Michigan
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1-9804
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38-2766606
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(State or other jurisdiction
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(Commission
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(IRS Employer
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of incorporation)
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File Number)
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Identification No.)
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3350 Peachtree Road NE, Suite 150
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Atlanta,
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Georgia
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30326
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(Address of principal executive offices) (Zip Code)
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Registrant's telephone number, including area code:
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404
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978-6400
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Common Shares, par value $0.01
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PHM
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New York Stock Exchange
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Series A Junior Participating Preferred Share Purchase Rights
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New York Stock Exchange
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•
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Provide that the individual presiding at a meeting of shareholders has the authority to adjourn and reconvene the meeting at any other time, and provide that the Board of Directors has the authority to postpone, reschedule or cancel regular meetings of shareholders and certain special meetings of shareholders;
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•
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Update and enhance the request procedures and related information requirements in connection with calling shareholder requested special meetings of shareholders, shareholder action by written consent and shareholder nominations of directors;
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•
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Provide and clarify procedures and information requirements for shareholders to propose business other than shareholder nominations of directors to be brought before an annual meeting of shareholders;
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•
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Modify the deadlines for submission of notices in connection with shareholder nominations of directors and other shareholder proposals for annual meetings of shareholders;
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•
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Establish clear rules about the Board of Directors’ and the presiding individual’s rights and authority to determine the rules of procedures for, and regulate the conduct of, shareholder meetings;
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Establish the Board of Directors’ authority to designate an individual to preside over a meeting of shareholders in the absence of the Chairman of the Board of Directors;
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Remove the listing of duties of the committees of the Board of Directors of the Company;
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Modify the notice requirements for special meetings of the Board of Directors to provide greater flexibility;
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•
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Modify and enhance the Company’s ability to omit shareholder nominees from its proxy materials in certain circumstances; and
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•
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Make other clarifying and conforming changes.
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PULTEGROUP, INC.
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Date:
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May 11, 2020
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By:
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/s/ Todd N. Sheldon
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Name:
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Todd N. Sheldon
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Title:
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Executive Vice President, General Counsel and Corporate Secretary
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a.
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SECTION 2.7 Special Meetings. Special meetings of the shareholders for any purpose or purposes, unless otherwise prescribed by statuteapplicable law or by the Articles of Incorporation, may be called by the Board of Directors, the President, or the Secretary, and shall be called by the Board of Directors, the President, or the Secretary upon a request in writing therefor stating the purpose or purposes thereof signed by a majority of the Board of Directors or by the holders of not less than twenty percent of the capital stock of the Corporation issued and outstanding and entitled to vote thereat. Only business germane to the purpose or purposes for which the meeting was called shall be transacted at a special meeting of shareholders(the “Requisite Percentage”; each written request by holders of the Requisite Percentage, a “Special Meeting Request” and special a meeting requested pursuant to a Special Meeting Request, a “Shareholder Requested Special Meeting”) or by a majority of the Board of Directors.
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b.
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In order for a Shareholder Requested Special Meeting to be called, one or more Special Meeting Requests must be signed by the Requisite Percentage of shareholders submitting such request and by each of the beneficial owners, if any, on whose behalf the Special Meeting Request is being made (each, a “Requesting Party”) and must be delivered to the Secretary. The Special Meeting Request(s) shall be delivered to the Corporate Secretary at the principal executive offices of the Corporation by nationally recognized private overnight courier service, return receipt requested. Each Special Meeting Request shall (i) set forth a statement of the specific purpose(s) of the Shareholder Requested Special Meeting and the matters proposed to be acted on at it; (ii) bear the date of signature of each such shareholder signing the Special Meeting Request; (iii) set forth (A) the name and address, as they appear in the Corporation's books, of each shareholder signing such request and the beneficial owners, if any, on whose behalf such requests is made and (B) the class or series and number of shares of capital stock of the Corporation that are, directly or indirectly, owned of record or beneficially (within the meaning of Rule 13d-3 under the Securities and Exchange Act of 1934, as amended (the “Exchange
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c.
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In determining whether Special Meeting Requests have met the requirements of this Section 2.7, multiple Special Meeting Requests will be considered together only if (i) each Special Meeting Request identifies substantially the same purpose or purposes of the requested special meeting and substantially the same matters proposed to be acted on at the Shareholder Requested Special Meeting (in each case as determined in good faith by the Board of Directors), and (ii) such Special Meeting Requests have been delivered to the Corporate Secretary within 60 days of the delivery to the Corporate Secretary of the earliest dated Special Meeting Request relating to such item(s) of business.
