Notice of Member Business and Nominations. (a) Subject to Section 7.1(d) of this Agreement, nominations of Persons for election to the Board of Directors of the Company and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s notice of meeting delivered pursuant to Section 11.4 of this Agreement, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (iv) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. (b) For nominations to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iii), the Unitholder must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first anniversary (the “Anniversary”) of the date on which the Company first mailed its proxy materials for the preceding year’s annual meeting of Members; provided, however, that if the date of the annual meeting is advanced more than 30 days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iv), (i) the Unitholder must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the Unitholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such Unitholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding Units required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding Units reasonably believed by such Unitholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the Unitholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such Unitholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner, and whether either such Unitholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s Outstanding Units required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding Units to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”). (d) Notwithstanding anything in the second sentence of Section 11.13(b) or the second sentence of Section 11.13(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the Anniversary, then a Unitholder’s notice required by this Section 11.13 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 the Secretary at the principal executive offices of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section 11.4 of this Agreement. Subject to Section 7.1(d) of this Agreement, nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (iii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. Nominations by Unitholders of Persons for election to the Board of Directors may be made at such a special meeting of Members if the Unitholder’s notice as required by Section 11.13(b) or Section 11.13(c) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section 11.13(d)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meeting. (f) Except to the extent otherwise provided in Section 7.1(d) with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section 11.13 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 5 contracts

Samples: Limited Liability Company Agreement (Linn Energy, LLC), Limited Liability Company Agreement (Linn Energy, LLC), Limited Liability Company Agreement (Linn Energy, LLC)

Notice of Member Business and Nominations. Notice of member business and nominations shall be conducted in accordance with the following: (a) ~~Subject~~ Prior to the occurrence of a Cheniere Separation Event, proposals of business to be considered by the Members at a meeting of Members may only be made by or at the direction of the Board of Directors. (b) On or after the occurrence of a Cheniere Separation Event and subject to Section 7.1(d~~) of this Agreement~~), nominations of Persons for election to the Board of Directors ~~of the Company~~ and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s notice of meeting delivered pursuant to Section ~~11.4 of this Agreement~~11.4, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding ~~Units~~ Common Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding ~~Units~~ Common Shares as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding ~~Units~~Common Shares, or (iv) by any holder of Outstanding ~~Units~~ Common Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section 11.13 and who is a Record Holder of Outstanding ~~Units~~ Common Shares at the time such notice is delivered to the Secretary of the Company.; (bc) For nominations to be properly brought before an annual meeting by a ~~Unitholder~~ Shareholder pursuant to Section ~~11.13(a)(iii~~11.13(b)(iii), the ~~Unitholder~~ Shareholder must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a ~~Unitholder~~Shareholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first anniversary (the “Anniversary”) of the date on which the Company first mailed its proxy materials for the preceding year’s annual meeting of Members; provided, however, that if the date of the annual meeting is advanced more than 30 days prior to or delayed by more than ~~thirty (30)~~ 30 days after the anniversary of the preceding year’s annual meeting, notice by the ~~Unitholder~~ Shareholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such ~~Unitholder~~Shareholder’s notice shall set forth: (A) as to each Person whom the ~~Unitholder~~ Shareholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the ~~Unitholder~~ Shareholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such ~~Unitholder~~Shareholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of ~~Units~~ Common Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Shareholder and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates.; (cd) For nominations or other business to be properly brought before an annual meeting by a ~~Unitholder~~ Shareholder pursuant to Section ~~11.13(a)(iv~~11.13(b)(iv), (i) the ~~Unitholder~~ Shareholder must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the ~~Unitholder~~Shareholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such ~~Unitholder~~ Shareholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding ~~Units~~ Common Shares required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding ~~Units~~ Common Shares reasonably believed by such ~~Unitholder~~ Shareholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such ~~Unitholder~~Shareholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the ~~Unitholder~~ Shareholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a ~~Unitholder~~Shareholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than ~~thirty (30)~~ 30 days prior to or delayed by more than ~~thirty (30)~~ 30 days after the anniversary of the preceding year’s annual meeting, notice by the ~~Unitholder~~ Shareholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such ~~Unitholder~~Shareholder’s notice shall set forth: (A) as to each Person whom the ~~Unitholder~~ Shareholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the ~~Unitholder~~ Shareholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such ~~Unitholder~~ Shareholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the ~~Unitholder~~ Shareholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such ~~Unitholder~~Shareholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of ~~Units~~ Common Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Shareholder and such beneficial owner, and whether either such ~~Unitholder~~ Shareholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s Outstanding ~~Units~~ Common Shares required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding ~~Units~~ Common Shares to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”).; (de) Notwithstanding anything in the second sentence of Section ~~11.13(b~~11.13(c) or the second sentence of Section ~~11.13(c~~11.13(d) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the Anniversary, then a ~~Unitholder~~Shareholder’s notice required by this Section 11.13 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 the Secretary at the principal executive offices of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company.; (ef) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section ~~11.4 of this Agreement~~11.4. Subject to Section 7.1(d~~) of this Agreement~~), nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding ~~Units~~ Common Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding ~~Units~~ Common Shares as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding ~~Units~~Common Shares, or (iii) by any holder of Outstanding ~~Units~~ Common Shares who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding ~~Units~~ Common Shares at the time such notice is delivered to the Secretary of the Company. Nominations by ~~Unitholders~~ Shareholders of Persons for election to the Board of Directors may be made at such a special meeting of Members if the ~~Unitholder~~Shareholder’s notice as required by Section ~~11.13(b~~11.13(c) or Section ~~11.13(c~~11.13(d) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding ~~Units~~ Common Shares making nominations pursuant to Section ~~11.13(d)(ii~~11.13(e)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section ~~11.13(b~~11.13(c) for an annual meeting.; (fg) Except to the extent otherwise provided in Section 7.1(d) with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section 11.13 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded.; and (gh) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 5 contracts

Samples: Limited Liability Company Agreement, Limited Liability Company Agreement (Cheniere Energy Partners LP Holdings, LLC), Limited Liability Company Agreement (Cheniere Energy Partners LP Holdings, LLC)

Notice of Member Business and Nominations. (a) Subject to ~~Section 7.1(d)~~ Article V of this Agreement, nominations of Persons for election to the Board of Directors of the Company and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s notice of meeting delivered pursuant to Section ~~11.4~~ 11.2 of this Agreement, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section ~~11.13~~ and who was a Record Holder of a sufficient number of Outstanding ~~Units~~ Voting Shares as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding ~~Units~~Voting Shares, or (iv) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section ~~11.13~~ and who is a Record Holder of Outstanding ~~Units~~ Voting Shares at the time such notice is delivered to the Secretary of the Company. (b) For nominations to be properly brought before an annual meeting by a ~~Unitholder~~ Member pursuant to Section ~~11.13(a)(iii~~11.11(a)(iii), the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a ~~Unitholder~~Member’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than ~~90 or~~ ninety (90) days nor more than ~~120~~ one hundred twenty (120) days prior to the ~~first~~ anniversary ~~(the “Anniversary”)~~ of the date on which the Company first ~~mailed~~ made publicly available (whether by mailing, by filing with the Commission or by posting on an internet web site) its proxy materials for the immediately preceding ~~year’s~~ annual meeting of Members; provided, however, ~~that~~ that, in the case of the Company’s first annual meeting, or if ~~the date of~~ the annual meeting is ~~advanced~~ called for a date that is more than ~~30 days prior to or delayed by more than thirty~~ twenty-five (3025) days before or after the anniversary of the ~~preceding~~ previous year’s annual meeting, notice by the ~~Unitholder~~ Member in order to be timely must be so ~~delivered~~ received not later than the close of business on the ~~later of~~ tenth (x10th) ~~the ninetieth day prior to such annual meeting or (y) the tenth~~ day following the day on which public ~~announcement~~ disclosure of the date of ~~such~~ the annual meeting is first ~~made~~made (which may be the date on which proxy materials for such meeting are first mailed). In no event shall the public announcement or postponement of an annual meeting commence a new time period for the giving of a Member’s notice as described in this Section 11.11(b). Such ~~Unitholder~~Member’s notice shall set forth: (A) as to each Person whom the ~~Unitholder~~ Member proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each ~~case~~ case, pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the ~~Unitholder~~ Member giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such ~~Unitholder~~Member, as they appear on the Company’s books, and of such beneficial owner, the class or series and number of ~~Units~~ Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Member and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a ~~Unitholder~~ Member pursuant to Section ~~11.13(a)(iv~~11.11(a)(iv), (i) the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the ~~Unitholder~~Member, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such ~~Unitholder~~ Member or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding ~~Units~~ Shares required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding ~~Units~~ Voting Shares reasonably believed by such ~~Unitholder~~ Member or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such ~~Unitholder~~Member, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section ~~11.13~~11.11, the ~~Unitholder~~ Member or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a ~~Unitholder~~Member’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than ~~90 or~~ ninety (90) days nor more than ~~120~~ one hundred twenty (120) days prior to the anniversary of the date on which the Company first ~~Anniversary~~made publicly available (whether by mailing, by filing with the Commission or by posting on an internet web site) its proxy materials for the immediately preceding annual meeting of Members; provided, however, ~~that~~ that, in the ~~event that~~ case of the ~~date of~~ Company’s first annual meeting, or if the annual meeting is ~~advanced~~ called for a date that is more than ~~thirty~~ twenty-five (3025) days ~~prior to~~ before or ~~delayed by more than thirty (30) days~~ after the anniversary of the ~~preceding~~ previous year’s annual meeting, notice by the ~~Unitholder~~ Member in order to be timely must be so ~~delivered~~ received not later than the close of business on the ~~later of~~ tenth (x10th) ~~the ninetieth day prior to such annual meeting or (y) the tenth~~ day following the day on which public ~~announcement~~ disclosure of the date of ~~such~~ the annual meeting is first ~~made~~made (which may be the date on which proxy materials for such meeting are first made publicly available, whether by mailing, by filing with the Commission or by posting on an internet web site). In no event shall the public announcement or postponement of an annual meeting commence a new time period for the giving of a Member’s notice as described in this Section 11.11(c). Such ~~Unitholder~~Member’s notice shall set forth: (A) as to each Person whom the ~~Unitholder~~ Member proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the ~~Unitholder~~ Member proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such ~~Unitholder~~ Member and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the ~~Unitholder~~ Member giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such ~~Unitholder~~Member, as they appear on the Company’s books, and of such beneficial owner, the class or series and number of ~~Units~~ Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Member and such beneficial owner, and whether either such ~~Unitholder~~ Member or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s Outstanding ~~Units~~ Voting Shares required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding ~~Units~~ Shares to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”). (d) Notwithstanding anything in the second sentence of Section ~~11.13(b~~11.11(b) or the ~~second~~ first sentence of Section ~~11.13(c~~11.11(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the ~~Anniversary~~anniversary of the date on which the Company first made publicly available (whether by mailing, by filing with the Commission or by posting on an internet web site) its proxy materials for the immediately preceding annual meeting of Members, then a ~~Unitholder~~Member’s notice required by this Section ~~11.13~~ 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 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 public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section ~~11.4~~ 11.2 of this Agreement. Subject to Section ~~7.1(d)~~ 5.6 of this Agreement, nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section ~~11.13~~ 11.11 and who was a Record Holder of a sufficient number of Outstanding ~~Units~~ Voting Shares as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding ~~Units~~Voting Shares, or (iii) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complies with the notice procedures set forth in paragraph (c) or (d) this Section ~~11.13~~ and who is a Record Holder of Outstanding ~~Units~~ Voting Shares at the time such notice is delivered to the Secretary of the Company. Nominations by ~~Unitholders~~ Members of Persons for election to the Board of Directors may be made at such a special meeting of Members if the ~~Unitholder~~Member’s notice as required by Section ~~11.13(b~~11.11(b) or Section ~~11.13(c~~11.11(c) shall be delivered to the Secretary of the Company not earlier than the ~~ninetieth~~ 90th day prior to such special meeting and not later than the close of business on the later of the ~~seventieth~~ 70th day prior to such special meeting or the ~~tenth~~ 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding ~~Units~~ Voting Shares making nominations pursuant to Section ~~11.13(d)(ii~~11.11(e)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section ~~11.13(b~~11.11(b) for an annual meeting. (f) Except to the extent otherwise provided in ~~Section 7.1(d)~~ Article V with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section ~~11.13~~ shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this ~~Section 11.13~~Section. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section ~~11.13~~ and, if any proposed nomination or business is not in compliance with this ~~Section 11.13~~Section, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this ~~Section 11.13~~Section, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this ~~Section 11.13~~Section. Nothing in this Section ~~11.13~~ shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Fortress Investment Group LLC), Limited Liability Company Agreement (Fortress Investment Group LLC)

Notice of Member Business and Nominations. (a) Subject to Section 7.1(d) of this Agreement, nominations of Persons for election to the Board of Directors of the Company and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s 's notice of meeting delivered pursuant to Section 11.4 of this Agreement, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election pursuant to Section 11.8(d) in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units (or, in the case where such holder holds a sufficient number of Outstanding Units to elect more than one Director, such holder votes its Units as efficiently as possible for such candidates and such candidates receive no further votes from holders of Outstanding Units), or (iv) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. (b) For nominations to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iii), the Unitholder must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a Unitholder’s 's notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first anniversary (the “"Anniversary”") of the date on which the Company first mailed its proxy materials for the preceding year’s 's annual meeting of Members; provided, however, that if the date of the annual meeting is advanced more than 30 days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s 's annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s 's notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s 's written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s 's books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iv), (i) the Unitholder must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the Unitholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such Unitholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s 's Outstanding Units required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s 's Outstanding Units reasonably believed by such Unitholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s 's notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s 's annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s 's notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s 's written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the Unitholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such Unitholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s 's books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner, and whether either such Unitholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s 's Outstanding Units required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s 's Outstanding Units to elect such nominee or nominees (an affirmative statement of such intent, a “"Solicitation Notice”"). (d) Notwithstanding anything in the second sentence of Section 11.13(b) or the second sentence of Section 11.13(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the Anniversary, then a Unitholder’s 's notice required by this Section 11.13 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 the Secretary at the principal executive offices of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s 's notice of meeting pursuant to Section 11.4 of this Agreement. Subject to Section 7.1(d) of this Agreement, nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s 's notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election pursuant to Section 11.8(d) in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units (or, in the case where such holder holds a sufficient number of Outstanding Units to elect more than one Director, such holder votes its shares as efficiently as possible for such candidates and such candidates receive no further votes from holders of Outstanding Units), or (iii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. Nominations by Unitholders of Persons for election to the Board of Directors may be made at such a special meeting of Members if the Unitholder’s 's notice as required by Section 11.13(b) or Section 11.13(c) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section 11.13(d)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meeting. (f) Except to the extent otherwise provided in Section 7.1(d) with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section 11.13 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Copano Energy, L.L.C.), Limited Liability Company Agreement (Copano Energy, L.L.C.)

Notice of Member Business and Nominations. (a) Subject to ~~Section 7.1(d)~~ Article V of this Agreement, nominations of Persons for election to the Board of Directors of the Company and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s notice of meeting delivered pursuant to Section ~~11.4~~ 11.2 of this Agreement, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section ~~11.13~~ and who was a Record Holder of a sufficient number of Outstanding ~~Units~~ Voting Shares as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding ~~Units~~Voting Shares, or (iv) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section ~~11.13~~ and who is a Record Holder of Outstanding ~~Units~~ Voting Shares at the time such notice is delivered to the Secretary of the Company. (b) For nominations to be properly brought before an annual meeting by a ~~Unitholder~~ Member pursuant to Section ~~11.13(a)(iii~~11.11(a)(iii), the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a ~~Unitholder~~Member’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than ~~90 or~~ ninety (90) days nor more than ~~120~~ one hundred twenty (120) days prior to the ~~first~~ anniversary ~~(the “Anniversary”)~~ of the date ~~on which~~ of the ~~Company first mailed its proxy materials for the~~ immediately preceding ~~year’s annual meeting~~ Annual Meeting of Members; provided, however, ~~that~~ that, in the case of the Company’s first annual meeting, or if ~~the date of~~ the annual meeting is ~~advanced~~ called for a date that is more than ~~30 days prior to or delayed by more than thirty~~ twenty-five (3025) days before or after the anniversary of the ~~preceding~~ previous year’s annual meeting, notice by the ~~Unitholder~~ Member in order to be timely must be so ~~delivered~~ received not later than the close of business on the ~~later~~ tenth (10th) day following the earlier of ~~(x)~~ the ~~ninetieth day prior to such~~ date on which notice of the annual meeting was posted to the Members or ~~(y) the tenth day following~~ the day on which public ~~announcement~~ disclosure of the date of ~~such~~ the annual meeting is first ~~made~~made (which may be the date on which proxy materials for such meeting are first mailed). In no event shall the adjournment or postponement of an annual meeting, or the public announcement of such an adjournment or postponement, commence a new time period (or extend any time period) for the giving of a Member’s notice as described in this Section 11.11(b). Such ~~Unitholder~~Member’s notice shall set forth: (A) as to each Person whom the ~~Unitholder~~ Member proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each ~~case~~ case, pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the ~~Unitholder~~ Member giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such ~~Unitholder~~Member, as they appear on the Company’s books, and of such beneficial owner, the class or series and number of ~~Units~~ Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Member and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a ~~Unitholder~~ Member pursuant to Section ~~11.13(a)(iv~~11.11(a)(iv), (i) the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the ~~Unitholder~~Member, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such ~~Unitholder~~ Member or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding ~~Units~~ Shares required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding ~~Units~~ Voting Shares reasonably believed by such ~~Unitholder~~ Member or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such ~~Unitholder~~Member, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section ~~11.13~~11.11, the ~~Unitholder~~ Member or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a ~~Unitholder~~Member’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than ~~90 or~~ ninety (90) days nor more than ~~120~~ one hundred twenty (120) days prior to the anniversary of the date on which the Company first ~~Anniversary~~made publicly available (whether by mailing, by filing with the Commission or by posting on an internet web site) its proxy materials for the immediately preceding annual meeting of Members; provided, however, ~~that~~ that, in the ~~event that~~ case of the ~~date of~~ Company’s first annual meeting, or if the annual meeting is ~~advanced~~ called for a date that is more than thirty (30) days ~~prior to~~ before or ~~delayed by more than thirty (30) days~~ after the anniversary of the ~~preceding~~ previous year’s annual meeting, notice by the ~~Unitholder~~ Member in order to be timely must be so ~~delivered~~ received not later than the close of business on the ~~later~~ tenth (10th) day following the earlier of ~~(x)~~ the ~~ninetieth day prior to such~~ date on which notice of the annual meeting was posted to the Members or ~~(y) the tenth day following~~ the day on which public ~~announcement~~ disclosure of the date of ~~such~~ the annual meeting is first ~~made~~made (which may be the date on which proxy materials for such meeting are first made publicly available, whether by mailing, by filing with the Commission or by posting on an internet web site). In no event shall the public announcement or postponement of an annual meeting commence a new time period for the giving of a Member’s notice as described in this Section 11.11(c). Such ~~Unitholder~~Member’s notice shall set forth: (A) as to each Person whom the ~~Unitholder~~ Member proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the ~~Unitholder~~ Member proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such ~~Unitholder~~ Member and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the ~~Unitholder~~ Member giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such ~~Unitholder~~Member, as they appear on the Company’s books, and of such beneficial owner, the class or series and number of ~~Units~~ Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Member and such beneficial owner, and whether either such ~~Unitholder~~ Member or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s Outstanding ~~Units~~ Voting Shares required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding ~~Units~~ Shares to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”). This Section shall be the exclusive means for a Member to make business proposals before a special meeting of Members (other than matters properly bought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and included in the Company’s notice of meeting). Subject to Rule 14a-8 under the Exchange Act, nothing in this Agreement shall be construed to permit any Member, or give any Member the right, to include or have disseminated or described in the Company’s proxy statement any business proposal. (d) Notwithstanding anything in the second sentence of Section ~~11.13(b~~11.11(b) or the ~~second~~ first sentence of Section ~~11.13(c~~11.11(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the ~~Anniversary~~anniversary of the date on which the Company first made publicly available (whether by mailing, by filing with the Commission or by posting on an internet web site) its proxy materials for the immediately preceding annual meeting of Members, then a ~~Unitholder~~Member’s notice required by this Section ~~11.13~~ 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 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 public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section ~~11.4~~ 11.2 of this Agreement. Subject to Section ~~7.1(d)~~ 5.6 of this Agreement, nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section ~~11.13~~ 11.11 and who was a Record Holder of a sufficient number of Outstanding ~~Units~~ Voting Shares as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding ~~Units~~Voting Shares, or (iii) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complies with the notice procedures set forth in paragraph (c) or (d) of this Section ~~11.13~~ and who is a Record Holder of Outstanding ~~Units~~ Voting Shares at the time such notice is delivered to the Secretary of the Company. Nominations by ~~Unitholders~~ Members of Persons for election to the Board of Directors may be made at such a special meeting of Members if the ~~Unitholder~~Member’s notice as required by Section ~~11.13(b~~11.11(b) or Section ~~11.13(c~~11.11(c) shall be delivered to the Secretary of the Company not earlier than the ~~ninetieth~~ 90th day prior to such special meeting and not later than the close of business on the later of the ~~seventieth~~ 70th day prior to such special meeting or the ~~tenth~~ 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding ~~Units~~ Voting Shares making nominations pursuant to Section ~~11.13(d)(ii~~11.11(e)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section ~~11.13(b~~11.11(b) for an annual meeting. (f) Except to the extent otherwise provided in ~~Section 7.1(d)~~ Article V with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section ~~11.13~~ shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this ~~Section 11.13~~Section. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section ~~11.13~~ and, if any proposed nomination or business is not in compliance with this ~~Section 11.13~~Section, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this ~~Section 11.13~~Section, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this ~~Section 11.13~~Section. Nothing in this Section ~~11.13~~ shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Fortress Transportation & Infrastructure Investors LLC), Limited Liability Company Agreement (Fortress Transportation & Infrastructure Investors LLC)

