in writing of any such agreement, contract, understanding, arrangement, proxy or other relationship that are or will be in effect as of the Corporation held by members date of such annual meeting no later than five business days before the Nominating Stockholder’s or its Stockholder Associated Person’s immediate family sharing the same householddate of such meeting;
(vi) a representation to the Corporation as to whether each such Nominating Stockholder intends (Aa) 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 the nomination or (Bb) otherwise to solicit proxies or votes from Stockholders in support of such nomination;
(vii) all other information that would be required to be filed with the SEC if the Nominating Stockholders and Stockholder Associated Persons Person were participants in a solicitation subject to Section 14 of the Exchange Act; and
(viii) a representation and covenant for the benefit of the Corporation that the Nominating Stockholders shall provide any other information reasonably requested by the Corporation.
(g) The Nominating Stockholders shall also provide any other information reasonably requested by the Corporation of either the Nominating Stockholder or the Stockholder Nominee as the Corporation may reasonably require to determine the eligibility of such Stockholder Nominee to serve as a Director; provided, that such request must be made within five business days of the Corporation’s receipt of the Notice of Nomination.
(H) If the Nominating Stockholder or Stockholder Nominee (as applicable) does not provide the information required by Section 3.4(G)(viii) within ten (10) business days after the Corporation’s request, then such request.
(h) Nominating Stockholder’s proposal shall be disregarded. In addition, the Nominating Stockholders shall further update and supplement the information provided to the Corporation in the Notice of Nomination or upon the Corporation’s request pursuant to Section 3.03(g) as needed, so that such information shall be true and correct as of the record date for the meeting and as of the date that is ten (10) business days before the meeting or any adjournment or postponement thereof. Such update and supplement must be delivered personally or mailed to, and received at, the Office of the Corporation, addressed to the Secretary, by no later than five (5) business days after the record date for the meeting (in the case of the update and supplement required to be made as of the record date), and not later than seven (7) business days before the date for the meeting (in the case of the update and supplement required to be made as of ten (10) business days before the meeting or any adjournment or postponement thereof).
(i) The person presiding over the meeting shall, if the facts warrant, determine and declare to the meeting, meeting that the any proposed nomination of a Stockholder Nominee was not made in accordance with the procedures set forth in this Section 3.03, 3.4 and, if he or she should so determine, he or she shall so declare to the meeting and the defective nomination shall be disregarded.
(jI) If the Stockholder (or a qualified representative of the Stockholder) does not appear at the applicable Stockholder meeting of Stockholders to nominate the Stockholder Nominees, such nomination shall be disregarded and such business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 3.033.4, 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 Stockholder or an electronic transmission delivered by such Stockholder to act for such Stockholder as proxy at the meeting of Stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of Stockholders.
(kJ) Nothing in this Section 3.03 3.4 shall be deemed to affect any rights of the holders of any series of preferred stock of the Corporation pursuant to any applicable provision of the Certificate of IncorporationIncorporation or any rights of a stockholder in any agreement with the Corporation.
Appears in 1 contract
Samples: Merger Agreement (HRG Group, Inc.)
Nominations of Directors. (a) Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement and except as otherwise provided by the Stockholders Agreement (as long as such agreement is in effect), only persons who are nominated in accordance with the procedures set forth in this Section 3.03 are eligible for election as Directors.
(b1) Nominations of persons for election to the Board of Directors at an annual meeting or special meeting (but only if the Board of Directors has first determined that directors are to be elected at such special meeting) may only be made at a such meeting properly called for the election of Directors and only (i) by or at the direction of the Board of Directors (or any a duly authorized committee thereof thereof), or (ii) by a Stockholder who any shareholder who: (A) was a Stockholder shareholder of record of the Corporation when the notice required by this Section 3.03 is delivered to the Secretary and at the time of giving the notice provided for in this Section 13(b) and on the record for determination of shareholders entitled to vote at the meeting, ; (B) is entitled to vote for the election of Directors at the meeting meeting; and (C) complies complied with the notice and other provisions of procedures set forth in this Section 3.0313(b) as to such nomination. Subject to Section 3.03(k13(b)(1)(ii) and obtaining any required stockholder votes or consents under the Stockholders Agreement (as long as such agreement is in effect), Section 3.03(b)(ii) is of these By-laws shall be the exclusive means by which for a Stockholder may nominate shareholder to propose any nomination of a person for election to the Board. Persons nominated in accordance with Section 3.03(b)(ii) are referred to as “Stockholder Nominees.” A Stockholder nominating or persons for election to the Board is referred of Directors to as the “Nominating Stockholder.”