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d.
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If none of the shareholders who submitted a Special Meeting Request appears or sends a qualified representative to present the item of business submitted by the shareholders for consideration at the Shareholder Requested Special Meeting, such item of business shall not be submitted for vote of the shareholders at such Shareholder Requested Special Meeting, notwithstanding that proxies in respect of such vote may have been received by the Corporation or such shareholder(s).
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e.
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Except as provided in the next sentence, a Shareholder Requested Special Meeting shall be held at such date, time and place within or without the State of Michigan as may be fixed by the Board of Directors; provided, however, that the date of any such Shareholder Requested Special Meeting shall be not more than ninety (90) days after the date on which valid Special Meeting Request(s) constituting the Requisite Percent are delivered to the Secretary of the Corporation (such date of delivery being the “Delivery Date”). Notwithstanding the foregoing, the Secretary of the Corporation shall not be required to call a Shareholder Requested Special Meeting if (i) the Board of Directors calls an annual meeting of shareholders, or a special meeting of shareholders at which a Similar Item (as defined in this Section 2.7(e)) is to be presented pursuant to the notice of such meeting, in either case to be held not later than sixty (60) days after the Delivery Date; (ii) the Delivery Date is during the period commencing ninety (90) days prior to the first anniversary of the date of the immediately preceding annual meeting and ending on the earlier of (A) the date of the next annual meeting and (B) thirty (30) days after the first anniversary of the date of the immediately preceding annual meeting; or (iii) the Special Meeting Request(s) (A) contain an identical or substantially similar item (as determined in good faith by the Board of Directors, a “Similar Item”) to an item that was presented at any meeting of shareholders held not more than one hundred and twenty (120) days before the Delivery Date; (B) relate to an item of business that is not a proper subject for action by the shareholders under applicable law; (C) were made in a manner that involved a violation of Regulation 14A under the Exchange Act or other applicable law or would cause the Corporation to violate any law; or (D) do not comply with the provisions of this Section 2.7. The procedures set forth in this Section 2.7 are the exclusive means by which items of business may be raised by shareholders at any special meeting of shareholders.
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a.
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No business may be transacted at an annual meeting of shareholders, other than business that is either (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors (or any duly authorized committee thereof), (ii) otherwise properly brought before the annual meeting by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (iii) otherwise properly brought before the annual
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b.
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In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a shareholder, such shareholder must have given timely notice thereof in proper written form to the Secretary of the Corporation. To be timely, a shareholder's notice to the Corporate Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred twenty (120) days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the annual meeting is convened more than thirty (30) days before or more than sixty (60) days after such anniversary date, or if no annual meeting was held in the preceding year, notice by the shareholder to be timely must be so received no more than one hundred twenty (120) days prior to such annual meeting nor less than the later of (i) ninety (90) days prior to such annual meeting and (ii) ten (10) days after the earlier of (A) the day on which notice of the date of the meeting was mailed or otherwise provided by the Corporation or (B) the day on which public disclosure of the date of the meeting was made. To be in proper written form, a shareholder's notice to the Corporate Secretary must set forth as to each matter such shareholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting; (ii) the name and record address of each Proposing Party; (iii)(A) the class or series and number of shares of capital stock of the Corporation which are owned, directly or indirectly, beneficially or of record by each Proposing Party and each Shareholder Associated Person (B) a description of any Derivative Instrument directly or indirectly owned beneficially by any Proposing Party or any Shareholder Associated Person, (C) a description of any proxy, contract, arrangement, understanding or relationship pursuant to which any Proposing Party or any Shareholder Associated Person has a right to vote (or act by consent with respect to) any class or series of shares of the Corporation, (D) any Short Interest held by or involving any Proposing Party or any Shareholder Associated Person, (E) any rights to dividends on the shares
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a.
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A shareholder providing notice or a request under Section 2.7, Section 2.11 or Section 3.10 shall update such notice or request, if necessary, so that the information provided or required to be provided in such notice or request shall continue to be true and correct (i) as of the record date for the meeting and (ii) as of the date that is ten business days prior to the meeting (or any postponement or adjournment thereof), and such update shall be delivered to, and received by, the Secretary of the Corporation at the principal executive office of the Corporation not later than five business days after the record date for the meeting (in the case of an update required to be made as of the record date) and not later than seven business days prior to the date for the
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b.