Notice of Member Business and Nominations. (a) Subject to Section ~~7.1(d) of this Agreement~~7.1(e), nominations of Persons for election to the Board of ~~Directors of the Company~~ Managers and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s notice of meeting delivered pursuant to Section 11.4 of this Agreement, (ii) by or at the direction of the Board of ~~Directors~~Managers, (iii) for nominations to the Board of ~~Directors~~ Managers only, by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of ~~Directors~~ Managers assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (iv) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. (b) For nominations to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iii), the Unitholder must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the ~~first~~ anniversary (the “Anniversary”) of the date on which the Company first mailed its proxy materials for the preceding year’s annual meeting of Members; provided, however, that if the date of the annual meeting is advanced more than 30 days prior to or delayed by more than ~~thirty (30)~~ 30 days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a ~~Director~~ Manager all information relating to such Person that is required to be disclosed in solicitations of proxies for election of ~~Directors~~Managers, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a ~~Director~~ Manager if elected and (B) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination ~~or proposal~~ is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of Units ~~of the Company~~ which are owned beneficially and of record by such Unitholder and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of ~~Directors~~ Managers as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section ~~11.13(a)(iv~~11.13(a), (i) the Unitholder must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the Unitholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such Unitholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the ~~Company’s~~ Outstanding Units required under this Agreement or the Delaware ~~law~~ Act to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the ~~Company’s~~ Outstanding Units reasonably believed by such Unitholder or beneficial ~~holder~~ owner to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than ~~thirty (30)~~ 30 days prior to or delayed by more than ~~thirty (30)~~ 30 days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a ~~Director~~ Manager all information relating to such Person that is required to be disclosed in solicitations of proxies for election of ~~Directors~~Managers, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a ~~Director~~ Manager if elected; (B) as to any other business that the Unitholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such Unitholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of Units ~~of the Company~~ which are owned beneficially and of record by such Unitholder and such beneficial owner, and whether either such Unitholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the ~~Company’s~~ Outstanding Units required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, ~~a sufficient number of~~ to holders of a percentage of the ~~Company’s~~ Outstanding Units reasonably believed by such Unitholder or beneficial owner to be sufficient to elect ~~such~~ the nominee or nominees proposed to be nominated by such Unitholder (an affirmative statement of such intent, a “Solicitation Notice”). (d) Notwithstanding anything in the second sentence of Section 11.13(b) or the second sentence of Section 11.13(c) to the contrary, if the number of ~~Directors~~ Managers to be elected to the Board of ~~Directors~~ Managers is ~~increased and~~ increased, there is no public announcement naming all of the nominees for ~~Director~~ Manager or specifying the size of the increased Board of ~~Directors~~ Managers made by the Company at least 90 days prior to the ~~Anniversary~~Anniversary and the vacancy created by such increase can be filled by a nominee approved by a Common Unit Majority, then a Unitholder’s notice required by this Section 11.13 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 the Secretary at the principal executive offices of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section 11.4 of this Agreement. Subject to Section 7.1(d) of this Agreement, nominations of Persons for election to the Board of ~~Directors~~ Managers may be made at a special meeting of Members at which ~~Directors~~ Managers are to be elected (i) pursuant to the Company’s notice of ~~meeting~~ meeting, (iii) by or at the direction of the Board of ~~Directors~~Managers, (iiiii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of ~~Directors~~ Managers assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (~~iii~~iv) by any holder of Outstanding Units who is entitled to vote at the meeting, who complies with the notice procedures set forth in paragraphs (c) or (d) of this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. Nominations by Unitholders of Persons for election to the Board of ~~Directors~~ Managers may be made at such a special meeting of Members if the Unitholder’s notice as required by Section 11.13(b) or Section 11.13(c) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of ~~Directors~~ Managers to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section ~~11.13(d)(ii~~11.13(e)(iii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meeting. (f) Except to the extent otherwise provided in Section 7.1(d) and Section 7.1(e), with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section 11.13 shall be eligible to serve as ~~Directors~~ Managers and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the Chairman of the Board or other Person designated by the Board of Managers as the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act. (h) All provisions of this Section 11.13 are subject to Section 11.8(d).

Appears in 2 contracts

Samples: Operating Agreement, Operating Agreement (Constellation Energy Partners LLC)

Notice of Member Business and Nominations. (a) Subject to ~~Section 7.1(d)~~ Article V of this Agreement, nominations of Persons for election to the Board of Directors ~~of the Company~~ and the proposal of business to be considered by the Members may be made at an annual meeting of Common Members (i) pursuant to the Company’s notice of meeting delivered pursuant to Section ~~11.4~~ 11.2 of this Agreement, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section ~~11.13~~ and who was a Record Holder of a sufficient number of Outstanding ~~Units~~ Voting Shares as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding ~~Units~~Voting Shares, or (iv) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section ~~11.13~~ and who is a Record Holder of Outstanding ~~Units~~ Voting Shares at the time such notice is delivered to the Secretary of the Company. (b) For nominations to be properly brought before an annual meeting by a ~~Unitholder~~ Member pursuant to Section ~~11.13(a)(iii~~11.11(a)(iii), the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a ~~Unitholder~~Member’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than ~~90 or~~ ninety (90) days nor more than ~~120~~ one hundred twenty (120) days prior to the ~~first~~ anniversary ~~(the “Anniversary”)~~ of the date ~~on which~~ of the ~~Company first mailed its proxy materials for the~~ immediately preceding ~~year’s~~ annual meeting of Members; provided, however, ~~that~~ that, in the case of the Company’s first annual meeting, or if ~~the date of~~ the annual meeting is ~~advanced~~ called for a date that is more than ~~30 days prior to or delayed by more than thirty~~ twenty-five (3025) days before or after the anniversary of the ~~preceding~~ previous year’s annual meeting, notice by the ~~Unitholder~~ Member in order to be timely must be so ~~delivered~~ received not later than the close of business on the ~~later~~ tenth (10th) day following the earlier of ~~(x)~~ the ~~ninetieth day prior to such~~ date on which notice of the annual meeting was posted to the Members or ~~(y) the tenth day following~~ the day on which public ~~announcement~~ disclosure of the date of ~~such~~ the annual meeting is first ~~made~~made (which may be the date on which proxy materials for such meeting are first mailed). In no event shall the adjournment or postponement of an annual meeting, or the public announcement of such an adjournment or postponement, commence a new time period (or extend any time period) for the giving of a Member’s notice as described in this Section 11.11(b). Such ~~Unitholder~~Member’s notice shall set forth: (A) as to each Person whom the ~~Unitholder~~ Member proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each ~~case~~ case, pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the ~~Unitholder~~ Member giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such ~~Unitholder~~Member, as they appear on the Company’s books, and of such beneficial owner, the class or series and number of ~~Units~~ Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Member and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a ~~Unitholder~~ Member pursuant to Section ~~11.13(a)(iv~~11.11(a)(iv), (i) the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the ~~Unitholder~~Member, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such ~~Unitholder~~ Member or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding ~~Units~~ Shares required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding ~~Units~~ Voting Shares reasonably believed by such ~~Unitholder~~ Member or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such ~~Unitholder~~Member, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section ~~11.13~~11.11, the ~~Unitholder~~ Member or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a ~~Unitholder~~Member’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than ~~90 or~~ ninety (90) days nor more than ~~120~~ one hundred twenty (120) days prior to the anniversary of the date on which the Company first ~~Anniversary~~made publicly available (whether by mailing, by filing with the Commission or by posting on an internet web site) its proxy materials for the immediately preceding annual meeting of Common Members; provided, however, ~~that~~ that, in the ~~event that~~ case of the ~~date of~~ Company’s first annual meeting, or if the annual meeting is ~~advanced~~ called for a date that is more than thirty (30) days ~~prior to~~ before or ~~delayed by more than thirty (30) days~~ after the anniversary of the ~~preceding~~ previous year’s annual meeting, notice by the ~~Unitholder~~ Member in order to be timely must be so ~~delivered~~ received not later than the close of business on the ~~later~~ tenth (10th) day following the earlier of ~~(x)~~ the ~~ninetieth day prior to such~~ date on which notice of the annual meeting was posted to the Members or ~~(y) the tenth day following~~ the day on which public ~~announcement~~ disclosure of the date of ~~such~~ the annual meeting is first ~~made~~made (which may be the date on which proxy materials for such meeting are first made publicly available, whether by mailing, by filing with the Commission or by posting on an internet web site). In no event shall the public announcement or postponement of an annual meeting commence a new time period for the giving of a Member’s notice as described in this Section 11.11(c). Such ~~Unitholder~~Member’s notice shall set forth: (A) as to each Person whom the ~~Unitholder~~ Member proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the ~~Unitholder~~ Member proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such ~~Unitholder~~ Member and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the ~~Unitholder~~ Member giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such ~~Unitholder~~Member, as they appear on the Company’s books, and of such beneficial owner, the class or series and number of ~~Units~~ Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Member and such beneficial owner, and whether either such ~~Unitholder~~ Member or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s Outstanding ~~Units~~ Voting Shares required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding ~~Units~~ Shares to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”). This Section shall be the exclusive means for a Member to make business proposals before a special meeting of Members (other than matters properly bought under Rule 14a-8 under the Exchange Act and included in the Company’s notice of meeting). Subject to Rule 14a-8 under the Exchange Act, nothing in this Agreement shall be construed to permit any Member, or give any Member the right, to include or have disseminated or described in the Company’s proxy statement any business proposal. (d) Notwithstanding anything in the second sentence of Section ~~11.13(b~~11.11(b) or the ~~second~~ first sentence of Section ~~11.13(c~~11.11(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased (except as may be the result of an Issued Preferred Shares Nonpayment Board Expansion) and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the ~~Anniversary~~anniversary of the date on which the Company first made publicly available (whether by mailing, by filing with the Commission or by posting on an internet web site) its proxy materials for the immediately preceding annual meeting of Common Members, then a ~~Unitholder~~Member’s notice required by this Section ~~11.13~~ 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 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 public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section ~~11.4~~ 11.2 of this Agreement. Subject to Section ~~7.1(d)~~ 5.6 of this Agreement, nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section ~~11.13~~ 11.11 and who was a Record Holder of a sufficient number of Outstanding ~~Units~~ Voting Shares as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding ~~Units~~Voting Shares, or (iii) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complies with the notice procedures set forth in paragraph (c) or (d) of this Section ~~11.13~~ and who is a Record Holder of Outstanding ~~Units~~ Voting Shares at the time such notice is delivered to the Secretary of the Company. Nominations by ~~Unitholders~~ Members of Persons for election to the Board of Directors may be made at such a special meeting of Members if the ~~Unitholder~~Member’s notice as required by Section ~~11.13(b~~11.11(b) or Section ~~11.13(c~~11.11(c) shall be delivered to the Secretary of the Company not earlier than the ~~ninetieth~~ 90th day prior to such special meeting and not later than the close of business on the later of the ~~seventieth~~ 70th day prior to such special meeting or the ~~tenth~~ 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding ~~Units~~ Voting Shares making nominations pursuant to Section ~~11.13(d)(ii~~11.11(e)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section ~~11.13(b~~11.11(b) for an annual meeting. (f) Except to the extent otherwise provided in ~~Section 7.1(d)~~ Article V with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section ~~11.13~~ shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this ~~Section 11.13~~Section. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section ~~11.13~~ and, if any proposed nomination or business is not in compliance with this ~~Section 11.13~~Section, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this ~~Section 11.13~~Section, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this ~~Section 11.13~~Section. Nothing in this Section ~~11.13~~ shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act. (h) Notwithstanding anything to the contrary, the provisions of this Article XI shall not entitle the Issued Preferred Holders to any voting, approval or consent rights or, except as otherwise provided by Section 2.7(b)(ii) or 2.7(c) of the applicable Issued Preferred Shares Designation, to participate in any meeting of the Members.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Fortress Transportation & Infrastructure Investors LLC), Limited Liability Company Agreement (Fortress Transportation & Infrastructure Investors LLC)