(c) Subject to Section 3.03(k) and obtaining any required stockholder votes or consents under the Stockholders Agreement and except as otherwise provided be considered by the Stockholders Agreement (as long as such agreement is in effect), all nominations of Stockholder Nominees must be made by timely written notice given by or on behalf of a Stockholder of record of the Corporation (the “Notice of Nomination”). To be timely, the Notice of Nomination must be delivered personally or mailed to and received at the Office of the Corporation, addressed to the attention of the Secretary, by the following dates:
(i) in the case of the nomination of a Stockholder Nominee for election to the Board shareholders at an annual meeting of Stockholders, no earlier than one hundred and twenty (120) days and no later than ninety (90) days before the first anniversary of the date of the prior year’s annual meeting of Stockholders; provided, however, that if (A) the annual meeting of Stockholders is advanced by more than thirty (30) days, or delayed by more than sixty (60) days, from the first anniversary of the prior year’s annual meeting of Stockholders or (B) no annual meeting was held during the prior year, the notice by the Stockholder to be timely must be received (1) no earlier than one hundred and twenty (120) days before such annual meeting and special meeting.
(2) no later than the later of ninety (90) days before such Without qualification, for nominations to be made at an annual meeting by a shareholder, the shareholder must (i) provide Timely Notice (as defined in Section 13(d)) in writing and in proper form to the tenth day after the day on which the notice of such annual meeting was made by mail or Public Disclosure; provided, further, that, solely for the purposes Secretary of the notice requirements under this Section 2.02(c), with respect to the annual meeting of stockholders of the Corporation for 2019, the date of the preceding year’s annual meeting of stockholders shall be deemed to be May 1, 2018; and
Company and (ii) provide any updates or supplements to such notice at the times and in the case of the nomination of a Stockholder Nominee for election to forms required by this Section 13(b). Without qualification, if the Board of Directors has first determined that directors are to be elected at a special meeting, then for nominations to be made at a special meeting by a shareholder, the shareholder must (i) provide notice thereof in writing and in proper form to the Secretary of Stockholders, no the Company at the principal executive offices of the Company not earlier than the one hundred and twenty twentieth (120120th) days before and no later than the later of ninety (90) days before day prior to such special meeting and not later than the tenth ninetieth (90th) day after the day on which the notice of prior to such special meeting was made by mail or Public Disclosure.
(d) Notwithstanding anything to the contraryor, if the number of Directors to be elected to the Board at a meeting of Stockholders is increased and there is no Public Disclosure by the Corporation naming the nominees for the additional directorships at least one hundred (100) days before the first anniversary of the preceding year’s annual meetinglater, a Notice of Nomination shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered personally and received at the Office of the Corporation, addressed to the attention of the Secretary, no later than the close of business on the tenth (10th) day following the day on which the date of such Public Disclosure is special meeting was first made Publicly Disclosed and (ii) provide any updates or supplements to such notice at the times and in the forms required by the Corporation.
(e) this Section 13(b). In no event shall an adjournment, any adjournment or postponement or deferral, or Public Disclosure of an adjournment, postponement or deferral, of an annual meeting or special meeting meeting, or the announcement thereof, commence a new time period (or extend any time period) for the giving of the Notice of Nominationa shareholder notice as described above.
(f3) The Notice To be in proper form for purposes of Nomination shall this Section 13(b), a shareholder’s notice to the Secretary pursuant to this Section 13(b) must set forth:
(i) (A) the Stockholder Information with respect to each Nominating Stockholder name and Stockholder Associated Person;
(ii) a representation to address of Proposing Person providing the Corporation that each Nominating Stockholder is a holder of record of stock notice, as they appear on the Company’s books, and of the Corporation entitled to vote at other Proposing Persons, (B) any Material Ownership Interests (as defined in Section 13(d)) of each Proposing Person, as well as the meeting and intends to appear information set forth in person or by proxy at the meeting to propose such nomination;
Section 13(a)(3)(ii), clause (iiiF) all information regarding each Stockholder Nominee Proposing Person and Stockholder Associated (C) any other information relating to such Proposing Person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitation of proxies subject for the election of directors in a contested election pursuant to Section 14 of the Exchange Act; and
(ii) as to each person whom the shareholder proposes to nominate for election as a director, (A) all information with respect to such proposed nominee that would be required to be set forth in a shareholder’s notice pursuant to this Section 13(b) if such proposed nominee were a Proposing Person; (B) all information relating to such proposed nominee that is required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election pursuant to Section 14 of the Exchange Act (including such proposed nominee’s written consent of each Stockholder Nominee to being named in a the proxy statement as a nominee nominee, if applicable, and to serve serving as a director if elected and a completed signed questionnaireelected), representation and agreement required by Section 3.04;
(ivC) 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 a Nominating Stockholderany Proposing Person, Stockholder Associated Person on the one hand, and each proposed nominee, and his or their her respective affiliates and associates, or others acting and any other persons Acting in concert therewithConcert with such nominee, including affiliates, associates and other person, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule Item 404 promulgated under Regulation S-K if the Nominating Stockholder, Stockholder Associated Proposing Person or any person acting in concert therewith were the “registrant” for purposes of such rule and the Stockholder Nominee proposed nominee were a director or executive officer of such registrant;
(v) Stockholder Information with respect to , and a representation that each Proposing Person will notify the Company in writing of any stock such relationships, arrangements, agreements or other interests understandings as of the Corporation held by members record date for the meeting, promptly following the later of such record date or the Nominating Stockholder’s or its Stockholder Associated Person’s immediate family sharing date the same household;
notice of such record date is first Publicly Disclosed; and (viD) a representation to the Corporation as to whether each Nominating Stockholder intends (A) to deliver a proxy statement completed and form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve the nomination or (B) otherwise to solicit proxies from Stockholders in support of such nomination;
(vii) all other information that would be required to be filed with the SEC if the Nominating Stockholders and Stockholder Associated Persons were participants in a solicitation subject to Section 14 of the Exchange Act; and
(viii) a signed questionnaire, representation and covenant for the benefit of the Corporation that the Nominating Stockholders shall provide any other information reasonably requested by the Corporationagreement as provided in Section 13(b)(7).