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Notwithstanding anything in these By-Laws to the contrary, except as otherwise determined by the individual presiding over the meeting, if the shareholder giving notice as provided for in Section 2.7, 2.11 or Section 3.10 does not appear in person or by proxy at such special or regular meeting to present the proposed business or proposed nominee, as applicable, such proposed business or proposed nominee shall not be considered at the meeting.
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(a)
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Amend the Articles of Incorporation.
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(b)
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Adopt an agreement of merger or consolidation, conversion, or share exchange.
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(c)
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Recommend to the shareholders the sale, lease or exchange of all or substantially all of the Corporations property and assets.
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(d)
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Recommend to the shareholders a dissolution of the Corporation or a revocation of a dissolution.
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(e)
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Amend the By-Laws of the Corporation.
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(f)
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Fill vacancies in the Board.
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(g)
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Fix compensation of the directors for serving on the Board or on a committee.
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(h)
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Declare a dividend.
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(i)
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Authorize the issuance of stock.
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1.
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Recommending to the Board of Directors the engaging and discharging of the independent auditors.
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2.
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Directing and supervising special investigations.
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3.
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Reviewing with the independent auditors the plan (including the scope, fee and timing) of the audit and reviewing with the independent auditors the results of the auditing engagement.
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4.
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Approving of each professional service to be provided by the independent auditors prior to the performance of such service, including the fee arrangement for such services.
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5.
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Reviewing with the independent auditors and management the proposed annual earnings report before the annual earnings report is released to the public.
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6.
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Approving any change in accounting principles and practices and any significant proposed adjustments to any financial statements.
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7.
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Reviewing with the independent auditors and management the Corporation’s policies and procedures with respect to, and the adequacy of, the Corporation’s internal auditing, accounting and financial controls.
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8.
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Reviewing on a periodic basis the Corporation’s business practices policy and inquiring on any deviations from that policy.
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9.
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Reviewing with the independent auditors management’s response to recommendations made by the auditors to management as a result of the audit or otherwise, including any recommendations relating to internal accounting controls, choice of accounting principles or management systems and determining the extent to which the recommendations by the independent auditors have been implemented.
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10.
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Performing any other functions assigned to the Audit Committee by the Board of Directors.
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1.
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Recommendation to the Board of Directors of the compensation arrangements for senior management and directors.
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2.
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Recommendation to the Board of compensation plans in which officers or directors are eligible to participate.
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3.
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Granting of options under the Company’s Stock Option Plans.
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a.
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Nominations for the election of directors may only be made by (i) the Board of Directors or (ii) any shareholder of the Corporation (A) who is a shareholder of record on the date of the giving of the notice provided for in this Section 3.10 and on the record date for the determination of shareholders entitled to notice of and to vote at the annual meeting, (B) who is entitled to vote at such annual meeting and (C) who complies with the notice procedures set forth in this Section 3,10. In addition to the other requirements set forth herein, a shareholder may not present a nominee for election at an annual meeting unless such shareholder, and any beneficial owner on whose behalf such nomination is made, acted in a manner consistent with the representations made in the Nominee Solicitation Representation (as defined below). In addition to any other applicable requirements, for a nomination to be made by a shareholder of the Corporation, such shareholder must have given timely notice thereof in proper written form to the Secretary. To be timely, a shareholder’s notice must be received by the Secretary at the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred twenty (120) days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the annual meeting is convened more than thirty (30) days before or more than sixty (60) days after such anniversary date, or if no annual meeting was held in the preceding year, notice by the shareholder to be timely must be so received no more than one hundred twenty (120) days prior to such annual meeting nor less than the later of (i) ninety (90) days prior to such annual meeting and (ii) ten (10) days after the earlier of (A) the day on which notice of the date of the meeting was mailed or provided by the Corporation or (B) the day on which public disclosure of the date of the meeting was made.
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b.