Notice of Member Business and Nominations. (a) ~~Subject to Section 7.1(d~~Annual Meetings of Members. (i) ~~of this Agreement, nominations~~ Nominations of Persons for election to the Board of Directors ~~of the Company~~ and the proposal of other business to be considered by the Members ~~may be made~~ at an annual meeting of Members may be made only (iA) pursuant to the Company’s notice of meeting ~~delivered pursuant to Section 11.4 of this Agreement~~(or any supplement thereto), (iiB) by or at the direction of the Board of ~~Directors~~Directors or any committee thereof authorized to do so, (~~iii~~C) ~~for nominations to the Board of Directors only,~~ by any ~~holder~~ Member of ~~Outstanding Units~~ the Company who (i) was a Member of record at the time of giving of notice provided for in this Section 14.11 and at the time of the annual meeting, (ii) is entitled to vote at the meeting, ~~who complied~~ and (iii) complies with the notice procedures and other requirements set forth in ~~paragraph (b)~~ this Agreement and applicable law, or (dD) pursuant to the terms of the Shareholder’s Agreement. In addition, if the proposal is made on behalf of a beneficial owner other than the Member of record, such beneficial owner must be the beneficial owner of Shares of the Company both at the time of giving of notice provided for in this Section 14.11 and at the time of the annual meeting. Section 14.11(a)(ii)(C) of this ~~Section 11.13~~ Agreement shall be the exclusive means for a Member to make nominations or submit other business (other than business brought properly under and ~~who was a Record Holder of a sufficient number of Outstanding Units as~~ in compliance with Rule 14a-8 of the ~~Record Date for such~~ Exchange Act, as may be amended from time to time) before an annual meeting ~~to elect one or more members to the Board of Directors assuming that such holder cast all~~ of the ~~votes it is entitled~~ Members, except as otherwise provided in Section 14.11(a)(ii)(D). Nothing in this Section 14.11 shall be deemed to ~~cast~~ affect any rights of Members to request inclusion of proposals or nominations in ~~such election~~ the Company’s proxy statement or proxy card pursuant to mandatory provisions of the Exchange Act and the rules and regulations thereunder, subject, in ~~favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units~~each case, ~~or (iv) by any holder of Outstanding Units who is entitled~~ to ~~vote at the meeting, who complied~~ compliance with ~~the notice procedures set forth in paragraphs (c) or (d)~~ those provisions of this ~~Section 11.13 and who is a Record Holder of Outstanding Units at the time~~ Agreement that are permitted under such ~~notice is delivered to the Secretary of the Company~~mandatory provisions. (bii) For any nominations or any other business to be properly brought before an annual meeting by a ~~Unitholder~~ Member, other than any of the Shareholders, pursuant to Section ~~11.13(a)(iii)~~14.11(a)(ii)(C) of this Agreement, (A) the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of the ~~Company~~Company and such notice must be in proper form, as required by this Agreement, (B) in the case of business other than nominations, such other business must otherwise be a matter that would be proper for action by the Members pursuant to this Agreement, and (C) the record Member and the beneficial owner, if any, on whose behalf any such proposal or nomination is made, must have acted in accordance with the representations set forth in the Solicitation Statement required by this Agreement. To be timely, a ~~Unitholder~~Member’s ~~notice shall~~ notice, other than from any of the Shareholders, must be ~~delivered to~~ received by the Secretary of the Company at the principal executive offices of the Company not ~~less~~ earlier than ~~90 or more~~ the close of business on the 120th day and not later than ~~120 days~~ the close of business on the 90th day prior to the first anniversary ~~(the “Anniversary”)~~ of the ~~date on which the Company first mailed its proxy materials~~ Public Announcement for the immediately preceding ~~year’s~~ annual meeting (which anniversary, in the case of the first annual meeting of ~~Members~~Members following the close of the IPO, shall be deemed to be June 1, 2025); provided, however, that subject to the following sentence, if that the date of the annual meeting (other than the first annual meeting of Members following the close of the IPO) is ~~advanced~~ scheduled for a date that has changed by more than 30 days before or after such anniversary date, or if no annual meeting was held in the prior ~~to or delayed by more~~ year (other than ~~thirty (30) days after~~ the ~~anniversary~~ first annual meeting of Members following the close of the ~~preceding year’s annual meeting~~IPO), notice by the ~~Unitholder~~ Member to be timely must be so ~~delivered~~ received not earlier than the close of business on the 120th day and not later than the close of business on the later of ~~(x)~~ the ~~ninetieth~~ 90th day prior to such annual meeting ~~or (y)~~ or, if the ~~tenth~~ first Public Announcement of the date of such annual meeting is less than 90 days prior to the date of such annual meeting, the 10th day following the day on which ~~public announcement~~ Public Announcement of the date of such meeting is first ~~made~~made by the Company. ~~Such Unitholder~~In no event shall any adjournment, rescheduling or postponement of an annual meeting or the announcement thereof commence a new time period for the giving of a Member’s notice ~~shall set forth:~~ as described above. To be in proper form, a Member’s notice, other than any of the Shareholders, (whether given pursuant to this Section 14.11(a) or Section 14.11(b)) to the Secretary of the Company must: (A) set forth, as to the Member giving the notice and the beneficial owner, if any, on whose behalf the nomination or business is proposed (i) the name and address of such Member, as they appear on the Company’s books, and of such Member’s Member Associated Person (as defined in Section 14.11(d)), if any, (ii) (A) the class or series and number of Shares that are, directly or indirectly, owned beneficially and of record by such Member and any Member Associated Person, (B) any option, warrant, convertible security, Share appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of Shares or with a value derived in whole or in part from the value of any class or series of Shares, whether or not such instrument or right shall be subject to settlement in the underlying class or series of Shares or otherwise (a “Derivative Instrument”), directly or indirectly owned beneficially by such Member or by any Member Associated Person and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of Shares held by such Member or any Member Associated Person, (C) a complete and accurate description of any agreement, arrangement or understanding between or among such Member and such Member’s Member Associated Person and any other person or persons in connection with such Member’s director nomination and the name and address of any other person(s) or entity or entities known to the Member to support such nomination, (D) a description of any proxy, contract, arrangement, understanding or relationship pursuant to which such Member or any Member Associated Person has a right to vote, directly or indirectly, any Shares, (E) any short interest in any security of the Company held by such Member or any Member Associated Person (for purposes of this Agreement, a Person shall be deemed to have a “short interest” in a security if such Person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security), (F) any rights to Dividends on the Shares owned beneficially by such Member or by any Member Associated Person that are separated or separable from the underlying Shares, (G) any proportionate interest in Shares or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such Member or any Member Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner, and (H) any performance-related fees (other than an asset-based fee) that such Member or any Member Associated Person is entitled to based on any increase or decrease in the value of Shares or Derivative Instruments, if any, as of the date of such notice, including any such interests held by members of such Member’s or any Member Associated Person’s immediate family sharing the same household (which information shall be supplemented by such Member and any Member Associated Person, if any, not later than ten days after the Record Date for determining the Members entitled to vote at the meeting to disclose such ownership as of the Record Date; provided, that if such date is after the date of the meeting, not later than the day prior to the meeting), (iii) any other information relating to such Member and any Member Associated Person, if any, that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for, as applicable, the proposal or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, (iv) a representation that the Member is a holder of record of Shares entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to bring such nomination or other business before the meeting, and (v) a representation as to whether or not such Member or any Member Associated Person intends or is part of a group that intends to deliver a proxy statement or form of proxy to holders of at least the percentage of the voting power of the Company’s Outstanding Shares required to approve or adopt the proposal or, in the case of a nomination or nominations, at least the percentage of the voting power of the Company’s Outstanding Shares reasonably believed by the Member or Member Associated Person, as the case may be, to be sufficient to elect such nominee or nominees (such representation, a “Solicitation Statement”); (B) if the notice relates to any business other than a nomination of a director or directors that the Member proposes to bring before the meeting, set forth (i) a brief description of the business desired to be brought before the meeting, (ii) the exact text of the proposal or business (including the text of any resolution proposed for consideration and in the event that such business includes a proposal to amend this Agreement, the language of the proposed amendment), and the reasons for conducting such business at the meeting, (iii) any substantial interest (within the meaning of Item 5 of Schedule 14A under the Exchange Act) of such Member and Member Associated Person, if any, in such business, and (iv) a complete and accurate description of all agreements, arrangements and understandings between or among such Member and such Member Associated Person, if any, and any other Person or Persons or entity or entities (including their names and addresses) in connection with the proposal of such business by such Member; (C) set forth, as to each ~~Person~~ Person, if any, whom the ~~Unitholder~~ Member proposes to nominate for election or reelection ~~as a Director~~ to the Board of Directors (i) all information relating to such Person that is would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for election of ~~Directors, or is otherwise required,~~ directors in ~~each case~~ a contested election pursuant to ~~Regulation 14A under~~ Section 14 of the Exchange ~~Act,~~ Act and the rules and regulations promulgated thereunder (including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a ~~Director~~ director, if ~~elected~~ elected, for the full term for which such Person is standing for election), (ii) a description of all direct and ~~(B) as to~~ indirect compensation and other material monetary agreements, arrangements and understandings during the ~~Unitholder giving the notice~~ past three years, and ~~the beneficial owner~~any other material relationships, between or among such Member and Member Associated Person, if any, 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 Member making the nomination and any beneficial owner on whose behalf the nomination is made, if any, or ~~proposal is made~~ any Affiliate or associate thereof or Person acting in concert therewith, were the ~~name and address~~ “registrant” for purposes of such ~~Unitholder, as they appear on~~ rule and the ~~Company’s books~~nominee were a director or executive officer of such registrant, and of (iii) a representation that such ~~beneficial owner~~Person intends to serve a full term, ~~the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner. Such holder shall be entitled~~ if elected as a director; and (D) with respect to ~~nominate as many candidates~~ each nominee for election or reelection to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iv)Directors, include (i) a completed and signed questionnaire, representation and agreement in a form provided by the ~~Unitholder~~ Company, which form the Member must ~~have given timely notice thereof in writing to~~ request from the Secretary of the ~~Company,~~ Company in writing with no less than 7 days advance notice and (ii) a written representation and agreement (in the form provided by the Secretary of the Company upon written request) that such ~~business must be~~ Person (A) is not and will not become a ~~proper matter for Member action~~ party to (1) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any Person as to how such Person, if elected as a director of the Company, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Company or (2) 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 ~~this Agreement and the Delaware Act~~applicable law, (~~iii~~B) ~~if the Unitholder~~is not and will not become a party to any agreement, arrangement or ~~the beneficial owner on whose behalf~~ understanding with any ~~such proposal or nomination is made, has provided~~ Person other than the Company with ~~a Solicitation Notice~~respect to any direct or indirect compensation, ~~such Unitholder~~ reimbursement or ~~beneficial owner must,~~ indemnification in ~~the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding Units required under this Agreement~~ connection with service or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding Units reasonably believed by such Unitholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection action as a ~~Director all information relating to such Person~~ director that ~~is required to be~~ has not been disclosed ~~in solicitations of proxies for election of Directors~~therein, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the Unitholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such Unitholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) ~~as to the Unitholder giving the notice~~ in such person’s individual capacity and ~~the beneficial owner, if any,~~ on behalf of any Person on whose behalf the nomination ~~or proposal~~ is ~~made the name and address of such Unitholder~~being made, would be in compliance, if elected as they appear on the Company’s books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner, and whether either such Unitholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage director of the Company~~’s Outstanding Units~~ , and will comply with all applicable governance, conflict of interest, confidentiality and Share ownership and trading policies and guidelines of the Company. The Company may require any proposed nominee to furnish such other information as may reasonably be required ~~under this Agreement or Delaware law~~ by the Company to ~~carry~~ determine the ~~proposal or~~eligibility of such proposed nominee to serve as a director of the Company, in including information that could be relevant to a determination of whether such Person can be considered an Independent Director. (iii) A Member, other than any of the ~~case~~ Shareholders, providing notice of a nomination or ~~nominations~~proposal of other business to be brought before a meeting shall further update and supplement such notice, ~~a sufficient number of holders~~ if necessary, so that the information provided or required to be provided in such notice shall be true and correct (1) as of the ~~Company’s Outstanding Units to elect such nominee or nominees~~ Record Date for the meeting and (~~an affirmative statement of such intent, a “Solicitation Notice”). (d~~2) Notwithstanding anything in the second sentence of Section 11.13(b) or the second sentence of Section 11.13(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all as of the ~~nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days~~ date that is ten Business Days prior to the ~~Anniversary~~meeting or any adjournment, ~~then a Unitholder’s notice required by this Section 11.13 shall also be considered timely~~rescheduling or postponement thereof, ~~but only with respect to nominees for any new positions created by~~ and such ~~increase, if it~~ update and supplement shall be delivered to to, or mailed and received by, the Secretary of the Company at the principal executive offices of the Company not later than five Business Days after the close of business on the tenth day following the day on which such public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before Record Date for the meeting ~~pursuant~~ (in the case of the update and supplement required to ~~the Company’s notice of meeting pursuant to Section 11.4 of this Agreement. Subject to Section 7.1(d) of this Agreement, nominations of Persons for election to the Board of Directors may~~ be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (iiiDate) by any holder of Outstanding Units who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. Nominations by Unitholders of Persons for election to the Board of Directors may be made at such a special meeting of Members if the Unitholder’s notice as required by Section 11.13(b) or Section 11.13(c) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than seven Business Days prior to the ~~close of business~~ date for the meeting or any adjournment, rescheduling or postponement thereof, if practicable (or, if not practicable, on the ~~later~~ first practicable date prior to any adjournment, rescheduling or postponement thereof (in the case of the ~~seventieth day~~ update and supplement required to be made as of ten Business Days prior to ~~such special~~ the meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section 11.13(d)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meetingany adjournment, rescheduling or postponement thereof)). (f) Except to the extent otherwise provided in Section 7.1(d) with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section 11.13 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 1 contract

Samples: Limited Liability Company Agreement (LandBridge Co LLC)

Notice of Member Business and Nominations. (a) Subject to ~~Section 7.1(d)~~ Article V of this Agreement and the nominating rights of the Class B Shareholder Committee under the Class B Shareholders Agreement, nominations of Persons for election to the Board of Directors of the Company and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i6) pursuant to the Company’s 's notice of meeting delivered pursuant to Section ~~11.4~~ 12.2 of this Agreement, (ii7) by or at the direction of the Board of Directors, or (~~iii) for nominations to the Board of Directors only,~~ 8) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (iv) by any holder of Outstanding Units Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (cb) (or (db) and (c)), as applicable, of this Section ~~11.13~~ and who is a Record Holder of Outstanding ~~Units~~ Voting Shares at the time such notice is delivered to the Secretary of the Company. (b) For nominations or other business to be properly brought before an annual meeting by a ~~Unitholder~~ Member pursuant to Section ~~11.13(a)(iii~~12.11(a), the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a ~~Unitholder’s~~ Member's notice shall be delivered to the Secretary at the principal executive offices of the Company not less than ~~90 or~~ ninety (90) days nor more than ~~120~~ one hundred twenty (120) days prior to the ~~first~~ anniversary ~~(the “Anniversary”)~~ of the date on which the Company first ~~mailed~~ made publicly available (whether by mailing, by filing with the Commission or by posting on an internet web site) its proxy materials for the immediately preceding ~~year’s~~ annual meeting of Members; provided, however, ~~that if~~ that, in the ~~date~~ case of the Company's annual meeting to be held in 2008, or if any future annual meeting is ~~advanced more than 30 days prior~~ to ~~or delayed by~~ be held on a date that is more than thirty (30) days before or after the anniversary of the ~~preceding~~ previous year’s 's annual meeting, notice by the ~~Unitholder~~ Member in order to be timely must be so ~~delivered~~ received not later than the close of business on the ~~later of~~ tenth (x10th) ~~the ninetieth day prior to such annual meeting or (y) the tenth~~ day following the day on which public ~~announcement~~ disclosure of the date of ~~such~~ the annual meeting is first ~~made~~made (which may be the date on which proxy materials for such meeting are first mailed). In no event shall the public announcement or postponement of an annual meeting commence a new time period for the giving of a Member's notice as described in this Section 12.11(b). Such ~~Unitholder’s~~ Member's notice shall set forth: (A) with respect to nominations for election or reelection of Directors, as to each Person whom the ~~Unitholder~~ Member proposes to ~~nominate for election or reelection as a Director~~ nominate, all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each ~~case~~ case, pursuant to Regulation 14A under the Exchange Act, including ~~such Person’s written consent~~ rules with respect to ~~being named in the proxy statement as a nominee~~ contested elections thereunder and to serving as a Director if elected and (B) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iv), (i) the Unitholder must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the Unitholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such Unitholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding Units required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding Units reasonably believed by such Unitholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s 's written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the ~~Unitholder~~ Member proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such ~~Unitholder~~ Member and the ~~beneficial owner~~Beneficial Owner, if any, on whose behalf the proposal is ~~made;~~ made and (C) as to the ~~Unitholder~~ Member giving the notice and the ~~beneficial owner~~Beneficial Owner, if any, on whose behalf the nomination or proposal is ~~made~~ made, the name and address of such ~~Unitholder~~Member and of any such Beneficial Owner, as they appear on the Company’s 's books, and ~~of such beneficial owner,~~ the class or series and number of ~~Units~~ Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Member and any such ~~beneficial owner, and whether either such Unitholder or beneficial owner intends to deliver~~ Beneficial Owner. Proposals for actions must be a ~~proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s Outstanding Units required~~ proper matter for Member action under this Agreement or and the Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding Units to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”)Act. (dc) Notwithstanding anything in the second sentence of Section ~~11.13(b) or the second sentence of Section 11.13(c~~12.11(b) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the ~~Anniversary~~anniversary of the date on which the Company first made publicly available (whether by mailing, by filing with the Commission or by posting on an internet web site) its proxy materials for the immediately preceding annual meeting of Members, then a ~~Unitholder’s~~ Member's notice required by this Section ~~11.13~~ 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 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~~ a public announcement regarding such increase is first made by the Company. (ed) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s 's notice of meeting pursuant to Section ~~11.4~~ 12.2 of this Agreement. Subject to Section ~~7.1(d)~~ 5.67 of this Agreement, nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s 's notice of meeting (i9) by or at the direction of the Board of Directors, (ii10) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d(b) and (c)), as applicable, of this Section ~~11.13~~ 12.11 and ~~who was a Record Holder of a sufficient number of Outstanding Units as of~~ has otherwise complied with Regulation 14A under the ~~Record Date for such meeting~~ Exchange Act, including rules with respect to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (iii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Companycontested elections thereunder. Nominations by ~~Unitholders~~ Members of Persons for election to the Board of Directors may be made at such a special meeting of Members if the ~~Unitholder’s~~ Member's notice as required by Section ~~11.13(b) or Section 11.13(c~~12.11(b) shall be delivered to the Secretary of the Company not earlier than the ~~ninetieth~~ 90th day prior to such special meeting and not later than the close of business on the later of (x) the ~~seventieth~~ 70th day prior to such special meeting or (y) the ~~tenth~~ 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section 11.13(d)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meeting. (fe) Except to the extent otherwise provided in ~~Section 7.1(d)~~ Article V with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section ~~11.13~~ shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this ~~Section 11.13~~Section. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section ~~11.13~~ and, if any proposed nomination or business is not in compliance with this ~~Section 11.13~~Section, to declare that such defective proposal or nomination shall be disregarded. (gf) Notwithstanding the foregoing provisions of this ~~Section 11.13~~Section, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this ~~Section 11.13~~Section. Nothing in this Section ~~11.13~~ shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s 's proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Och Daniel)