(g4) The Nominating Stockholders shall also provide Company may require any proposed nominee to furnish such other information as may reasonably requested be required by the Corporation within ten (10) business days after Company to determine the eligibility of such requestproposed nominee to serve as an independent director of the Company or that could be material to a reasonable shareholder’s understanding of the independence or lack of independence of such nominee.
(h5) In addition, the Nominating Stockholders A shareholder providing notice of any nomination proposed to be made at a meeting shall further update and supplement such notice, if necessary, so that the information provided or required to the Corporation be provided in the Notice of Nomination or upon the Corporation’s request such notice pursuant to this Section 3.03(g13(b) as needed, so that such information shall be true and correct as of the record date for the meeting and as of the date that is ten (10) business days before of the meeting or any adjournment or postponement thereof. Such , as the case may be, and such update and supplement must shall be delivered personally to or mailed to, and received at, by the Office Secretary at the principal executive offices of the Corporation, addressed to the Secretary, by no Company not later than five (5) business days after the later of the record date for the meeting or the date notice of such record date is first Publicly Disclosed (in the case of the update and supplement required to be made as of the record date), and not later than seven (7) business days before the date for the meeting (as promptly as practicable in the case of the any update and or supplement required to be made as of ten (10) business days before after the meeting or any adjournment or postponement thereof)record date.
(6) Notwithstanding anything in the Timely Notice requirement in the first sentence of Section 13(b)(2) to the contrary, in the event that the number of directors to be elected to the Board of Directors is increased and there is no public announcement by the Company naming all of the nominees for director or specifying the size of the increased Board of Directors at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting of shareholders, a shareholder’s notice required by this Section 13(b) shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to or mailed and received by the Secretary at the principal executive offices of the Company not later than the close of business on the tenth (10th) day following the day on which such nominees or increased size was first Publicly Disclosed by the Company.
(7) To be eligible to be a shareholder proposed nominee for election as a director of the Company, a person must deliver (in accordance with the time periods prescribed by delivery of notice under this Section 13(b) to the Secretary at the principal executive offices of the Company a written questionnaire with respect to the background and qualification of such person and the background of any other person or entity 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 form provided by the Secretary upon written request) that such person (i) The is not and will not become a party to (A) any Voting Commitment (as defined in Section 13(d) that has not been disclosed to the Company or (B) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the Company, with such person’s fiduciary duties under applicable law, (ii) is not, and will not become a party to, any agreement, arrangement or understanding with any person presiding over or entity other than the Company 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 therein, and (iii) in such person’s individual capacity, if elected as a director of the Company, will comply with applicable Publicly Disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Company.
(8) In addition to the foregoing provisions of this Section 13(b), each Proposing Person shall also comply with all applicable requirements of the Exchange Act with respect to the matters set forth in this Section 13.
(9) Only such persons who are nominated in accordance with the procedures set forth in this Section 13(b) shall be eligible to serve as directors. Except as otherwise provided by law, the Articles of Incorporation or these By-laws, the chairman of the meeting shall, if shall have the facts warrant, power and duty to determine and declare to the meeting, that the whether a nomination was not made in accordance with the procedures set forth in this Section 3.03, 13(b) and, if he or she should so determineany proposed nomination is not in compliance with this Section 13(b), he or she shall so to declare to the meeting and the that such defective nomination shall be disregarded.
(j) If the Stockholder (or a qualified representative of the Stockholder) does not appear at the applicable Stockholder meeting to nominate the Stockholder Nominees, such nomination shall be disregarded and such business shall not be transacted, notwithstanding that proxies in respect of such vote nomination may have been received by the Corporation. For purposes of this Section 3.03, 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 Stockholder or an electronic transmission delivered by such Stockholder to act for such Stockholder as proxy at the meeting of Stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of StockholdersCompany.
(k) Nothing in this Section 3.03 shall be deemed to affect any rights of the holders of any series of preferred stock of the Corporation pursuant to any applicable provision of the Certificate of Incorporation.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Great Plains Energy Inc)