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a. As provided in Section 3.3, nominations for the election of directors shall be made by the Nominating Committee of the Board of Directors or by any shareholder entitled to vote in the election of directors generally. However, any shareholder entitled to vote in the election of directors generally may nominate one or more persons for election as directors at a meeting only if written notice or notice by electronic transmission of such shareholder’s intent to make such nomination or nominations has been given, either by personal delivery or by United States mail, postage prepaid, to the Corporate Secretary of the Corporation not later than 60 days in advance of such meeting (except that, if public disclosure of the meeting is made less than 70 days prior to the meeting, the notice need only be received within 10 days following such public disclosure). Each such notice shalldescribed in Section 3.10(a) must set forth: (i) as to each person whom the shareholder proposes to nominate for election as a director (1A) the name, age, business address and residence address of the person, (2B) the principal occupation or employment of the person, (3C) the class or series and number of common shares of capital stock of the Corporation which are owned, directly or indirectly, beneficially or of record by such person and (4D) any other information relating to the person or any affiliate or associate thereof that would be required to be disclosed in solicitations of proxies for election of directors, or is otherwise required, pursuant to Section 14 of the Exchange Act; andProxy Rules; (ii) as to the shareholder giving the notice (1A) the name and address, as they appear on the Corporation’s books, of such shareholder and the name and address of the beneficial owner, if any, on whose behalf the nomination is made (each, a “Nominating Party”), (2B) the class or series and number of common shares of capital stock of the Corporation which are owned, directly or indirectly, beneficially or of record by such shareholder or such beneficial owner each Nominating Party and each Shareholder Associated Person on the date of such shareholder’s notice, (3) whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on behalf of, or any other agreement, arrangement or understanding (including any short position or any borrowing or lending of shares) has been made, the effect or intent of which is to mitigate loss to or manage risk or benefit of share price changes for, or toC) a description of any Derivative Instrument directly or indirectly owned beneficially by each Proposing Party or any Shareholder Associated Person, (D) a description of any proxy, contract, arrangement, understanding or relationship pursuant to which any Nominating Party or any Shareholder Associated Person has a right to vote (or act by consent with respect to) any class or series of shares of the Corporation, (D) any Short Interest held by or involving any Nominating Party or any Shareholder Associated Person, (E) any rights to dividends on the shares of the Corporation owned beneficially by any Nominating Party or any Shareholder Associated Person that are separated or separable from the underlying shares of the Corporation, (F) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which any Nominating Party or any Shareholder Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner of such general or limited partnership, (G) any performance-related fees (other than an asset-based fee) that any Nominating Party or any Shareholder Associated Person is entitled to based on any increase or decrease in the voting power of, such shareholder or beneficial owner with respect to any common sharevalue of shares of the Corporation (which information shall be updated by such shareholder and beneficial owner, if any, as of the record date of the meeting not later than 10 days after the record date for the meetingor Derivative
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a.
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Definitions. For purposes of this Section 3.11, the following terms shall have the following meanings:
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i.
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“Compensation Arrangement” shall mean any direct or indirect compensatory, payment or other financial agreement, arrangement or understanding with any person or entity other than the Corporation, including, without limitation, any agreement, arrangement or understanding with respect to any direct or indirect compensation, reimbursement or indemnification in connection with candidacy, service or action as a nominee or as a director.
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ii.
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“Eligible Shareholder” shall mean a person who has either (1) been a record holder of the shares of common shares of the Corporation used to satisfy the eligibility requirements in 3.11.d continuously for the required three-year period or (2) provides to the Secretary of the Corporation, within the time period referred to in Section 3.11(e), evidence of continuous Ownership of such shares for such three-year period from one or more securities intermediaries.
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iii.
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“Maximum Number” shall mean that number of directors constituting the greater of (x) two and (y) 20% of the total number of directors of the Corporation on the last day on which a Nomination Notice may be submitted pursuant to this Section 3.11 (rounded down to the nearest whole number), which number shall be reduced as set forth in Section 3.11.c.i.
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iv.
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“Minimum Number” shall mean 3% of the number of outstanding common shares of the Corporation as of the most recent date for which such amount is given in any filing by the Corporation with the Securities and Exchange Commission prior to the submission of the Nomination Notice.
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v.
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“Nominating Shareholder” shall mean any Eligible Shareholder or group of up to 20 shareholders (a “Nominator Group”) that, collectively as a group, satisfy the requirements to qualify as an Eligible Shareholder, that (1) has (individually and collectively, in the case of a Nominator Group) satisfied all applicable conditions and complied with all applicable procedures set forth in this Section 3.11 (including, without limitation, the timely submission of a Nomination Notice that meets the requirements set forth in this Section 3.11), and (2) has nominated a Shareholder Nominee.
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vi.
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“Nomination Notice” shall mean all information and documents that a Nominating Shareholder is required to submit to the Secretary of the Corporation pursuant to Section 3.11f.
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vii.
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“Own,” “Owned” or “Owning” shall mean those outstanding common shares of the Corporation with respect to which a shareholder possesses both:
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1.
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the full voting and investment rights pertaining to the shares; and
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2.