Notice of Member Business and Nominations. (a) ~~Subject to Section 7.1(d~~Annual Meetings of Members. (i) Nominations of ~~this Agreement, nominations of Persons~~ persons for election to the Board of Directors ~~of the Company~~ and the proposal of other business to be considered by the Members ~~may be made~~ at an annual meeting of Members may be made only (ia) pursuant to the Company’s notice of meeting ~~delivered pursuant to Section 11.4 of this Agreement~~(or any supplement thereto), (iib) by or at the direction of the Board of ~~Directors~~Directors or any committee thereof, (~~iii~~c) ~~for nominations to the Board of Directors only,~~ by any ~~holder~~ Member of ~~Outstanding Units~~ the Company who (i) was a Member of record at the time of giving of notice provided for in this Section 4.13 and at the time of the annual meeting, (ii) is entitled to vote at the ~~meeting, who complied~~ meeting and (iii) complies with the notice procedures and other requirements set forth in ~~paragraph (b)~~ this Agreement and applicable law, or (d) ~~of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as~~ pursuant to the terms of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (iv) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (dShareholders’ Agreement. Section 4.13(a)(i)(c) of this ~~Section 11.13~~ Agreement shall be the exclusive means for a Member to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Exchange Act and ~~who is a Record Holder~~ included in the Company’s notice of ~~Outstanding Units at~~ meeting and proxy statement pursuant to and in compliance with Rule 14a-8 under the ~~time such notice is delivered to the Secretary~~ Exchange Act) before an annual meeting of the ~~Company~~Members, except as otherwise provided in Section 4.13(a)(i)(d). (bii) For any nominations or any other business to be properly brought before an annual meeting by a ~~Unitholder~~ Member pursuant to Section ~~11.13(a)(iii)~~4.13(a)(i)(c) of this Agreement, (a) the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of the ~~Company~~Company and such notice must be in proper form, as required by this Agreement, (b) in the case of business other than nominations, such other business must otherwise be a matter that would be proper for action by the Members pursuant to this Agreement and (c) the record Member and the beneficial owner, if any, on whose behalf any such proposal or nomination is made, must have acted in accordance with the representations set forth in the Solicitation Statement required by this Agreement. To be timely, a ~~Unitholder~~Member’s notice ~~shall~~ must be ~~delivered to~~ received by the Secretary of the Company at the principal executive offices of the Company not ~~less~~ earlier than ~~90 or more~~ the close of business on the 120th day and not later than ~~120 days~~ the close of business on the 90th day prior to the first anniversary (the “Anniversary”) of the date on which the Company first mailed its proxy materials for the preceding year’s annual meeting of Members; provided, however, that if the date of the annual meeting is advanced more than 30 days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual ~~meeting~~meeting (which anniversary, in the case of the first annual meeting of Members following the close of the IPO, shall be deemed to be , 2020); provided, however, that subject to the following sentence, in the event that the date of the annual meeting (other than the first annual meeting of Members following the close of the IPO) is scheduled for a date that is more than 30 days before or more than 60 days after such anniversary date, or in the event that no annual meeting was held in the prior year, notice by the ~~Unitholder~~ Member to be timely must be so ~~delivered~~ received not later than the close of business on the later of ~~(x)~~ the ~~ninetieth~~ 90th day prior to such annual meeting ~~or (y)~~ or, if the ~~tenth~~ first Public Announcement of the date of such annual meeting is less than 90 days prior to the date of such annual meeting, the 10th day following the day on which ~~public announcement~~ Public Announcement of the date of such meeting is first ~~made~~made by the Company. ~~Such Unitholder~~In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period for the giving of a Member’s notice ~~shall set forth:~~ as described above. To be in proper form, a Member’s notice (whether given pursuant to this Section 4.13(a) or Section 4.13(b)) to the Secretary of the Company must: (A) set forth, as to the Member giving the notice and the beneficial owner, if any, on whose behalf the nomination or business is proposed (i) the name and address of such Member, as they appear on the Company’s books, and of such Member’s Member Associated Person (as defined in Section 4.13(d)), if any, (ii) (A) the class or series and number of Shares that are, directly or indirectly, owned beneficially and of record by such Member and any Member Associated Person, (B) any option, warrant, convertible security, Share appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of Shares or with a value derived in whole or in part from the value of any class or series of Shares, whether or not such instrument or right shall be subject to settlement in the underlying class or series of Shares or otherwise (a “Derivative Instrument”), directly or indirectly owned beneficially by such Member or by any Member Associated Person and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of Shares held by such Member or any Member Associated Person, (C) a complete and accurate description of any agreement, arrangement or understanding between or among such Member and such Member’s Member Associated Person and any other person or persons in connection with such Member’s director nomination and the name and address of any other person(s) or entity or entities known to the Member to support such nomination, (D) a description of any proxy, contract, arrangement, understanding or relationship pursuant to which such Member or any Member Associated Person has a right to vote, directly or indirectly, any Shares, (E) any short interest in any security of the Company held by such Member or any Member Associated Person (for purposes of this Agreement, a person shall be deemed to have a “short interest” in a security if such person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security), (F) any rights to dividends on the Shares owned beneficially by such Member or by any Member Associated Person that are separated or separable from the underlying Shares, (G) any proportionate interest in Shares or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such Member or any Member Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner and (H) any performance-related fees (other than an asset-based fee) that such Member or any Member Associated Person is entitled to based on any increase or decrease in the value of Shares or Derivative Instruments, if any, as of the date of such notice, including, without limitation, any such interests held by members of such Member’s or any Member Associated Person’s immediate family sharing the same household (which information shall be supplemented by such Member and any Member Associated Person, if any, not later than ten days after the Record Date for determining the Members entitled to vote at the meeting to disclose such ownership as of the Record Date; provided, that if such date is after the date of the meeting, not later than the day prior to the meeting), (iii) any other information relating to such Member and any Member Associated Person, if any, that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for, as applicable, the proposal or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, (iv) a representation that the Member is a holder of record of Shares entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to bring such nomination or other business before the meeting, and (v) a representation as to whether or not such Member or any Member Associated Person will deliver a proxy statement or form of proxy to holders of at least the percentage of the voting power of the Company’s Outstanding Shares required to approve or adopt the proposal or, in the case of a nomination or nominations, at least the percentage of the voting power of the Company’s Outstanding Shares reasonably believed by the Member or Member Associated Person, as the case may be, to be sufficient to elect such nominee or nominees (such representation, a “Solicitation Statement”); (B) if the notice relates to any business other than a nomination of a director or directors that the Member proposes to bring before the meeting, set forth (i) a brief description of the business desired to be brought before the meeting (including the text of any resolution proposed for consideration and in the event that such business includes a proposal to amend this Agreement, the language of the proposed amendment), the reasons for conducting such business at the meeting and any substantial interest (within the meaning of Item 5 of Schedule 14A under the Exchange Act) of such Member and Member Associated Person, if any, in such business and (ii) a complete and accurate description of all agreements, arrangements and understandings between or among such Member and such Member Associated Person, if any, and any other person(s) or entity or entities (including their names and addresses) in connection with the proposal of such business by such Member; (C) set forth, as to each ~~Person~~ person, if any, whom the ~~Unitholder~~ Member proposes to nominate for election or reelection ~~as a Director~~ to the Board of Directors (i) all information relating to such ~~Person~~ person that is would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for election of ~~Directors, or is otherwise required,~~ directors in ~~each case~~ a contested election pursuant to ~~Regulation 14A under~~ Section 14 of the Exchange ~~Act,~~ Act and the rules and regulations promulgated thereunder (including such ~~Person~~person’s written consent to being named in the proxy statement as a nominee and to serving as a ~~Director~~ director, if ~~elected~~ elected, for the full term for which such person is standing for election), (ii) a description of all direct and ~~(B) as to~~ indirect compensation and other material monetary agreements, arrangements and understandings during the ~~Unitholder giving the notice~~ past three years, and ~~the beneficial owner~~any other material relationships, between or among such Member and Member Associated Person, if any, and their respective Affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective Affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the Member making the nomination and any beneficial owner on whose behalf the nomination is made, if any, or ~~proposal is made~~ any Affiliate or associate thereof or person acting in concert therewith, were the ~~name and address~~ “registrant” for purposes of such ~~Unitholder, as they appear on~~ rule and the ~~Company’s books~~nominee were a director or executive officer of such registrant, and of (iii) a representation that such ~~beneficial owner~~person intends to serve a full term, ~~the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner. Such holder shall be entitled~~ if elected as a director; and (D) with respect to ~~nominate as many candidates~~ each nominee for election or reelection to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iv)Directors, include (i) a completed and signed questionnaire, representation and agreement in a form provided by the ~~Unitholder~~ Company, which form the Member must ~~have given timely notice thereof in writing to~~ request from the Secretary of the ~~Company,~~ Company in writing with no less than 7 days advance notice and (ii) a written representation and agreement (in the form provided by the Secretary of the Company upon written request) that such ~~business must be~~ person (A) is not and will not become a ~~proper matter for Member action~~ party to (1) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Company, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Company or (2) 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 ~~this Agreement and the Delaware Act~~applicable law, (~~iii~~B) ~~if the Unitholder~~is not and will not become a party to any agreement, arrangement or ~~the beneficial owner on whose behalf~~ understanding with any ~~such proposal~~ person or ~~nomination is made, has provided~~ entity other than the Company with ~~a Solicitation Notice~~respect to any direct or indirect compensation, ~~such Unitholder~~ reimbursement or ~~beneficial owner must,~~ indemnification in ~~the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding Units required under this Agreement~~ connection with service or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding Units reasonably believed by such Unitholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection action as a ~~Director all information relating to such Person~~ director that ~~is required to be~~ has not been disclosed ~~in solicitations of proxies for election of Directors~~therein, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the Unitholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such Unitholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) ~~as to the Unitholder giving the notice~~ in such person’s individual capacity and ~~the beneficial owner, if any,~~ on behalf of any person or entity on whose behalf the nomination ~~or proposal~~ is ~~made the name and address of such Unitholder~~being made, would be in compliance, if elected as they appear on the Company’s books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner, and whether either such Unitholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage director of the Company~~’s Outstanding Units~~ , and will comply with all applicable publicly disclosed governance, conflict of interest, confidentiality and Share ownership and trading policies and guidelines of the Company. The Company may require any proposed nominee to furnish such other information as may reasonably be required ~~under this Agreement or Delaware law~~ by the Company to ~~carry~~ determine the ~~proposal or~~eligibility of such proposed nominee to serve as a director of the Company, ~~in the case~~ including information that could be relevant to a determination of whether such person can be considered an Independent Director. (iii) A Member providing notice of a nomination or ~~nominations~~proposal of other business to be brought before a meeting shall further update and supplement such notice, ~~a sufficient number of holders~~ if necessary, so that the information provided or required to be provided in such notice shall be true and correct (1) as of the ~~Company’s Outstanding Units to elect such nominee or nominees~~ Record Date for the meeting and (~~an affirmative statement of such intent, a “Solicitation Notice”). (d~~2) Notwithstanding anything in the second sentence of Section 11.13(b) or the second sentence of Section 11.13(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all as of the ~~nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days~~ date that is ten Business Days prior to the ~~Anniversary~~meeting or any adjournment, ~~then a Unitholder’s notice required by this Section 11.13 shall also be considered timely~~recess, ~~but only with respect to nominees for any new positions created by~~ cancellation, rescheduling or postponement thereof, and such ~~increase, if it~~ update and supplement shall be delivered to to, or mailed and received by, the Secretary of the Company at the principal executive offices of the Company not later than five Business Days after the close of business on the tenth day following the day on which such public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before Record Date for the meeting ~~pursuant~~ (in the case of the update and supplement required to ~~the Company’s notice of meeting pursuant to Section 11.4 of this Agreement. Subject to Section 7.1(d) of this Agreement, nominations of Persons for election to the Board of Directors may~~ be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (iiiDate) by any holder of Outstanding Units who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. Nominations by Unitholders of Persons for election to the Board of Directors may be made at such a special meeting of Members if the Unitholder’s notice as required by Section 11.13(b) or Section 11.13(c) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than seven Business Days prior to the ~~close of business~~ date for the meeting or any postponement or adjournment thereof, if practicable (or, if not practicable, on the ~~later~~ first practicable date prior to any adjournment, recess or postponement thereof (in the case of the ~~seventieth day~~ update and supplement required to be made as of ten Business Days prior to ~~such special~~ the meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section 11.13(d)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meetingany adjournment, recess or postponement thereof)). (f) Except to the extent otherwise provided in Section 7.1(d) with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section 11.13 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Fortis Minerals, LLC)

Notice of Member Business and Nominations. (a) Subject to ~~Section 7.1(d)~~ Article V of this Agreement and the nominating rights of the Class B Shareholder Committee under the Class B Shareholders Agreement, nominations of Persons for election to the Board of Directors of the Company and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s notice of meeting delivered pursuant to Section ~~11.4~~ 12.2 of this Agreement, (ii) by or at the direction of the Board of Directors, or (iii) for nominations to the Board of Directors only, by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (iv) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (cb) (or (db) and (c)), as applicable, of this Section ~~11.13~~ and who is a Record Holder of Outstanding ~~Units~~ Voting Shares at the time such notice is delivered to the Secretary of the Company. (b) For nominations or other business to be properly brought before an annual meeting by a ~~Unitholder~~ Member pursuant to Section ~~11.13(a)(iii~~12.11(a), the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a ~~Unitholder~~Member’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than ~~90 or~~ ninety (90) days nor more than ~~120~~ one hundred twenty (120) days prior to the ~~first~~ anniversary ~~(the “Anniversary”)~~ of the date on which the Company first ~~mailed~~ made publicly available (whether by mailing, by filing with the Commission or by posting on an internet web site) its proxy materials for the immediately preceding ~~year’s~~ annual meeting of Members; provided, however, ~~that if~~ that, in the ~~date~~ case of the Company’s annual meeting to be held in 2008, or if any future annual meeting is ~~advanced more than 30 days prior~~ to ~~or delayed by~~ be held on a date that is more than thirty (30) days before or after the anniversary of the ~~preceding~~ previous year’s annual meeting, notice by the ~~Unitholder~~ Member in order to be timely must be so ~~delivered~~ received not later than the close of business on the ~~later of~~ tenth (x10th) ~~the ninetieth day prior to such annual meeting or (y) the tenth~~ day following the day on which public ~~announcement~~ disclosure of the date of ~~such~~ the annual meeting is first ~~made~~made (which may be the date on which proxy materials for such meeting are first mailed). In no event shall the public announcement or postponement of an annual meeting commence a new time period for the giving of a Member’s notice as described in this Section 12.11(b). Such ~~Unitholder~~Member’s notice shall set forth: (A) with respect to nominations for election or reelection of Directors, as to each Person whom the ~~Unitholder~~ Member proposes to ~~nominate for election or reelection as a Director~~ nominate, all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each ~~case~~ case, pursuant to Regulation 14A under the Exchange Act, including ~~such Person’s written consent~~ rules with respect to ~~being named in the proxy statement as a nominee~~ contested elections thereunder and to serving as a Director if elected and (B) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iv), (i) the Unitholder must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the Unitholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such Unitholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding Units required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding Units reasonably believed by such Unitholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the ~~Unitholder~~ Member proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such ~~Unitholder~~ Member and the ~~beneficial owner~~Beneficial Owner, if any, on whose behalf the proposal is ~~made;~~ made and (C) as to the ~~Unitholder~~ Member giving the notice and the ~~beneficial owner~~Beneficial Owner, if any, on whose behalf the nomination or proposal is ~~made~~ made, the name and address of such ~~Unitholder~~Member and of any such Beneficial Owner, as they appear on the Company’s books, and ~~of such beneficial owner,~~ the class or series and number of ~~Units~~ Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Member and any such ~~beneficial owner, and whether either such Unitholder or beneficial owner intends to deliver~~ Beneficial Owner. Proposals for actions must be a ~~proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s Outstanding Units required~~ proper matter for Member action under this Agreement or and the Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding Units to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”)Act. (dc) Notwithstanding anything in the second sentence of Section ~~11.13(b) or the second sentence of Section 11.13(c~~12.11(b) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the ~~Anniversary~~anniversary of the date on which the Company first made publicly available (whether by mailing, by filing with the Commission or by posting on an internet web site) its proxy materials for the immediately preceding annual meeting of Members, then a ~~Unitholder~~Member’s notice required by this Section ~~11.13~~ 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 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~~ a public announcement regarding such increase is first made by the Company. (ed) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section ~~11.4~~ 12.2 of this Agreement. Subject to Section ~~7.1(d)~~ 5.67 of this Agreement, nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d(b) and (c)), as applicable, of this Section ~~11.13~~ 12.11 and ~~who was a Record Holder of a sufficient number of Outstanding Units as of~~ has otherwise complied with Regulation 14A under the ~~Record Date for such meeting~~ Exchange Act, including rules with respect to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (iii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Companycontested elections thereunder. Nominations by ~~Unitholders~~ Members of Persons for election to the Board of Directors may be made at such a special meeting of Members if the ~~Unitholder~~Member’s notice as required by Section ~~11.13(b) or Section 11.13(c~~12.11(b) shall be delivered to the Secretary of the Company not earlier than the ~~ninetieth~~ 90th day prior to such special meeting and not later than the close of business on the later of (x) the ~~seventieth~~ 70th day prior to such special meeting or (y) the ~~tenth~~ 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section 11.13(d)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meeting. (fe) Except to the extent otherwise provided in ~~Section 7.1(d)~~ Article V with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section ~~11.13~~ shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this ~~Section 11.13~~Section. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section ~~11.13~~ and, if any proposed nomination or business is not in compliance with this ~~Section 11.13~~Section, to declare that such defective proposal or nomination shall be disregarded. (gf) Notwithstanding the foregoing provisions of this ~~Section 11.13~~Section, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this ~~Section 11.13~~Section. Nothing in this Section ~~11.13~~ shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Och-Ziff Capital Management Group LLC)

Notice of Member Business and Nominations. (a) Subject to ~~Section 7.1(d)~~ Article V of this Agreement, nominations of Persons for election to the Board of Directors of the Company and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s notice of meeting delivered pursuant to Section ~~11.4~~ 11.2 of this Agreement, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section ~~11.13~~ and who was a Record Holder of a sufficient number of Outstanding ~~Units~~ Voting Shares as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding ~~Units~~Voting Shares, or (iv) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section ~~11.13~~ and who is a Record Holder of Outstanding ~~Units~~ Voting Shares at the time such notice is delivered to the Secretary of the Company. (b) For nominations to be properly brought before an annual meeting by a ~~Unitholder~~ Member pursuant to Section ~~11.13(a)(iii~~11.11(a)(iii), the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a ~~Unitholder~~Member’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than ~~90 or~~ ninety (90) days nor more than ~~120~~ one hundred twenty (120) days prior to the ~~first~~ anniversary ~~(the “Anniversary”)~~ of the date on which the Company first ~~mailed~~ made publicly available (whether by mailing, by filing with the Commission or by posting on an internet web site) its proxy materials for the immediately preceding ~~year’s~~ annual meeting of Members; provided, however, ~~that~~ that, in the case of the Company's first annual meeting, or if ~~the date of~~ the annual meeting is ~~advanced~~ called for a date that is more than ~~30 days prior to or delayed by more than thirty~~ twenty-five (3025) days before or after the anniversary of the ~~preceding~~ previous year’s 's annual meeting, notice by the ~~Unitholder~~ Member in order to be timely must be so ~~delivered~~ received not later than the close of business on the ~~later of~~ tenth (x10th) ~~the ninetieth day prior to such annual meeting or (y) the tenth~~ day following the day on which public ~~announcement~~ disclosure of the date of ~~such~~ the annual meeting is first ~~made~~made (which may be the date on which proxy materials for such meeting are first mailed). In no event shall the public announcement or postponement of an annual meeting commence a new time period for the giving of a Member's notice as described in this Section 11.11(b). Such ~~Unitholder~~Member’s notice shall set forth: (A) as to each Person whom the ~~Unitholder~~ Member proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each ~~case~~ case, pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the ~~Unitholder~~ Member giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such ~~Unitholder~~Member, as they appear on the Company’s books, and of such beneficial owner, the class or series and number of ~~Units~~ Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Member and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a ~~Unitholder~~ Member pursuant to Section ~~11.13(a)(iv~~11.11(a)(iv), (i) the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the ~~Unitholder~~Member, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such ~~Unitholder~~ Member or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding ~~Units~~ Shares required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding ~~Units~~ Voting Shares reasonably believed by such ~~Unitholder~~ Member or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such ~~Unitholder~~Member, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section ~~11.13~~11.11, the ~~Unitholder~~ Member or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a ~~Unitholder~~Member’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than ~~90 or~~ ninety (90) days nor more than ~~120~~ one hundred twenty (120) days prior to the anniversary of the date on which the Company first ~~Anniversary~~made publicly available (whether by mailing, by filing with the Commission or by posting on an internet web site) its proxy materials for the immediately preceding annual meeting of Members; provided, however, ~~that~~ that, in the ~~event that~~ case of the ~~date of~~ Company's first annual meeting, or if the annual meeting is ~~advanced~~ called for a date that is more than ~~thirty~~ twenty-five (3025) days ~~prior to~~ before or ~~delayed by more than thirty (30) days~~ after the anniversary of the ~~preceding~~ previous year’s 's annual meeting, notice by the ~~Unitholder~~ Member in order to be timely must be so ~~delivered~~ received not later than the close of business on the ~~later of~~ tenth (x10th) ~~the ninetieth day prior to such annual meeting or (y) the tenth~~ day following the day on which public ~~announcement~~ disclosure of the date of ~~such~~ the annual meeting is first ~~made~~made (which may be the date on which proxy materials for such meeting are first made publicly available, whether by mailing, by filing with the Commission or by posting on an internet web site). In no event shall the public announcement or postponement of an annual meeting commence a new time period for the giving of a Member's notice as described in this Section 11.11(c). Such ~~Unitholder~~Member’s notice shall set forth: (A) as to each Person whom the ~~Unitholder~~ Member proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the ~~Unitholder~~ Member proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such ~~Unitholder~~ Member and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the ~~Unitholder~~ Member giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such ~~Unitholder~~Member, as they appear on the Company’s books, and of such beneficial owner, the class or series and number of ~~Units~~ Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Member and such beneficial owner, and whether either such ~~Unitholder~~ Member or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s Outstanding ~~Units~~ Voting Shares required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding ~~Units~~ Shares to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”). (d) Notwithstanding anything in the second sentence of Section ~~11.13(b~~11.11(b) or the ~~second~~ first sentence of Section ~~11.13(c~~11.11(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the ~~Anniversary~~anniversary of the date on which the Company first made publicly available (whether by mailing, by filing with the Commission or by posting on an internet web site) its proxy materials for the immediately preceding annual meeting of Members, then a ~~Unitholder~~Member’s notice required by this Section ~~11.13~~ 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 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 public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section ~~11.4~~ 11.2 of this Agreement. Subject to Section ~~7.1(d)~~ 5.6 of this Agreement, nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section ~~11.13~~ 11.11 and who was a Record Holder of a sufficient number of Outstanding ~~Units~~ Voting Shares as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding ~~Units~~Voting Shares, or (iii) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complies with the notice procedures set forth in paragraph (c) or (d) this Section ~~11.13~~ and who is a Record Holder of Outstanding ~~Units~~ Voting Shares at the time such notice is delivered to the Secretary of the Company. Nominations by ~~Unitholders~~ Members of Persons for election to the Board of Directors may be made at such a special meeting of Members if the ~~Unitholder~~Member’s notice as required by Section ~~11.13(b~~11.11(b) or Section ~~11.13(c~~11.11(c) shall be delivered to the Secretary of the Company not earlier than the ~~ninetieth~~ 90th day prior to such special meeting and not later than the close of business on the later of the ~~seventieth~~ 70th day prior to such special meeting or the ~~tenth~~ 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding ~~Units~~ Voting Shares making nominations pursuant to Section ~~11.13(d)(ii~~11.11(e)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section ~~11.13(b~~11.11(b) for an annual meeting. (f) Except to the extent otherwise provided in ~~Section 7.1(d)~~ Article V with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section ~~11.13~~ shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this ~~Section 11.13~~Section. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section ~~11.13~~ and, if any proposed nomination or business is not in compliance with this ~~Section 11.13~~Section, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this ~~Section 11.13~~Section, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this ~~Section 11.13~~Section. Nothing in this Section ~~11.13~~ shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Fortress Investment Group LLC)

Notice of Member Business and Nominations. (a) ~~Subject to Section 7.1(d) of this Agreement, nominations~~ Nominations of Persons for election to the Board of Directors of the Company and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s notice of meeting delivered pursuant to Section 11.4 of this Agreement, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (iv) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. (b) For nominations to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iii), the Unitholder must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first anniversary (the “Anniversary”) of the date on which the Company first mailed its proxy materials for the preceding year’s annual meeting of Members; provided, however, that if the date of the annual meeting is advanced more than 30 days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination ~~or proposal~~ is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section ~~11.13(a)(iv~~11.13(a), (i) the Unitholder must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the Unitholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such Unitholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the ~~Company’s~~ Outstanding Units required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the ~~Company’s~~ Outstanding Units reasonably believed by such Unitholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the Unitholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such Unitholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner, and whether either such Unitholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the ~~Company’s~~ Outstanding Units required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding Units to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”). (d) Notwithstanding anything in the second sentence of Section 11.13(b) or the second sentence of Section 11.13(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the Anniversary, then a Unitholder’s notice required by this Section 11.13 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 the Secretary at the principal executive offices of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section 11.4 of this Agreement. Subject to Section 7.1(d~~) of this Agreement~~), nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected (i) pursuant to the Company’s notice of ~~meeting~~ meeting, (iii) by or at the direction of the Board of Directors, (iiiii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (~~iii~~iv) by any holder of Outstanding Units who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. Nominations by Unitholders of Persons for election to the Board of Directors may be made at such a special meeting of Members if the Unitholder’s notice as required by Section 11.13(b) or Section 11.13(c) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section ~~11.13(d)(ii~~11.13(e)(iii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meeting. (f) Except to the extent otherwise provided in Section 7.1(d) with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section 11.13 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Vanguard Natural Resources, LLC)

Notice of Member Business and Nominations. (a) Subject to Section 7.1(d) of this Agreement, nominations of Persons for election to the Board of Directors of the Company and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s 's notice of meeting delivered pursuant to Section 11.4 of this Agreement, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election pursuant to Section 11.8(d) in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units (or, in the case where such holder holds a sufficient number of Outstanding Units to elect more than one Director, such holder votes its Units as efficiently as possible for such candidates and such candidates receive no further votes from holders of Outstanding Units), or (iv) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. (b) For nominations to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iii), the Unitholder must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a Unitholder’s 's notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first anniversary (the “"Anniversary”") of the date on which the Company first mailed its proxy materials for the preceding year’s 's annual meeting of Members; provided, however, that if the date of the annual meeting is advanced more than 30 days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s 's annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s 's notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s 's written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s 's books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iv), (i) the Unitholder must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the Unitholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such Unitholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s 's Outstanding Units required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s 's Outstanding Units reasonably believed by such Unitholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s 's notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s 's annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s 's notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s 's written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the Unitholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such Unitholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s 's books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner, and whether either such Unitholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s 's Outstanding Units required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s 's Outstanding Units to elect such nominee or nominees (an affirmative statement of such intent, a “"Solicitation Notice”"). (d) Notwithstanding anything in the second sentence of Section 11.13(b) or the second sentence of Section 11.13(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the Anniversary, then a Unitholder’s 's notice required by this Section 11.13 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 the Secretary at the principal executive offices of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s 's notice of meeting pursuant to Section 11.4 of this Agreement. Subject to Section 7.1(d) of this Agreement, nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s 's notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election pursuant to Section 11.8(d) in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units (or, in the case where such holder holds a sufficient number of Outstanding Units to elect more than one Director, such holder votes its shares as efficiently as possible for such candidates and such candidates receive no further votes from holders of Outstanding Units), or (iii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. Nominations by Unitholders of Persons for election to the Board of Directors may be made at such a special meeting of Members if the Unitholder’s 's notice as required by Section 11.13(b) or Section 11.13(c) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section 11.13(d)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meeting. (f) Except to the extent otherwise provided in Section 7.1(d) with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section 11.13 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s 's proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Copano Energy, L.L.C.)

Notice of Member Business and Nominations. (a) ~~Subject to Section 7.1(d) of this Agreement, nominations~~ Nominations of Persons for election to the Board of Directors of the Company and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s notice of meeting delivered pursuant to Section 11.4 of this Agreement, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (bv) or (dc) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (iv) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (cb) or (dc) of this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company~~. (b)~~ . For nominations to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iii), the Unitholder must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 120 days or more than ~~120~~ 150 days prior to the first anniversary (the “Anniversary”) of the date on which the Company first mailed its proxy materials for the preceding year’s annual meeting of Members; provided, however, that if the date of the annual meeting is advanced more than 30 days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (xv) the ninetieth day prior to such annual meeting or (yvi) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination ~~or proposal~~ is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the ~~class~~ Class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (cb) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section ~~11.13(a)(iv~~11.13(a), (i) the Unitholder must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the Unitholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such Unitholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the ~~Company’s~~ Outstanding Units required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the ~~Company’s~~ Outstanding Units reasonably believed by such Unitholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 120 days or more than ~~120~~ 150 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the Unitholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such Unitholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the ~~class and~~ Class And number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner, and whether either such Unitholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the ~~Company’s~~ Outstanding Units required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding Units to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”). (dc) Notwithstanding anything in the second sentence of Section ~~11.13(b~~11.3(b) or the second sentence of Section ~~11.13(c~~11.3(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the Anniversary, then a Unitholder’s notice required by this Section 11.13 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 the Secretary at the principal executive offices of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company. (ed) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section 11.4 of this Agreement. Subject to Section 7.1(d~~) of this Agreement~~), nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected (i) pursuant to the Company’s notice of ~~meeting~~ meeting, (iii) by or at the direction of the Board of Directors, (iiiii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (bv) or (dc) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (~~iii~~iv) by any holder of Outstanding Units who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. Nominations by Unitholders of Persons for election to the Board of Directors may be made at such a special meeting of Members if the Unitholder’s notice as required by Section ~~11.13(b~~11.3(b) or Section ~~11.13(c~~11.3(c) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section ~~11.13(d)(ii~~11.13(d)(iii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section ~~11.13(b~~11.3(b) for an annual meeting. (fe) Except to the extent otherwise provided in Section 7.1(d) with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section 11.13 70 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded. (gf) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Vanguard Natural Resources, LLC)

Notice of Member Business and Nominations. (a) Subject to Section 7.1(d) of this Agreement, nominations of Persons for election to the Board of Directors of the Company and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s notice of meeting delivered pursuant to Section 11.4 of this Agreement, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election pursuant to Section 11.8(d) in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units (or, in the case where such holder holds a sufficient number of Outstanding Units to elect more than one Director, such holder votes its Units as efficiently as possible for such candidates and such candidates receive no further votes from holders of Outstanding Units), or (iv) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. (b) For nominations to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iii), the Unitholder must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first anniversary (the “Anniversary”) of the date on which the Company first mailed its proxy materials for the preceding year’s annual meeting of Members; provided, however, that if the date of the annual meeting is advanced more than 30 days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iv), (i) the Unitholder must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the Unitholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such Unitholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding Units required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding Units reasonably believed by such Unitholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the Unitholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such Unitholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner, and whether either such Unitholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s Outstanding Units required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding Units to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”). (d) Notwithstanding anything in the second sentence of Section 11.13(b) or the second sentence of Section 11.13(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the Anniversary, then a Unitholder’s notice required by this Section 11.13 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 the Secretary at the principal executive offices of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section 11.4 of this Agreement. Subject to Section 7.1(d) of this Agreement, nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election pursuant to Section 11.8(d) in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units (or, in the case where such holder holds a sufficient number of Outstanding Units to elect more than one Director, such holder votes its shares as efficiently as possible for such candidates and such candidates receive no further votes from holders of Outstanding Units), or (iii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. Nominations by Unitholders of Persons for election to the Board of Directors may be made at such a special meeting of Members if the Unitholder’s notice as required by Section 11.13(b) or Section 11.13(c) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section 11.13(d)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meeting. (f) Except to the extent otherwise provided in Section 7.1(d) with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section 11.13 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Copano Energy, L.L.C.)

Notice of Member Business and Nominations. (a) Subject to Section 7.1(d) of this Agreement, nominations of ~~Persons~~ persons for election to the Board of Directors of the Company and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s 's notice of meeting delivered pursuant to Section 11.4 of this Agreement, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election pursuant to Section 11.8(d) in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units (or, in the case where such holder holds a sufficient number of Outstanding Units to elect more than one Director, such holder votes its shares as efficiently as possible for such candidates and such candidates receive no further votes from holders of Outstanding Units), or (iv) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. (b) For nominations to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iii), the Unitholder must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a Unitholder’s 's notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 45 or more than ~~120~~ 75 days prior to the first anniversary (the “"Anniversary”") of the date on which the Company first mailed its proxy materials for the preceding year’s 's annual meeting of Members; provided, however, that if in the event that the date of the annual meeting is advanced more than 30 days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s 's annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s 's notice shall set forth: (A) as to each ~~Person~~ person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such ~~Person~~ person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such ~~Person’s~~ person's written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial ownerelected. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates, and (B) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company's books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner. (c) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iv), (i) the Unitholder must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the Unitholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such Unitholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s 's Outstanding Units required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s 's Outstanding Units reasonably believed by such Unitholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s 's notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 forty-five (45) or more than ~~120~~ seventy-five (75) days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s 's annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s 's notice shall set forth: (A) as to each ~~Person~~ person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such ~~Person~~ person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such ~~Person’s~~ person's written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the Unitholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such Unitholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s 's books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner, and whether either such Unitholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s 's Outstanding Units required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s 's Outstanding Units to elect such nominee or nominees (an affirmative statement of such intent, a “"Solicitation Notice”"). (d) Notwithstanding anything in the second sentence of Section 11.13(b) or the second sentence of Section 11.13(c) to the contrary, if in the event that the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 55 days prior to the Anniversary, ~~then~~ a Unitholder’s 's notice required by this Section 11.13 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 the Secretary at the principal executive offices of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s 's notice of meeting pursuant to Section 11.4 of this Agreement. Subject to Section 7.1(d) of this Agreement, nominations of ~~Persons~~ persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s 's notice of meeting (~~i) by~~ i)by or at the direction of the Board of Directors, (ii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election pursuant to Section 11.8(d) in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units (or, in the case where such holder holds a sufficient number of Outstanding Units to elect more than one Director, such holder votes its shares as efficiently as possible for such candidates and such candidates receive no further votes from holders of Outstanding Units), or (iii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. Nominations by Unitholders of ~~Persons~~ persons for election to the Board of Directors may be made at such a special meeting of Members if the Unitholder’s 's notice as required by Section 11.13(b) or Section 11.13(c) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section 11.13(d)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meeting. (f) ~~Except to the extent otherwise provided in Section 7.1(d) with respect to vacancies, only Persons~~ Only persons who are nominated in accordance with the procedures set forth in this Section 11.13 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s 's proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Copano Energy, L.L.C.)

Notice of Member Business and Nominations. Notice of member business and nominations shall be conducted in accordance with the following: (a) ~~Subject~~ Prior to the occurrence of a Cheniere Separation Event, proposals of business to be considered by the Members at a meeting of Members may only be made by or at the direction of the Board of Directors. (b) On or after the occurrence of a Cheniere Separation Event and subject to Section 7.1(d~~) of this Agreement~~), nominations of Persons for election to the Board of Directors ~~of the Company~~ and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s notice of meeting delivered pursuant to Section ~~11.4 of this Agreement~~11.4, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding ~~Units~~ Common Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding ~~Units~~ Common Shares as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding ~~Units~~Common Shares, or (iv) by any holder of Outstanding ~~Units~~ Common Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section 11.13 and who is a Record Holder of Outstanding ~~Units~~ Common Shares at the time such notice is delivered to the Secretary of the Company.; (bc) For nominations to be properly brought before an annual meeting by a ~~Unitholder~~ Shareholder pursuant to Section ~~11.13(a)(iii~~11.13(b)(iii), the ~~Unitholder~~ Shareholder must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a ~~Unitholder~~Shareholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first anniversary (the “Anniversary”) of the date on which the Company first mailed its proxy materials for the preceding year’s annual meeting of Members; provided, however, that if the date of the annual meeting is advanced more than 30 days prior to or delayed by more than ~~thirty (30)~~ 30 days after the anniversary of the preceding year’s annual meeting, notice by the ~~Unitholder~~ Shareholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such ~~Unitholder~~Shareholder’s notice shall set forth: (A) as to each Person whom the ~~Unitholder~~ Shareholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the ~~Unitholder~~ Shareholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such ~~Unitholder~~Shareholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of ~~Units~~ Common Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Shareholder and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates.; (cd) For nominations or other business to be properly brought before an annual meeting by a ~~Unitholder~~ Shareholder pursuant to Section ~~11.13(a)(iv~~11.13(b) (iv), (i) the ~~Unitholder~~ Shareholder must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the ~~Unitholder~~Shareholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such ~~Unitholder~~ Shareholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding ~~Units~~ Common Shares required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding ~~Units~~ Common Shares reasonably believed by such ~~Unitholder~~ Shareholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such ~~Unitholder~~Shareholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the ~~Unitholder~~ Shareholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a ~~Unitholder~~Shareholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than ~~thirty (30)~~ 30 days prior to or delayed by more than ~~thirty (30)~~ 30 days after the anniversary of the preceding year’s annual meeting, notice by the ~~Unitholder~~ Shareholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such ~~Unitholder~~Shareholder’s notice shall set forth: (A) as to each Person whom the ~~Unitholder~~ Shareholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the ~~Unitholder~~ Shareholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such ~~Unitholder~~ Shareholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the ~~Unitholder~~ Shareholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such ~~Unitholder~~Shareholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of ~~Units~~ Common Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Shareholder and such beneficial owner, and whether either such ~~Unitholder~~ Shareholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s Outstanding ~~Units~~ Common Shares required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding ~~Units~~ Common Shares to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”).; (de) Notwithstanding anything in the second sentence of Section ~~11.13(b~~11.13(c) or the second sentence of Section ~~11.13(c~~11.13(d) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the Anniversary, then a ~~Unitholder~~Shareholder’s notice required by this Section 11.13 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 the Secretary at the principal executive offices of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company.; (ef) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section ~~11.4 of this Agreement~~11.4. Subject to Section 7.1(d~~) of this Agreement~~), nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding ~~Units~~ Common Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding ~~Units~~ Common Shares as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding ~~Units~~Common Shares, or (iii) by any holder of Outstanding ~~Units~~ Common Shares who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding ~~Units~~ Common Shares at the time such notice is delivered to the Secretary of the Company. Nominations by ~~Unitholders~~ Shareholders of Persons for election to the Board of Directors may be made at such a special meeting of Members if the ~~Unitholder~~Shareholder’s notice as required by Section ~~11.13(b~~11.13(c) or Section ~~11.13(c~~11.13(d) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding ~~Units~~ Common Shares making nominations pursuant to Section ~~11.13(d)(ii~~11.13(e)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meeting. (f) Except to the extent otherwise provided in Section 7.1(d) with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section 11.13 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.in