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the full economic interest in (including the opportunity for profit and risk of loss on) such shares;
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A.
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sold by such shareholder or any of its affiliates in any transaction that has not been settled or closed, including any short sale;
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B.
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borrowed by such shareholder or any of its affiliates for any purposes or purchased by such shareholder or any of its affiliates pursuant to an agreement to resell; or
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C.
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subject to any option, warrant, forward contract, swap, contract of sale, other derivative or similar agreement entered into by such shareholder or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of outstanding common shares of the Corporation, in any such case which instrument or agreement has, or is intended to have, or if exercised by either party thereto would have, the purpose or effect of reducing in any manner, to any extent or at any time in the future, such shareholder’s or affiliates’ full right to vote or direct the voting of any such shares, and/or hedging, offsetting or altering to any degree gain or loss arising from the full economic Ownership of such shares by such shareholder or affiliate, other than any such arrangements solely involving a national or multi-national multi-industry market index.
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viii.
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“Shareholder Nominee” shall mean any person nominated for election pursuant to this Section 3.11.
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ix.
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“Stock Exchange Rules” shall mean the rules of any stock exchange on which the Corporation’s securities are traded.
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x.
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“Voting Commitment” shall mean any agreement, arrangement or understanding with, and any commitment or assurance to, any person or entity as to how a person, if elected as a director of the Corporation, will act or vote on any issue or question.
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i.
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the name of any Shareholder Nominee, which shall also be included on the Corporation’s form of proxy and ballot;
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ii.
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disclosure about the Shareholder Nominee and the Nominating Shareholder required under the rules of the Securities and Exchange Commission or other applicable law to be included in the proxy statement;
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iii.
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any statement included by the Nominating Shareholder in the Nomination Notice for inclusion in the proxy statement in support of the Shareholder Nominee’s election to the Board of Directors (subject, without limitation, to Section 3.11.g), if such statement does not exceed 500 words; and
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iv.
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any other information that the Corporation or the Board of Directors determines, in its discretion, to include in the proxy statement relating to the nomination of the Shareholder Nominee, including, without limitation, any statement in opposition to
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i.
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The Corporation shall not be required to include in the proxy statement for an annual meeting of shareholders more Shareholder Nominees than the Maximum Number. In the event that one or more vacancies for any reason occurs on the Board of Directors after the deadline set forth in Section 3.11.e but before the date of the annual meeting and the Board of Directors resolves to reduce the size of the board in connection therewith, the Maximum Number shall be calculated based on the number of directors in office as so reduced. The Maximum Number for a particular annual meeting shall be reduced by:
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1.
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Shareholder Nominees whose nominations for election at such annual meeting are subsequently withdrawn;
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2.
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Shareholder Nominees who the Board of Directors itself decides to nominate for election at such annual meeting;
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3.
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any director candidate for which the Corporation shall have received one or more valid shareholder notices (whether or not withdrawn) nominating director candidates pursuant to Section 3.10, other than any such director referred to in this clause 3 who at the time of such annual meeting will have served as director continuously, as a nominee of the Board of Directors, for at least two annual terms, but only to the extent the maximum number after such reduction with respect to this clause 3 equals or exceeds one;
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4.
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the number of incumbent directors or director candidates (including, without limitation, candidates who are not Shareholder Nominees) that in either case will be included in the Corporation’s proxy statement for an annual meeting of shareholders as an unopposed (by the Corporation) nominee pursuant to any agreement, arrangement or other understanding with any shareholder or group of shareholders (other than any such agreement, arrangement or understanding entered into in connection with an acquisition of common shares of the Corporation, by such shareholder or group of shareholders, from the Corporation), other than any such director referred to in this clause 4 who at the time of such annual meeting will have served as a director continuously, as a nominee of the Board of Directors, for at least two annual terms, but
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5.
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the number of incumbent directors who had been Shareholder Nominees at any of the preceding two annual meetings of shareholders and whose reelection at the upcoming annual meeting is being recommended by the Board of Directors.
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ii.
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Any Nominating Shareholder submitting more than one Shareholder Nominee for inclusion in the Corporation’s proxy materials pursuant to this Section 3.11 shall rank such Shareholder Nominees based on the order that the Nominating Shareholder desires such Shareholder Nominees to be selected for inclusion in the Corporation’s proxy materials. In the event that the number of Shareholder Nominees submitted by Nominating Shareholders pursuant to this Section 3.11 exceeds the Maximum Number, the highest ranking Shareholder Nominee who meets the requirements of this Section 3.11 from each Nominating Shareholder will be selected for inclusion in the Corporation’s proxy materials until the Maximum Number is reached, going in order of the amount (largest to smallest) of common shares of the Corporation each Nominating Shareholder Owns, as disclosed in its respective Nomination Notice submitted to the Corporation. This selection process will continue with the next highest ranked nominees as many times as necessary, following the same order each time, until the Maximum Number is reached.
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i.
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An Eligible Shareholder or Nominator Group may submit a nomination in accordance with this Section 3.11 only if the person or group (in the aggregate) has continuously Owned at least the Minimum Number (as adjusted for any stock splits, stock dividends or similar events) of common shares of the Corporation throughout the three-year period preceding and including the date of submission of the Nomination Notice, and continues to Own at least the Minimum Number of shares through the date of the annual meeting. The following shall be treated as one Eligible Shareholder or one member of a Nominator Group if such Eligible Shareholder or member of a Nominator Group shall provide together with the Nomination Notice documentation that demonstrates compliance with the following criteria:
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1.
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funds under common management and investment control;
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2.
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funds under common management and funded primarily by the same employer; or
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3.
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a “family of investment companies” or a “group of investment companies” (each as defined in the Investment Company Act of 1940, as amended).
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ii.
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No shareholder shall be permitted to be in more than one Nominator Group, and if any shareholder appears as a member of more than one Nominator Group, or as a member of a Nominator Group and as a Nominating Shareholder without any such group, such shareholder shall be deemed to be a member of only the Nominator Group that has the largest Ownership position as reflected in the Nomination Notice and is not permitted to act as a Nominating Shareholder separate from such Nominator Group.
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i.
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documentary evidence in the form of one or more written statements from the record holder of the shares (and from each intermediary through which the shares are or have been held during the requisite three-year holding period, provided that each such intermediary must be a participant in the Depository Trust Company or an affiliate of a participant in the Depository Trust Company) verifying and certifying that, as of a date within seven calendar days prior to the date of the Nomination Notice, the Nominating Shareholder Owns, and has continuously Owned for the preceding three years, the Minimum Number of shares, and the Nominating Shareholder’s agreement to provide, within five business days after the record date
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ii.
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an undertaking to provide immediate notice if the Nominating Shareholder ceases to Own the Minimum Number of shares prior to the date of the annual meeting;
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iii.
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a copy of the Schedule 14N (or any successor form) relating to the Shareholder Nominee, completed and filed with the Securities and Exchange Commission by the Nominating Shareholder as applicable, in accordance with Securities and Exchange Commission rules;
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iv.
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the written consent of each Shareholder Nominee to being named in the Corporation’s proxy statement, form of proxy and ballot as a nominee and to serving as a director if elected;
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v.
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a written notice of the nomination of such Shareholder Nominee that includes the following additional information, agreements, representations and warranties by the Nominating Shareholder (including, for the avoidance of doubt, each member of a Nominator Group):
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1.
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the information and other deliverables that would be required to be set forth in a shareholder’s notice of nomination pursuant to Section 3.10 of this Article III, as if the Nominating Shareholder were proposing a director nominee under that section;
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2.
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to the extent not included in the response to paragraph (1) above, a detailed description of all direct and indirect material compensation and other monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among the Nominating Shareholder, on the one hand, and each Shareholder Nominee, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 promulgated under Regulation S−K (or its successor Item) if the Nominating Shareholder were the “registrant” for purposes of such item and the Shareholder Nominee were a director or executive officer of such registrant;
|
3.
|
the details of any relationship that existed within the past three years and that would have been described pursuant to Item 6(e) of Schedule 14N (or any successor item) if it existed on the date of submission of the Schedule 14N;
|
4.
|
a representation and warranty that the Nominating Shareholder did not acquire, and is not holding, securities of the Corporation for the purpose or with the effect of influencing or changing control of the Corporation;
|
5.
|
a representation and warranty that the Nominating Shareholder has not nominated and will not nominate for election to the Board of Directors at the annual meeting any person other than such Nominating Shareholder’s Shareholder Nominee(s);
|
6.
|
a representation and warranty that the Nominating Shareholder has not engaged in and will not engage in a “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act with respect to the annual meeting, other than with respect to such Nominating Shareholder’s Shareholder Nominee(s) or any nominee of the Board of Directors;
|
7.