Appears in 1 contract

Samples: Limited Liability Company Agreement

Notice of Member Business and Nominations. (a) ~~Subject to Section 7.1(d) of this Agreement, nominations~~ Nominations of Persons for election to the Board of Directors of the Company and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s notice of meeting delivered pursuant to Section 11.4 of this Agreement, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (iv) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. (b) For nominations to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iii), the Unitholder must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 120 days or more than ~~120~~ 150 days prior to the first anniversary (the “Anniversary”) of the date on which the Company first mailed its proxy materials for the preceding year’s annual meeting of Members; provided, however, that if the date of the annual meeting is advanced more than 30 days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (xi) the ninetieth day prior to such annual meeting or (yii) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination ~~or proposal~~ is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the ~~class and~~ Class And number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section ~~11.13(a)(iv~~11.13(a), (i) the Unitholder must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the Unitholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with 74 a Solicitation Notice, such Unitholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the ~~Company’s~~ Outstanding Units required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the ~~Company’s~~ Outstanding Units reasonably believed by such Unitholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 120 days or more than ~~120~~ 150 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the Unitholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such Unitholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the ~~class and~~ Class And number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner, and whether either such Unitholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the ~~Company’s~~ Outstanding Units required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding Units to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”). (d) Notwithstanding anything in the second sentence of Section 11.13(b) or the second sentence of Section 11.13(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the Anniversary, then a Unitholder’s notice required by this Section 11.13 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 the Secretary at the principal executive offices of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section 11.4 of this Agreement. Subject to Section 7.1(d~~) of this Agreement~~), nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected (i) pursuant to the Company’s notice of ~~meeting~~ meeting, (iii) by or at the direction of the Board of Directors, (iiiii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (~~iii~~iv) by any holder of Outstanding Units who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. Nominations by Unitholders of Persons for election to the Board of Directors may be made at such a special meeting of Members if the Unitholder’s notice as required by Section 11.13(b) or Section 11.13(c) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section ~~11.13(d)(ii~~11.13(e)(iii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meeting. (f) Except to the extent otherwise provided in Section 7.1(d) with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section 11.13 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Vanguard Natural Resources, LLC)

Notice of Member Business and Nominations. (a) Subject to Section 7.1(d) of this Agreement, nominations of Persons for election to the Board of Directors of the Company and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s notice of meeting delivered pursuant to Section 11.4 of this Agreement, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election pursuant to Section 11.8(d) in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units (or, in the case where such holder holds a sufficient number of Outstanding Units to elect more than one Director, such holder votes its Units as efficiently as possible for such candidates and such candidates receive no further votes from holders of Outstanding Units), or (iv) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. (b) For nominations to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iii), the Unitholder must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first anniversary (the “Anniversary”) of the date on which the Company first mailed its proxy materials for the preceding year’s annual meeting of Members; provided, however, that if the date of the annual meeting is advanced more than 30 days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iv), (i) the Unitholder must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the Unitholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such Unitholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding Units required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding Units reasonably believed by such Unitholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the Unitholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such Unitholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner, and whether either such Unitholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s Outstanding Units required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding Units to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”). (d) Notwithstanding anything in the second sentence of Section 11.13(b) or the second sentence of Section 11.13(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the Anniversary, then a Unitholder’s notice required by this Section 11.13 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 the Secretary at the principal executive offices of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section 11.4 of this Agreement. Subject to Section 7.1(d) of this Agreement, nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election pursuant to Section 11.8(d) in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units (or, in the case where such holder holds a sufficient number of Outstanding Units to elect more than one Director, such holder votes its shares as efficiently as possible for such candidates and such candidates receive no further votes from holders of Outstanding Units), or (iii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. Nominations by Unitholders of Persons for election to the Board of Directors may be made at such a special meeting of Members if the Unitholder’s notice as required by Section 11.13(b) or Section 11.13(c) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section 11.13(d)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meeting. (f) Except to the extent otherwise provided in Section 7.1(d) with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section 11.13 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Copano Energy, L.L.C.)

Notice of Member Business and Nominations. (a) ~~Subject to Section 7.1(d~~Annual Meetings of Members. (i) ~~of this Agreement, nominations~~ Nominations of Persons for election to the Board of Directors ~~of the Company~~ and the proposal of other business to be considered by the Members ~~may be made~~ at an annual meeting of Members may be made only (iA) pursuant to the Company’s notice of meeting ~~delivered pursuant to Section 11.4 of this Agreement~~(or any supplement thereto), (iiB) by or at the direction of the Board of ~~Directors~~Directors or any committee thereof authorized to do so, (~~iii~~C) ~~for nominations to the Board of Directors only,~~ by any ~~holder~~ Member of ~~Outstanding Units~~ the Company who (i) was a Member of record at the time of giving of notice provided for in this Section 14.11 and at the time of the annual meeting, (ii) is entitled to vote at the meeting, ~~who complied~~ and (iii) complies with the notice procedures and other requirements set forth in ~~paragraph (b)~~ this Agreement and applicable law, or (dD) pursuant to the terms of the Shareholder’s Agreement. In addition, if the proposal is made on behalf of a beneficial owner other than the Member of record, such beneficial owner must be the beneficial owner of Shares of the Company both at the time of giving of notice provided for in this Section 14.11 and at the time of the annual meeting. Section 14.11(a)(ii)(C) of this ~~Section 11.13~~ Agreement shall be the exclusive means for a Member to make nominations or submit other business (other than business brought properly under and ~~who was a Record Holder of a sufficient number of Outstanding Units as~~ in compliance with Rule 14a-8 of the ~~Record Date for such~~ Exchange Act, as may be amended from time to time) before an annual meeting ~~to elect one or more members to the Board of Directors assuming that such holder cast all~~ of the ~~votes it is entitled~~ Members, except as otherwise provided in Section 14.11(a)(ii)(D). Nothing in this Section 14.11 shall be deemed to ~~cast~~ affect any rights of Members to request inclusion of proposals or nominations in ~~such election~~ the Company’s proxy statement or proxy card pursuant to mandatory provisions of the Exchange Act and the rules and regulations thereunder, subject, in ~~favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units~~each case, ~~or (iv) by any holder of Outstanding Units who is entitled~~ to ~~vote at the meeting, who complied~~ compliance with ~~the notice procedures set forth in paragraphs (c) or (d)~~ those provisions of this ~~Section 11.13 and who is a Record Holder of Outstanding Units at the time~~ Agreement that are permitted under such ~~notice is delivered to the Secretary of the Company~~mandatory provisions. (bii) For any nominations or any other business to be properly brought before an annual meeting by a ~~Unitholder~~ Member, other than any of the Shareholders, pursuant to Section ~~11.13(a)(iii)~~14.11(a)(i)(C) of this Agreement, (A) the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of the ~~Company~~Company and such notice must be in proper form, as required by this Agreement, (B) in the case of business other than nominations, such other business must otherwise be a matter that would be proper for action by the Members pursuant to this Agreement, and (C) the record Member and the beneficial owner, if any, on whose behalf any such proposal or nomination is made, must have acted in accordance with the representations set forth in the Solicitation Statement required by this Agreement. To be timely, a ~~Unitholder~~Member’s ~~notice shall~~ notice, other than from any of the Shareholders, must be ~~delivered to~~ received by the Secretary of the Company at the principal executive offices of the Company not ~~less~~ earlier than ~~90 or more~~ the close of business on the 120th day and not later than ~~120 days~~ the close of business on the 90th day prior to the first anniversary ~~(the “Anniversary”)~~ of the ~~date on which the Company first mailed its proxy materials~~ Public Announcement for the immediately preceding ~~year’s~~ annual meeting (which anniversary, in the case of the first annual meeting of ~~Members~~Members following the close of the IPO, shall be deemed to be June 1, 2025); provided, however, that subject to the following sentence, if that the date of the annual meeting (other than the first annual meeting of Members following the close of the IPO) is ~~advanced~~ scheduled for a date that has changed by more than 30 days before or after such anniversary date, or if no annual meeting was held in the prior ~~to or delayed by more~~ year (other than ~~thirty (30) days after~~ the ~~anniversary~~ first annual meeting of Members following the close of the ~~preceding year’s annual meeting~~IPO), notice by the ~~Unitholder~~ Member to be timely must be so ~~delivered~~ received not earlier than the close of business on the 120th day and not later than the close of business on the later of ~~(x)~~ the ~~ninetieth~~ 90th day prior to such annual meeting ~~or (y)~~ or, if the ~~tenth~~ first Public Announcement of the date of such annual meeting is less than 90 days prior to the date of such annual meeting, the 10th day following the day on which ~~public announcement~~ Public Announcement of the date of such meeting is first ~~made~~made by the Company. ~~Such Unitholder~~In no event shall any adjournment, rescheduling or postponement of an annual meeting or the announcement thereof commence a new time period for the giving of a Member’s notice ~~shall set forth:~~ as described above. To be in proper form, a Member’s notice, other than any of the Shareholders, (whether given pursuant to this Section 14.11(a) or Section 14.11(b)) to the Secretary of the Company must: (A) set forth, as to the Member giving the notice and the beneficial owner, if any, on whose behalf the nomination or business is proposed (i) the name and address of such Member, as they appear on the Company’s books, and of such Member’s Member Associated Person (as defined in Section 14.11(d)), if any, (ii) (A) the class or series and number of Shares that are, directly or indirectly, owned beneficially and of record by such Member and any Member Associated Person, (B) any option, warrant, convertible security, Share appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of Shares or with a value derived in whole or in part from the value of any class or series of Shares, whether or not such instrument or right shall be subject to settlement in the underlying class or series of Shares or otherwise (a “Derivative Instrument”), directly or indirectly owned beneficially by such Member or by any Member Associated Person and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of Shares held by such Member or any Member Associated Person, (C) a complete and accurate description of any agreement, arrangement or understanding between or among such Member and such Member’s Member Associated Person and any other person or persons in connection with such Member’s director nomination and the name and address of any other person(s) or entity or entities known to the Member to support such nomination, (D) a description of any proxy, contract, arrangement, understanding or relationship pursuant to which such Member or any Member Associated Person has a right to vote, directly or indirectly, any Shares, (E) any short interest in any security of the Company held by such Member or any Member Associated Person (for purposes of this Agreement, a Person shall be deemed to have a “short interest” in a security if such Person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security), (F) any rights to Dividends on the Shares owned beneficially by such Member or by any Member Associated Person that are separated or separable from the underlying Shares, (G) any proportionate interest in Shares or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such Member or any Member Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner, and (H) any performance-related fees (other than an asset-based fee) that such Member or any Member Associated Person is entitled to based on any increase or decrease in the value of Shares or Derivative Instruments, if any, as of the date of such notice, including any such interests held by members of such Member’s or any Member Associated Person’s immediate family sharing the same household (which information shall be supplemented by such Member and any Member Associated Person, if any, not later than ten days after the Record Date for determining the Members entitled to vote at the meeting to disclose such ownership as of the Record Date; provided, that if such date is after the date of the meeting, not later than the day prior to the meeting), (iii) any other information relating to such Member and any Member Associated Person, if any, that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for, as applicable, the proposal or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, (iv) a representation that the Member is a holder of record of Shares entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to bring such nomination or other business before the meeting, and (v) a representation as to whether or not such Member or any Member Associated Person intends or is part of a group that intends to deliver a proxy statement or form of proxy to holders of at least the percentage of the voting power of the Company’s Outstanding Shares required to approve or adopt the proposal or, in the case of a nomination or nominations, at least the percentage of the voting power of the Company’s Outstanding Shares reasonably believed by the Member or Member Associated Person, as the case may be, to be sufficient to elect such nominee or nominees (such representation, a “Solicitation Statement”); (B) if the notice relates to any business other than a nomination of a director or directors that the Member proposes to bring before the meeting, set forth (i) a brief description of the business desired to be brought before the meeting, (ii) the exact text of the proposal or business (including the text of any resolution proposed for consideration and in the event that such business includes a proposal to amend this Agreement, the language of the proposed amendment), and the reasons for conducting such business at the meeting, (iii) any substantial interest (within the meaning of Item 5 of Schedule 14A under the Exchange Act) of such Member and Member Associated Person, if any, in such business, and (iv) a complete and accurate description of all agreements, arrangements and understandings between or among such Member and such Member Associated Person, if any, and any other Person or Persons or entity or entities (including their names and addresses) in connection with the proposal of such business by such Member; (C) set forth, as to each ~~Person~~ Person, if any, whom the ~~Unitholder~~ Member proposes to nominate for election or reelection ~~as a Director~~ to the Board of Directors (i) all information relating to such Person that is would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for election of ~~Directors, or is otherwise required,~~ directors in ~~each case~~ a contested election pursuant to ~~Regulation 14A under~~ Section 14 of the Exchange ~~Act,~~ Act and the rules and regulations promulgated thereunder (including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a ~~Director~~ director, if ~~elected~~ elected, for the full term for which such Person is standing for election), (ii) a description of all direct and ~~(B) as to~~ indirect compensation and other material monetary agreements, arrangements and understandings during the ~~Unitholder giving the notice~~ past three years, and ~~the beneficial owner~~any other material relationships, between or among such Member and Member Associated Person, if any, 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 Member making the nomination and any beneficial owner on whose behalf the nomination is made, if any, or ~~proposal is made~~ any Affiliate or associate thereof or Person acting in concert therewith, were the ~~name and address~~ “registrant” for purposes of such ~~Unitholder, as they appear on~~ rule and the ~~Company’s books~~nominee were a director or executive officer of such registrant, and of (iii) a representation that such ~~beneficial owner~~Person intends to serve a full term, ~~the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner. Such holder shall be entitled~~ if elected as a director; and (D) with respect to ~~nominate as many candidates~~ each nominee for election or reelection to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iv)Directors, include (i) a completed and signed questionnaire, representation and agreement in a form provided by the ~~Unitholder~~ Company, which form the Member must ~~have given timely notice thereof in writing to~~ request from the Secretary of the ~~Company,~~ Company in writing with no less than 7 days advance notice and (ii) a written representation and agreement (in the form provided by the Secretary of the Company upon written request) that such ~~business must be~~ Person (A) is not and will not become a ~~proper matter for Member action~~ party to (1) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any Person as to how such Person, if elected as a director of the Company, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Company or (2) 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 ~~this Agreement and the Delaware Act~~applicable law, (~~iii~~B) ~~if the Unitholder~~is not and will not become a party to any agreement, arrangement or ~~the beneficial owner on whose behalf~~ understanding with any ~~such proposal or nomination is made, has provided~~ Person other than the Company with ~~a Solicitation Notice~~respect to any direct or indirect compensation, ~~such Unitholder~~ reimbursement or ~~beneficial owner must,~~ indemnification in ~~the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding Units required under this Agreement~~ connection with service or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding Units reasonably believed by such Unitholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection action as a ~~Director all information relating to such Person~~ director that ~~is required to be~~ has not been disclosed ~~in solicitations of proxies for election of Directors~~therein, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the Unitholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such Unitholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) ~~as to the Unitholder giving the notice~~ in such person’s individual capacity and ~~the beneficial owner, if any,~~ on behalf of any Person on whose behalf the nomination ~~or proposal~~ is ~~made the name and address of such Unitholder~~being made, would be in compliance, if elected as they appear on the Company’s books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner, and whether either such Unitholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage director of the Company~~’s Outstanding Units~~ , and will comply with all applicable governance, conflict of interest, confidentiality and Share ownership and trading policies and guidelines of the Company. The Company may require any proposed nominee to furnish such other information as may reasonably be required ~~under this Agreement or Delaware law~~ by the Company to ~~carry~~ determine the ~~proposal or~~eligibility of such proposed nominee to serve as a director of the Company, in including information that could be relevant to a determination of whether such Person can be considered an Independent Director. (iii) A Member, other than any of the ~~case~~ Shareholders, providing notice of a nomination or ~~nominations~~proposal of other business to be brought before a meeting shall further update and supplement such notice, ~~a sufficient number of holders~~ if necessary, so that the information provided or required to be provided in such notice shall be true and correct (1) as of the ~~Company’s Outstanding Units to elect such nominee or nominees~~ Record Date for the meeting and (~~an affirmative statement of such intent, a “Solicitation Notice”). (d~~2) Notwithstanding anything in the second sentence of Section 11.13(b) or the second sentence of Section 11.13(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all as of the ~~nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days~~ date that is ten Business Days prior to the ~~Anniversary~~meeting or any adjournment, ~~then a Unitholder’s notice required by this Section 11.13 shall also be considered timely~~rescheduling or postponement thereof, ~~but only with respect to nominees for any new positions created by~~ and such ~~increase, if it~~ update and supplement shall be delivered to to, or mailed and received by, the Secretary of the Company at the principal executive offices of the Company not later than five Business Days after the close of business on the tenth day following the day on which such public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before Record Date for the meeting ~~pursuant~~ (in the case of the update and supplement required to ~~the Company’s notice of meeting pursuant to Section 11.4 of this Agreement. Subject to Section 7.1(d) of this Agreement, nominations of Persons for election to the Board of Directors may~~ be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (iiiDate) by any holder of Outstanding Units who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. Nominations by Unitholders of Persons for election to the Board of Directors may be made at such a special meeting of Members if the Unitholder’s notice as required by Section 11.13(b) or Section 11.13(c) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than seven Business Days prior to the ~~close of business~~ date for the meeting or any adjournment, rescheduling or postponement thereof, if practicable (or, if not practicable, on the ~~later~~ first practicable date prior to any adjournment, rescheduling or postponement thereof (in the case of the ~~seventieth day~~ update and supplement required to be made as of ten Business Days prior to ~~such special~~ the meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section 11.13(d)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meetingany adjournment, rescheduling or postponement thereof)). (f) Except to the extent otherwise provided in Section 7.1(d) with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section 11.13 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 1 contract

Samples: Limited Liability Company Agreement (LandBridge Co LLC)