|
a representation and warranty that the Nominating Shareholder will not use or distribute any proxy card other than the Corporation’s proxy card in soliciting shareholders in connection with the election of a Shareholder Nominee at the annual meeting;
|
8.
|
a representation and warranty that the Shareholder Nominee’s candidacy or, if elected, board membership would not violate applicable state or federal law or Stock Exchange Rules ;
|
9.
|
a representation and warranty that the Shareholder Nominee: (A) qualifies as independent under the Stock Exchange Rules and any publicly disclosed standards used by the Board of Directors in determining and disclosing the independence of the directors; and (B) is not and has not been subject to any event specified in Rule 506(d)(1) of Regulation D (or any successor rule) under the Securities Act of 1933 or Item 401(f) of Regulation S-K (or any successor rule) under the Exchange Act, without reference to whether the event is material to an evaluation of the ability or integrity of the Shareholder Nominee;
|
10.
|
a representation and warranty that the Nominating Shareholder satisfies the eligibility requirements set forth in Section 3.11.d.;
|
11.
|
a representation and warranty that the Nominating Shareholder will continue to satisfy the eligibility requirements described in Section 3.11.d. through the date of the annual meeting;
|
12.
|
the details of any position of the Shareholder Nominee as an officer or director of any competitor (that is, any entity that provides products or services that compete with or are alternatives to the principal products produced or services provided by the Corporation or its affiliates) of the Corporation, within the three years preceding the submission of the Nomination Notice;
|
13.
|
if desired, a statement for inclusion in the proxy statement in support of the Shareholder Nominee’s election to the Board of Directors; provided, that any such statement shall not exceed 500 words and shall fully comply with Section 14 of the Exchange Act; and;
|
14.
|
in the case of a nomination by a Nominator Group, the designation by all group members of one group member that is authorized to act on behalf of all group members with respect to matters relating to the nomination, including withdrawal of the nomination;
|
vi.
|
an executed agreement (which form of agreement shall be provided to the Nominating Shareholder by the Secretary upon written request), which must be submitted within ten days of the Nominating Shareholder’s first submission of the Nomination Notice, pursuant to which the Nominating Shareholder (including each member of a Nominator Group) agrees:
|
1.
|
to comply with all applicable laws, rules and regulations in connection with the nomination, solicitation and election;
|
2.
|
to file any written solicitation or other communication with the Corporation’s shareholders relating to one or more of the Corporation’s directors or director nominees or any Shareholder Nominee with the Securities and Exchange Commission;
|
3.
|
to assume all liability stemming from any action, suit or proceeding concerning any actual or alleged legal or regulatory violation arising out of any communication by the Nominating Shareholder or the Shareholder Nominee nominated by such Nominating Shareholder with the Corporation, its shareholders or any other person, including, without limitation, the Nomination Notice, in each case, in connection the Shareholder Nominee’s and the Nominating Shareholder’s efforts to elect the Shareholder Nominee pursuant to this Section 3.11;
|
4.
|
to indemnify and hold harmless (jointly with all other members of a Nominator Group, if applicable) the Corporation and each of its directors, officers and employees individually against any liability, loss, damages, expenses or other costs (including reasonable attorneys’ fees) incurred in connection with any action, suit or proceeding (whether threatened, pending or completed), whether legal, judicial, administrative or investigative, against the Corporation or any of its directors, officers or employees arising out of or relating to a failure or alleged failure of the Nominating Shareholder or Shareholder Nominee to comply with, or any breach or alleged breach of, its, or his or her, as applicable, obligations, agreements or representations under or pursuant to this Section 3.11, or otherwise arising out of any nomination, solicitation or other activity by any Eligible Shareholder or any
|
5.
|
to promptly (and in any event within 48 hours of discovering such misstatement or omission) notify the Corporation and any other recipient of any misstatement or omission if information included in the Nomination Notice, or any other communication by the Nominating Shareholder (including with respect to any member of a Nominator Group) with the Corporation, its shareholders or any other person in connection with the nomination or election ceases to be true and accurate in all material respects (or omits a material fact necessary to make the statements made not misleading), and promptly notify the Corporation and any other recipient of the information that is required to correct the misstatement or omission; and
|
6.
|
in the event that the Nominating Shareholder (including any member of a Nominator Group) has failed to continue to satisfy the eligibility requirements described in Section 3.11.d., to promptly notify the Corporation;
|
vii.
|
an executed questionnaire (which form of questionnaire shall be provided to the Nominating Shareholder by the Secretary upon written request), which must be submitted within ten days of the Nominating Shareholder’s first submission of the Nomination Notice;
|
viii.