Notice of Member Business and Nominations. (a) Subject to ~~Section 7.1(d)~~ Article V of this Agreement, nominations of Persons for election to the Board of Directors ~~of the Company~~ and the proposal of business to be considered by the Members may be made at an annual meeting of Common Members (i) pursuant to the Company’s notice of meeting delivered pursuant to Section ~~11.4~~ 11.2 of this Agreement, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section ~~11.13~~ and who was a Record Holder of a sufficient number of Outstanding ~~Units~~ Voting Shares as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding ~~Units~~Voting Shares, or (iv) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section ~~11.13~~ and who is a Record Holder of Outstanding ~~Units~~ Voting Shares at the time such notice is delivered to the Secretary of the Company. (b) For nominations to be properly brought before an annual meeting by a ~~Unitholder~~ Member pursuant to Section ~~11.13(a)(iii~~11.11(a)(iii), the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a ~~Unitholder~~Member’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than ~~90 or~~ ninety (90) days nor more than ~~120~~ one hundred twenty (120) days prior to the ~~first~~ anniversary ~~(the “Anniversary”)~~ of the date ~~on which~~ of the ~~Company first mailed its proxy materials for the~~ immediately preceding ~~year’s~~ annual meeting of Members; provided, however, ~~that~~ that, in the case of the Company’s first annual meeting, or if ~~the date of~~ the annual meeting is ~~advanced~~ called for a date that is more than ~~30 days prior to or delayed by more than thirty~~ twenty-five (3025) days before or after the anniversary of the ~~preceding~~ previous year’s annual meeting, notice by the ~~Unitholder~~ Member in order to be timely must be so ~~delivered~~ received not later than the close of business on the ~~later~~ tenth (10th) day following the earlier of ~~(x)~~ the ~~ninetieth day prior to such~~ date on which notice of the annual meeting was posted to the Members or ~~(y) the tenth day following~~ the day on which public ~~announcement~~ disclosure of the date of ~~such~~ the annual meeting is first ~~made~~made (which may be the date on which proxy materials for such meeting are first mailed). In no event shall the adjournment or postponement of an annual meeting, or the public announcement of such an adjournment or postponement, commence a new time period (or extend any time period) for the giving of a Member’s notice as described in this Section 11.11(b). Such ~~Unitholder~~Member’s notice shall set forth: (A) as to each Person whom the ~~Unitholder~~ Member proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each ~~case~~ case, pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the ~~Unitholder~~ Member giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such ~~Unitholder~~Member, as they appear on the Company’s books, and of such beneficial owner, the class or series and number of ~~Units~~ Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Member and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a ~~Unitholder~~ Member pursuant to Section ~~11.13(a)(iv~~11.11(a)(iv), (i) the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the ~~Unitholder~~Member, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such ~~Unitholder~~ Member or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding ~~Units~~ Shares required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding ~~Units~~ Voting Shares reasonably believed by such ~~Unitholder~~ Member or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such ~~Unitholder~~Member, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section ~~11.13~~11.11, the ~~Unitholder~~ Member or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a ~~Unitholder~~Member’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than ~~90 or~~ ninety (90) days nor more than ~~120~~ one hundred twenty (120) days prior to the anniversary of the date on which the Company first ~~Anniversary~~made publicly available (whether by mailing, by filing with the Commission or by posting on an internet web site) its proxy materials for the immediately preceding annual meeting of Common Members; provided, however, ~~that~~ that, in the ~~event that~~ case of the ~~date of~~ Company’s first annual meeting, or if the annual meeting is ~~advanced~~ called for a date that is more than thirty (30) days ~~prior to~~ before or ~~delayed by more than thirty (30) days~~ after the anniversary of the ~~preceding~~ previous year’s annual meeting, notice by the ~~Unitholder~~ Member in order to be timely must be so ~~delivered~~ received not later than the close of business on the ~~later~~ tenth (10th) day following the earlier of ~~(x)~~ the ~~ninetieth day prior to such~~ date on which notice of the annual meeting was posted to the Members or ~~(y) the tenth day following~~ the day on which public ~~announcement~~ disclosure of the date of ~~such~~ the annual meeting is first ~~made~~made (which may be the date on which proxy materials for such meeting are first made publicly available, whether by mailing, by filing with the Commission or by posting on an internet web site). In no event shall the public announcement or postponement of an annual meeting commence a new time period for the giving of a Member’s notice as described in this Section 11.11(c). Such ~~Unitholder~~Member’s notice shall set forth: (A) as to each Person whom the ~~Unitholder~~ Member proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the ~~Unitholder~~ Member proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such ~~Unitholder~~ Member and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the ~~Unitholder~~ Member giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such ~~Unitholder~~Member, as they appear on the Company’s books, and of such beneficial owner, the class or series and number of ~~Units~~ Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Member and such beneficial owner, and whether either such ~~Unitholder~~ Member or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s Outstanding ~~Units~~ Voting Shares required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding ~~Units~~ Shares to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”). This Section shall be the exclusive means for a Member to make business proposals before a special meeting of Members (other than matters properly bought under Rule 14a-8 under the Exchange Act and included in the Company’s notice of meeting). Subject to Rule 14a-8 under the Exchange Act, nothing in this Agreement shall be construed to permit any Member, or give any Member the right, to include or have disseminated or described in the Company’s proxy statement any business proposal. (d) Notwithstanding anything in the second sentence of Section ~~11.13(b~~11.11(b) or the ~~second~~ first sentence of Section ~~11.13(c~~11.11(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased (except as may be the result of a Series A Nonpayment Board Expansion) and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the ~~Anniversary~~anniversary of the date on which the Company first made publicly available (whether by mailing, by filing with the Commission or by posting on an internet web site) its proxy materials for the immediately preceding annual meeting of Common Members, then a ~~Unitholder~~Member’s notice required by this Section ~~11.13~~ 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 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 public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section ~~11.4~~ 11.2 of this Agreement. Subject to Section ~~7.1(d)~~ 5.6 of this Agreement, nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section ~~11.13~~ 11.11 and who was a Record Holder of a sufficient number of Outstanding ~~Units~~ Voting Shares as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding ~~Units~~Voting Shares, or (iii) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complies with the notice procedures set forth in paragraph (c) or (d) of this Section ~~11.13~~ and who is a Record Holder of Outstanding ~~Units~~ Voting Shares at the time such notice is delivered to the Secretary of the Company. Nominations by ~~Unitholders~~ Members of Persons for election to the Board of Directors may be made at such a special meeting of Members if the ~~Unitholder~~Member’s notice as required by Section ~~11.13(b~~11.11(b) or Section ~~11.13(c~~11.11(c) shall be delivered to the Secretary of the Company not earlier than the ~~ninetieth~~ 90th day prior to such special meeting and not later than the close of business on the later of the ~~seventieth~~ 70th day prior to such special meeting or the ~~tenth~~ 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding ~~Units~~ Voting Shares making nominations pursuant to Section ~~11.13(d)(ii~~11.11(e)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section ~~11.13(b~~11.11(b) for an annual meeting. (f) Except to the extent otherwise provided in ~~Section 7.1(d)~~ Article V with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section ~~11.13~~ shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this ~~Section 11.13~~Section. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section ~~11.13~~ and, if any proposed nomination or business is not in compliance with this ~~Section 11.13~~Section, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this ~~Section 11.13~~Section, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this ~~Section 11.13~~Section. Nothing in this Section ~~11.13~~ shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act. (h) Notwithstanding anything to the contrary, the provisions of this Article XI shall not entitle the Series A Holders to any voting, approval or consent rights or, except as otherwise provided by Section 2.7(b)(ii) or 2.7(c) of the Series A Preferred Share Designation, to participate in any meeting of the Members.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Fortress Transportation & Infrastructure Investors LLC)

Notice of Member Business and Nominations. (a) Subject to Section 7.1(d) of this Agreement, nominations of ~~Persons~~ persons for election to the Board of Directors of the Company and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s 's notice of meeting delivered pursuant to Section 11.4 of this Agreement, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election pursuant to Section 11.8(d) in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units (or, in the case where such holder holds a sufficient number of Outstanding Units to elect more than one Director, such holder votes its shares as efficiently as possible for such candidates and such candidates receive no further votes from holders of Outstanding Units), or (iv) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. (b) For nominations to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iii), the Unitholder must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a Unitholder’s 's notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 45 or more than ~~120~~ 75 days prior to the first anniversary (the “"Anniversary”") of the date on which the Company first mailed its proxy materials for the preceding year’s 's annual meeting of Members; provided, however, that if in the event that the date of the annual meeting is advanced more than 30 days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s 's annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s 's notice shall set forth: (A) as to each ~~Person~~ person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such ~~Person~~ person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such ~~Person’s~~ person's written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial ownerelected. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates, and (B) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company's books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner. (c) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iv), (i) the Unitholder must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the Unitholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such Unitholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s 's Outstanding Units required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s 's Outstanding Units reasonably believed by such Unitholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s 's notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 forty-five (45) or more than ~~120~~ seventy-five (75) days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s 's annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s 's notice shall set forth: (A) as to each ~~Person~~ person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such ~~Person~~ person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such ~~Person’s~~ person's written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the Unitholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such Unitholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s 's books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner, and whether either such Unitholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s 's Outstanding Units required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s 's Outstanding Units to elect such nominee or nominees (an affirmative statement of such intent, a “"Solicitation Notice”"). (d) Notwithstanding anything in the second sentence of Section 11.13(b) or the second sentence of Section 11.13(c) to the contrary, if in the event that the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 55 days prior to the Anniversary, ~~then~~ a Unitholder’s 's notice required by this Section 11.13 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 the Secretary at the principal executive offices of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s 's notice of meeting pursuant to Section 11.4 of this Agreement. Subject to Section 7.1(d) of this Agreement, nominations of ~~Persons~~ persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s 's notice of meeting (~~i) by~~ i)by or at the direction of the Board of Directors, (ii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election pursuant to Section 11.8(d) in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units (or, in the case where such holder holds a sufficient number of Outstanding Units to elect more than one Director, such holder votes its shares as efficiently as possible for such candidates and such candidates receive no further votes from holders of Outstanding Units), or (iii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. Nominations by Unitholders of ~~Persons~~ persons for election to the Board of Directors may be made at such a special meeting of Members if the Unitholder’s 's notice as required by Section 11.13(b) or Section 11.13(c) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section 11.13(d)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meeting. (f) ~~Except to the extent otherwise provided in Section 7.1(d) with respect to vacancies, only Persons~~ Only persons who are nominated in accordance with the procedures set forth in this Section 11.13 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Copano Energy, L.L.C.)

Notice of Member Business and Nominations. (a) ~~Subject to Section 7.1(d~~Annual Meetings of Members. (i) Nominations of ~~this Agreement, nominations of Persons~~ individuals for election to the Board of Directors ~~of the Company~~ and the proposal of other business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s 's notice of ~~meeting delivered pursuant to Section 11.4 of this Agreement~~meeting, (ii) by or at the direction of the Board of ~~Directors,~~ Directors or (iii) ~~for nominations to the Board of Directors only,~~ by any ~~holder~~ Member who was a Member of ~~Outstanding Units~~ record both at the time of giving of notice by the Member as provided for in this Section 11.10(a) and at the time of the annual meeting, who is entitled to vote at the ~~meeting,~~ meeting and who has complied with ~~the notice procedures set forth in paragraph (b) or (d) of~~ this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (iv) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company11.10(a). (bii) For nominations or other business to be properly brought before an annual meeting of Members by a ~~Unitholder~~ Member pursuant to clause (iii) of paragraph (a)(1) of this Section ~~11.13(a)(iii)~~11.10, the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of and such other business must otherwise be a proper matter for action by the ~~Company~~Members. To be timely, a ~~Unitholder’s~~ Member's notice shall set forth all information required under this Section 11.10 and shall be delivered to the Secretary at the principal executive ~~offices~~ office of the Company not ~~less~~ earlier than ~~90 or more~~ the 150th day nor later than ~~120 days~~ 5:00 p.m., Eastern Time on the 120th day prior to the first anniversary ~~(the “Anniversary”)~~ of the date ~~on which~~ of mailing of the ~~Company first mailed its proxy materials~~ notice for the preceding year’s 's annual ~~meeting of Members~~meeting; provided, however, that if in the event that the date of the annual meeting is advanced ~~more than 30 days prior to~~ or delayed by more than thirty (30) days ~~after~~ from the first anniversary of the date of the preceding year’s 's annual meeting, notice by the ~~Unitholder~~ Member to be timely must be so delivered not earlier than the 150th day prior to the date of such annual meeting and not later than ~~the close of business~~ 5:00 p.m., Eastern Time on the later of ~~(x)~~ the ~~ninetieth~~ 120th day prior to the date of such annual meeting or ~~(y)~~ the ~~tenth~~ 10th day following the day on which public announcement of the date of such meeting is first made. The public announcement of a postponement or adjournment of an annual meeting shall not commence a new time period for the giving of a Member's notice as described above. Such ~~Unitholder’s~~ Member's notice shall set ~~forth:~~ forth (Ai) as to each ~~Person~~ individual whom the ~~Unitholder~~ Member proposes to nominate for election or reelection as a ~~Director~~ Director, (A) the name, age, business address and residence address of such individual, (B) the class, series and number of any Shares that are beneficially owned by such individual, (C) the date such Shares were acquired and the investment intent of such acquisition and (D) all other information relating to such ~~Person~~ individual that is required to be disclosed in solicitations of proxies for election of ~~Directors~~Directors in an election contest (even if an election contest is not involved), or is otherwise required, in each case pursuant to Regulation 14A (or any successor provision) under the Exchange ~~Act,~~ Act and the rules thereunder (including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iv), (i) the Unitholder must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the Unitholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such Unitholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding Units required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding Units reasonably believed by such Unitholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s individual's written consent to being named in the proxy statement as a nominee and to serving as a Director if elected); (Bii) as to any other business that the ~~Unitholder~~ Member proposes to bring before the meeting, a ~~brief~~ description of ~~the business desired to be brought before the meeting~~such business, the reasons for ~~conducting~~ proposing such business at the meeting and any material interest in such business of such ~~Unitholder~~ Member and any Member Associated Person (as defined below), individually or in the aggregate, including any anticipated benefit to the Member and the ~~beneficial owner~~Member Associated Person therefrom; (iii) as to the Member giving the notice and any Member Associated Person, the class, series and number of all Shares which are owned by such Member and by such Member Associated Person, if any, ~~on whose behalf~~ and the ~~proposal is made~~nominee holder for, and number of, Xxxxxx owned beneficially but not of record by such Member and by any such Member Associated Person; ~~and~~ (Civ) as to the ~~Unitholder~~ Member giving the notice and ~~the beneficial owner~~any Member Associated Person covered by clauses (ii) or (iii) of this paragraph (2) of this Section 11.10(a), ~~if any, on whose behalf the nomination or proposal is made~~ the name and address of such ~~Unitholder~~Member, as they appear on the ~~Company’s books~~Membership List and current name and address, if different, and of such ~~beneficial owner~~Member Associated Person; and (v) to the extent known by the Member giving the notice, the ~~class~~ name and ~~number~~ address of ~~Units of~~ any other Member supporting the ~~Company which are owned beneficially and of record by such Unitholder and such beneficial owner, and whether either such Unitholder~~ nominee for election or ~~beneficial owner intends to deliver~~ reelection as a ~~proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s Outstanding Units required under this Agreement~~ Director or ~~Delaware law to carry~~ the proposal ~~or, in~~ of other business on the ~~case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding Units to elect such nominee or nominees (an affirmative statement~~ date of such ~~intent, a “Solicitation Notice”)~~Member's notice. (diii) ~~Notwithstanding anything in the second sentence~~ For purposes of Section 11.13(b) or the second sentence of Section 11.13(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the Anniversary, then a Unitholder’s notice required by this Section ~~11.13~~ 11.10, “Member Associated Person” of any Member 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 the Secretary at the principal executive offices of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section 11.4 of this Agreement. Subject to Section 7.1(d) of this Agreement, nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s notice of meeting mean (i) by any person controlling, directly or ~~at the direction of the Board of Directors~~indirectly, or acting in concert with, such Member, (ii) any Owner of Shares owned of record or beneficially by ~~any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13~~ such Member and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (iii) any person controlling, controlled by ~~any holder of Outstanding Units who is entitled to vote at the meeting, who complies~~ or under common control with ~~the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding Units at the time~~ such notice is delivered to the Secretary of the Company. Nominations by Unitholders of Persons for election to the Board of Directors may be made at such a special meeting of Members if the Unitholder’s notice as required by Section 11.13(b) or Section 11.13(c) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section 11.13(d)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meetingMember Associated Person. (f) Except to the extent otherwise provided in Section 7.1(d) with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section 11.13 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 1 contract

Samples: Limited Liability Company Operating Agreement (CNL Strategic Capital, LLC)

Notice of Member Business and Nominations. (a) Subject to ~~Section 7.1(d)~~ Article V of this Agreement, nominations of Persons for election to the Board of Directors of the Company and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s notice of meeting delivered pursuant to Section ~~11.4~~ 11.2 of this Agreement, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section ~~11.13~~ and who was a Record Holder of a sufficient number of Outstanding ~~Units~~ Voting Shares as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding ~~Units~~Voting Shares, or (iv) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section ~~11.13~~ and who is a Record Holder of Outstanding ~~Units~~ Voting Shares at the time such notice is delivered to the Secretary of the Company. (b) For nominations to be properly brought before an annual meeting by a ~~Unitholder~~ Member pursuant to Section ~~11.13(a)(iii),~~ 11.11(a)(iii) the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a ~~Unitholder~~Member’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than ~~90 or~~ ninety (90) days nor more than ~~120~~ one hundred twenty (120) days prior to the ~~first anniversary (the “Anniversary”)~~ date of the ~~date on which~~ one year anniversary of the ~~Company first mailed its proxy materials for the~~ immediately preceding ~~year’s~~ annual meeting of Members; provided, however, that if in the ~~date of~~ event that the annual meeting is ~~advanced more than 30 days prior to or delayed by more than thirty~~ called for a date that is not within twenty-five (3025) days before or after ~~the~~ such anniversary ~~of the preceding year’s annual meeting~~date, notice by the ~~Unitholder~~ Member in order to be timely must be so ~~delivered~~ received not later than the close of business on the ~~later of (x) the ninetieth day prior to such annual meeting or (y) the~~ tenth day following the day on which ~~public announcement~~ such notice of the date of the annual meeting was mailed or such public disclosure of the date of the annual meeting is was made, whichever first ~~made~~occurs. In no event shall the public announcement or postponement of an annual meeting commence a new time period for the giving of a Member’s notice as described in this Section 11.11(b). Such ~~Unitholder~~Member’s notice shall set forth: (A) as to each Person whom the ~~Unitholder~~ Member proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each ~~case~~ case, pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the ~~Unitholder~~ Member giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such ~~Unitholder~~Member, as they appear on the Company’s books, and of such beneficial owner, the class or series and number of ~~Units~~ Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Member and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a ~~Unitholder~~ Member pursuant to Section ~~11.13(a)(iv~~11.11(a)(iv), (i) the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the ~~Unitholder~~Member, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such ~~Unitholder~~ Member or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding ~~Units~~ Shares required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding ~~Units~~ Voting Shares reasonably believed by such ~~Unitholder~~ Member or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such ~~Unitholder~~Member, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section ~~11.13~~11.11, the ~~Unitholder~~ Member or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation ~~Notice. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company~~ Notice not less than ~~90 or~~ ninety (90) days nor more than ~~120~~ one hundred twenty (120) days prior to the ~~first Anniversary~~one year anniversary of the immediately preceding annual meeting of Members; provided, however, that in the event that the ~~date of the~~ annual meeting is ~~advanced more than thirty~~ called for a date that is not within twenty-five (3025) days ~~prior to~~ before or ~~delayed by more than thirty (30) days~~ after ~~the~~ such anniversary ~~of the preceding year’s annual meeting~~date, notice by the ~~Unitholder~~ Member in order to be timely must be so ~~delivered~~ received not later than the close of business on the ~~later of (x) the ninetieth day prior to such annual meeting or (y) the~~ tenth day following the day on which ~~public announcement~~ such notice of the date of the annual meeting was mailed or such public disclosure of the date of the annual meeting is was made, whichever first ~~made~~occurs. In no event shall the public announcement or postponement of an annual meeting commence a new time period for the giving of a Member’s notice as described in this Section 11.11(c). Such ~~Unitholder~~Member’s notice shall set forth: (A) as to each Person whom the ~~Unitholder~~ Member proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the ~~Unitholder~~ Member proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such ~~Unitholder~~ Member and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the ~~Unitholder~~ Member giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such ~~Unitholder~~Member, as they appear on the Company’s books, and of such beneficial owner, the class or series and number of ~~Units~~ Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Member and such beneficial owner, and whether either such ~~Unitholder~~ Member or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s Outstanding ~~Units~~ Voting Shares required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding ~~Units~~ Shares to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”). (d) Notwithstanding anything in the second sentence of Section ~~11.13(b~~11.11(b) or the ~~second~~ first sentence of Section ~~11.13(c~~11.11(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the ~~Anniversary~~anniversary date of the immediately preceding annual meeting of Members, then a ~~Unitholder~~Member’s notice required by this Section ~~11.13~~ 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 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 public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section ~~11.4~~ 11.2 of this Agreement. Subject to Section ~~7.1(d)~~ 5.6 of this Agreement, nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section ~~11.13~~ 11.11 and who was a Record Holder of a sufficient number of Outstanding ~~Units~~ Voting Shares as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding ~~Units~~Voting Shares, or (iii) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complies with the notice procedures set forth in paragraph (c) or (d) this Section ~~11.13~~ and who is a Record Holder of Outstanding ~~Units~~ Voting Shares at the time such notice is delivered to the Secretary of the Company. Nominations by ~~Unitholders~~ Members of Persons for election to the Board of Directors may be made at such a special meeting of Members if the ~~Unitholder~~Member’s notice as required by Section ~~11.13(b~~11.11(b) or Section ~~11.13(c~~11.11(c) shall be delivered to the Secretary of the Company not earlier than the ~~ninetieth~~ 90th day prior to such special meeting and not later than the close of business on the later of the ~~seventieth~~ 70th day prior to such special meeting or the ~~tenth~~ 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding ~~Units~~ Voting Shares making nominations pursuant to Section ~~11.13(d)(ii~~11.11(e)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section ~~11.13(b~~11.11(b) for an annual meeting. (f) Except to the extent otherwise provided in ~~Section 7.1(d)~~ Article V with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section ~~11.13~~ shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this ~~Section 11.13~~Section. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section ~~11.13~~ and, if any proposed nomination or business is not in compliance with this ~~Section 11.13~~Section, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this ~~Section 11.13~~Section, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this ~~Section 11.13~~Section. Nothing in this Section ~~11.13~~ shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Fortress Investment Group Holdings LLC)

Notice of Member Business and Nominations. (a) ~~Subject to Section 7.1(d) of this Agreement, nominations~~ Nominations of Persons for election to the Board of Directors of the Company and the proposal of business to be considered by the Members may be made at an annual meeting of Members (ia) pursuant to the Company’s notice of meeting delivered pursuant to Section 11.4 of this Agreement, (iib) by or at the direction of the Board of Directors, (~~iii~~c) for nominations to the Board of Directors only, by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (ivd) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. (b) For nominations to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iii), the Unitholder must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 120 days or more than ~~120~~ 150 days prior to the first anniversary (the “Anniversary”) of the date on which the Company first mailed its proxy materials for the preceding year’s annual meeting of Members; provided, however, that if the date of the annual meeting is advanced more than 30 days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (AE) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (BF) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination ~~or proposal~~ is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the ~~class and~~ Class And number of Units of the Company which are owned beneficially and of record by such 72 Unitholder and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section ~~11.13(a)(iv~~11.13(a), (iA) the Unitholder must have given timely notice thereof in writing to the Secretary of the Company, (iiB) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (~~iii~~C) if the Unitholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such Unitholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the ~~Company’s~~ Outstanding Units required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the ~~Company’s~~ Outstanding Units reasonably believed by such Unitholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (ivD) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 120 days or more than ~~120~~ 150 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (AE) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (BF) as to any other business that the Unitholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such Unitholder and the beneficial owner, if any, on whose behalf the proposal is made; and (CG) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the ~~class and~~ Class And number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner, and whether either such Unitholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the ~~Company’s~~ Outstanding Units required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding Units to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”).. 73 (d) Notwithstanding anything in the second sentence of Section 11.13(b) or the second sentence of Section 11.13(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the Anniversary, then a Unitholder’s notice required by this Section 11.13 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 the Secretary at the principal executive offices of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company. (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section 11.4 of this Agreement. Subject to Section 7.1(d~~) of this Agreement~~), nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected (C) pursuant to the Company’s notice of ~~meeting~~ meeting, (iD) by or at the direction of the Board of Directors, (iiE) by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (~~iii~~F) by any holder of Outstanding Units who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Company. Nominations by Unitholders of Persons for election to the Board of Directors may be made at such a special meeting of Members if the Unitholder’s notice as required by Section 11.13(b) or Section 11.13(c) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section ~~11.13(d)(ii~~11.13(e)(iii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meeting. (f) Except to the extent otherwise provided in Section 7.1(d) with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section 11.13 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded. (g) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.. ARTICLE XII

Appears in 1 contract

Samples: Limited Liability Company Agreement (Vanguard Natural Resources, LLC)

Notice of Member Business and Nominations. On or after the occurrence of a Cheniere Separation Event, notice of member business and nominations shall be conducted in accordance with the following: (a) Subject to Section 7.1(d~~) of this Agreement~~), nominations of Persons for election to the Board of Directors ~~of the Company~~ and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s notice of meeting delivered pursuant to Section ~~11.4 of this Agreement~~11.4, (ii) by or at the direction of the Board of Directors, (iii) for nominations to the Board of Directors only, by any holder of Outstanding ~~Units~~ Common Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding ~~Units~~ Common Shares as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding ~~Units~~Common Shares, or (iv) by any holder of Outstanding ~~Units~~ Common Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (c) or (d) of this Section 11.13 and who is a Record Holder of Outstanding ~~Units~~ Common Shares at the time such notice is delivered to the Secretary of the Company.; (b) For nominations to be properly brought before an annual meeting by a ~~Unitholder~~ Shareholder pursuant to Section 11.13(a)(iii), the ~~Unitholder~~ Shareholder must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a ~~Unitholder~~Shareholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first anniversary (the “Anniversary”) of the date on which the Company first mailed its proxy materials for the preceding year’s annual meeting of Members; provided, however, that if the date of the annual meeting is advanced more than 30 days prior to or delayed by more than ~~thirty (30)~~ 30 days after the anniversary of the preceding year’s annual meeting, notice by the ~~Unitholder~~ Shareholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such ~~Unitholder~~Shareholder’s notice shall set forth: (A) as to each Person whom the ~~Unitholder~~ Shareholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (B) as to the ~~Unitholder~~ Shareholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such ~~Unitholder~~Shareholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of ~~Units~~ Common Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Shareholder and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates.; (c) For nominations or other business to be properly brought before an annual meeting by a ~~Unitholder~~ Shareholder pursuant to Section 11.13(a)(iv), (i) the ~~Unitholder~~ Shareholder must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the ~~Unitholder~~Shareholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such ~~Unitholder~~ Shareholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding ~~Units~~ Common Shares required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding ~~Units~~ Common Shares reasonably believed by such ~~Unitholder~~ Shareholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such ~~Unitholder~~Shareholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the ~~Unitholder~~ Shareholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a ~~Unitholder~~Shareholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than ~~thirty (30)~~ 30 days prior to or delayed by more than ~~thirty (30)~~ 30 days after the anniversary of the preceding year’s annual meeting, notice by the ~~Unitholder~~ Shareholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such ~~Unitholder~~Shareholder’s notice shall set forth: (A) as to each Person whom the ~~Unitholder~~ Shareholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the ~~Unitholder~~ Shareholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such ~~Unitholder~~ Shareholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the ~~Unitholder~~ Shareholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such ~~Unitholder~~Shareholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of ~~Units~~ Common Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Shareholder and such beneficial owner, and whether either such ~~Unitholder~~ Shareholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s Outstanding ~~Units~~ Common Shares required under this Agreement or Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding ~~Units~~ Common Shares to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”).; (d) Notwithstanding anything in the second sentence of Section 11.13(b) or the second sentence of Section 11.13(c) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the Anniversary, then a ~~Unitholder~~Shareholder’s notice required by this Section 11.13 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 the Secretary at the principal executive offices of the Company not later than the close of business on the tenth day following the day on which such public announcement is first made by the Company.; (e) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section ~~11.4 of this Agreement~~11.4. Subject to Section 7.1(d~~) of this Agreement~~), nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding ~~Units~~ Common Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding ~~Units~~ Common Shares as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding ~~Units~~Common Shares, or (iii) by any holder of Outstanding ~~Units~~ Common Shares who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding ~~Units~~ Common Shares at the time such notice is delivered to the Secretary of the Company. Nominations by ~~Unitholders~~ Shareholders of Persons for election to the Board of Directors may be made at such a special meeting of Members if the ~~Unitholder~~Shareholder’s notice as required by Section 11.13(b) or Section 11.13(c) shall be delivered to the Secretary of the Company not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding ~~Units~~ Common Shares making nominations pursuant to Section 11.13(d)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meeting.; (f) Except to the extent otherwise provided in Section 7.1(d) with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section 11.13 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 11.13. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 11.13 and, if any proposed nomination or business is not in compliance with this Section 11.13, to declare that such defective proposal or nomination shall be disregarded.; and (g) Notwithstanding the foregoing provisions of this Section 11.13, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 11.13. Nothing in this Section 11.13 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Cheniere Energy Partners LP Holdings, LLC)

Notice of Member Business and Nominations. (a) Subject to ~~Section 7.1(d)~~ Article V of this Agreement and the nominating rights of the Class B Shareholder Committee under the Class B Shareholders Agreement, nominations of Persons for election to the Board of Directors of the Company and the proposal of business to be considered by the Members may be made at an annual meeting of Members (i) pursuant to the Company’s notice of meeting delivered pursuant to Section ~~11.4~~ 12.2 of this Agreement, (ii) by or at the direction of the Board of Directors, or (iii) for nominations to the Board of Directors only, by any holder of Outstanding Units who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d) of this Section 11.13 and who was a Record Holder of a sufficient number of Outstanding Units as of the Record Date for such meeting to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (iv) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraphs (cb) (or (db) and (c)), as applicable, of this Section ~~11.13~~ and who is a Record Holder of Outstanding ~~Units~~ Voting Shares at the time such notice is delivered to the Secretary of the Company. (b) For nominations or other business to be properly brought before an annual meeting by a ~~Unitholder~~ Member pursuant to Section ~~11.13(a)(iii~~12.11(a), the ~~Unitholder~~ Member must have given timely notice thereof in writing to the Secretary of the Company. To be timely, a ~~Unitholder~~Member’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than ~~90 or~~ ninety (90) days nor more than ~~120~~ one hundred twenty (120) days prior to the ~~first~~ anniversary ~~(the “Anniversary”)~~ of the date on which the Company first ~~mailed~~ made publicly available (whether by mailing, by filing with the Commission or by posting on an internet web site) its proxy materials for the immediately preceding ~~year’s~~ annual meeting of Members; provided, however, ~~that if~~ that, in the ~~date~~ case of the Company’s annual meeting to be held in 2008, or if any future annual meeting is ~~advanced more than 30 days prior~~ to ~~or delayed by~~ be held on a date that is more than thirty (30) days before or after the anniversary of the ~~preceding~~ previous year’s annual meeting, notice by the ~~Unitholder~~ Member in order to be timely must be so ~~delivered~~ received not later than the close of business on the ~~later of~~ tenth (x10th) ~~the ninetieth day prior to such annual meeting or (y) the tenth~~ day following the day on which public ~~announcement~~ disclosure of the date of ~~such~~ the annual meeting is first ~~made~~made (which may be the date on which proxy materials for such meeting are first mailed). In no event shall the public announcement or postponement of an annual meeting commence a new time period for the giving of a Member’s notice as described in this Section 12.11(b). Such ~~Unitholder~~Member’s notice Table of Contents shall set forth: (A) with respect to nominations for election or reelection of Directors, as to each Person whom the ~~Unitholder~~ Member proposes to ~~nominate for election or reelection as a Director~~ nominate, all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each ~~case~~ case, pursuant to Regulation 14A under the Exchange Act, including ~~such Person’s written consent~~ rules with respect to ~~being named in the proxy statement as a nominee~~ contested elections thereunder and to serving as a Director if elected and (B) as to the Unitholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made the name and address of such Unitholder, as they appear on the Company’s books, and of such beneficial owner, the class and number of Units of the Company which are owned beneficially and of record by such Unitholder and such beneficial owner. Such holder shall be entitled to nominate as many candidates for election to the Board of Directors as would be elected assuming such holder cast the precise number of votes necessary to elect each candidate and no more votes were cast by such holder or any other holder for such candidates. (c) For nominations or other business to be properly brought before an annual meeting by a Unitholder pursuant to Section 11.13(a)(iv), (i) the Unitholder must have given timely notice thereof in writing to the Secretary of the Company, (ii) such business must be a proper matter for Member action under this Agreement and the Delaware Act, (iii) if the Unitholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the Company with a Solicitation Notice, such Unitholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Company’s Outstanding Units required under this Agreement or Delaware law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Company’s Outstanding Units reasonably believed by such Unitholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such Unitholder, and must, in either case, have included in such materials the Solicitation Notice and (iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 11.13, the Unitholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice. To be timely, a Unitholder’s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 or more than 120 days prior to the first Anniversary; provided, however, that in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the Unitholder to be timely must be so delivered not later than the close of business on the later of (x) the ninetieth day prior to such annual meeting or (y) the tenth day following the day on which public announcement of the date of such meeting is first made. Such Unitholder’s notice shall set forth: (A) as to each Person whom the Unitholder proposes to nominate for election or reelection as a Director all information relating to such Person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, including such Person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (B) as to any other business that the ~~Unitholder~~ Member proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such ~~Unitholder~~ Member and the ~~beneficial owner~~Beneficial Owner, if any, on whose behalf the proposal is ~~made;~~ made and (C) as to the ~~Unitholder~~ Member giving the notice and the ~~beneficial owner~~Beneficial Owner, if any, on whose behalf the nomination or proposal is ~~made~~ made, the name and address of such ~~Unitholder~~Member and of any such Beneficial Owner, as they appear on the Company’s books, and ~~of such beneficial owner,~~ the class or series and number of ~~Units~~ Shares of the Company which are owned beneficially and of record by such ~~Unitholder~~ Member and any such ~~beneficial owner, and whether either such Unitholder or beneficial owner intends to deliver~~ Beneficial Owner. Proposals for actions must be a ~~proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the Company’s Outstanding Units required~~ proper matter for Member action under this Agreement or and the Delaware law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Company’s Outstanding Units to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”)Act. (dc) Notwithstanding anything in the second sentence of Section ~~11.13(b) or the second sentence of Section 11.13(c~~12.11(b) to the contrary, if the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Company at least 90 days prior to the ~~Anniversary~~anniversary of the date on which the Company first made publicly available (whether by mailing, by filing with the Commission or by posting on an internet web site) its proxy materials for the immediately preceding annual meeting of Members, then a ~~Unitholder~~Member’s notice required by this Section ~~11.13~~ 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 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~~ a public announcement regarding such increase is first made by the Company. (ed) Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting pursuant to Section ~~11.4~~ 12.2 of this Agreement. Subject to Section ~~7.1(d)~~ 5.6 of this Agreement, nominations of Persons for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected pursuant to the Company’s notice of meeting (i) by or at the direction of the Board of Directors, (ii) by any holder of Outstanding ~~Units~~ Voting Shares who is entitled to vote at the meeting, who complied with the notice procedures set forth in paragraph (b) or (d(b) and (c)), as applicable, of this Section ~~11.13~~ 12.11 and ~~who was a Record Holder of a sufficient number of Outstanding Units as of~~ has otherwise complied with Regulation 14A under the ~~Record Date for such meeting~~ Exchange Act, including rules with respect to elect one or more members to the Board of Directors assuming that such holder cast all of the votes it is entitled to cast in such election in favor of a single candidate and such candidate received no other votes from any other holder of Outstanding Units, or (iii) by any holder of Outstanding Units who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 11.13 and who is a Record Holder of Outstanding Units at the time such notice is delivered to the Secretary of the Companycontested elections thereunder. Nominations by ~~Unitholders~~ Members of Persons for election to the Board of Directors may be made at such a special meeting of Members if the ~~Unitholder~~Member’s notice as required by Section ~~11.13(b) or Section 11.13(c~~12.11(b) shall be delivered to the Secretary of the Company not earlier than the ~~ninetieth~~ 90th day prior to such special meeting and not later than the close of business on the later of (x) the ~~seventieth~~ 70th day prior to such special meeting or (y) the ~~tenth~~ 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Holders of Outstanding Units making nominations pursuant to Section 11.13(d)(ii) shall be entitled to nominate the number of candidates for election at such special meeting as provided in Section 11.13(b) for an annual meeting. (fe) Except to the extent otherwise provided in ~~Section 7.1(d)~~ Article V with respect to vacancies, only Persons who are nominated in accordance with the procedures set forth in this Section ~~11.13~~ shall be eligible to serve as Directors and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this ~~Section 11.13~~Section. Except as otherwise provided herein or required by law, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section ~~11.13~~ and, if any proposed nomination or business is not in compliance with this ~~Section 11.13~~Section, to declare that such defective proposal or nomination shall be disregarded. (gf) Notwithstanding the foregoing provisions of this ~~Section 11.13~~Section, a Member shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this ~~Section 11.13~~Section. Nothing in this Section ~~11.13~~ shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.. Table of Contents

Appears in 1 contract

Samples: Limited Liability Company Agreement (Och-Ziff Capital Management Group LLC)

Common use of Notice of Member Business and Nominations Clause in Contracts