|
an executed agreement (which form of agreement shall be provided to the Nominating Shareholder by the Secretary upon written request), which must be submitted within ten days of the Nominating Shareholder’s first submission of the Nomination Notice, by the Shareholder Nominee:
|
1.
|
to provide to the Corporation such other information as it may reasonably request;
|
2.
|
that the Shareholder Nominee has read and agrees, if elected, to serve as a member of the Board of Directors, to adhere to the Corporation’s Corporate Governance Principles and Policies on Business Conduct and any other policies and guidelines applicable to directors; and
|
3.
|
that the Shareholder Nominee is not and will not become a party to (1) any Compensation Arrangement in connection with such person’s nomination or candidacy for director and/or such person’s service or action as a director of the Corporation that has not been disclosed to the Corporation prior to or concurrently with the Nominating Shareholder’s submission of the Nomination Notice, or (2) any Voting Commitment that has not been
|
i.
|
If, after the deadline for submitting a Nomination Notice as set forth in Section 3.11.e a Nominating Shareholder becomes ineligible or withdraws its nomination or a Shareholder Nominee becomes ineligible or unwilling to serve on the Board of Directors, whether before or after the mailing of the definitive proxy statement, the Corporation:
|
1.
|
shall not be required to include in its proxy statement or on any ballot or form of proxy the Shareholder Nominee or any successor or replacement nominee proposed by the Nominating Shareholder or by any other Nominating Shareholder; and
|
2.
|
may otherwise communicate to its shareholders, including without limitation by amending or supplementing its proxy statement or ballot or form of proxy, that the Shareholder Nominee will not be included as a Shareholder Nominee in the proxy statement or on any ballot or form of proxy and will not be voted on at the annual meeting.
|
ii.
|
Notwithstanding anything to the contrary contained in this Section 3.11, the Corporation may omit from its proxy materials any Shareholder Nominee, and any information concerning such Shareholder Nominee (including a Nominating Shareholder’s statement in support), and in such case no vote on such Shareholder Nominee will occur (notwithstanding that proxies in respect of such vote may have been received by the Corporation), and the Nominating Shareholder may not, after the last day on which a Nomination Notice would be timely, cure in any way any defect preventing the nomination of the Shareholder Nominee, if:
|
1.
|
the Nominating Shareholder has engaged in a “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act with respect to the annual meeting, other than with respect to such Nominating Shareholder’s Shareholder Nominee(s) or any nominee of the Board of Directors;
|
2.
|
the Nominating Shareholder or the designated lead group member of a Nominator Group, as applicable, or any qualified representative thereof, does not appear at the annual meeting to present the nomination submitted in accordance with this Section 3.11;
|
3.
|
the Board of Directors, acting in good faith, determines that such Shareholder Nominee’s nomination or election to the Board of Directors would result in the Corporation violating or failing to be in compliance with these By-laws or the Corporation’s Certificate of Incorporation or any applicable law, rule or regulation to which the Corporation is subject, including the Stock Exchange Rules;
|
1.
|
the Shareholder Nominee is not independent under the Stock Exchange Rules and any publicly disclosed standards used by the Board of Directors in determining and disclosing the independence of the directors, in each case as determined by the Board of Directors;
|
2.
|
4. the Shareholder Nominee was nominated for election to the Board of Directors pursuant to this Section 3.11 at one of the Corporation’s two preceding annual meetings of shareholders and either withdrew from or became ineligible or unavailable for election at such annual meeting or received a vote of less than 25% of the common shares entitled to vote for such Shareholder Nominee;
|
3.
|
5. the Shareholder Nominee has been, within the past three years, an officer or director of a competitor, as defined for purposes of Section 8 of the Clayton Antitrust Act of 1914, as amended; or
|
4.
|
6. the Nominating Shareholder has failed to continue to satisfy the eligibility requirements described in Section 3.11.d, any of the representations and
|
iii.
|
Notwithstanding anything to the contrary contained in this Section 3.11, the Corporation may omit from its proxy statement, or may supplement or correct, any information, including all or any portion of the statement in support of the Shareholder Nominee included in the Nomination Notice, if
|
1.
|
such information is not true in all material respects or omits a material statement necessary to make the statements made not misleading;
|
2.
|
such information directly or indirectly impugns the character, integrity or personal reputation of, or directly or indirectly makes charges concerning improper, illegal or immoral conduct or associations, without factual foundation, with respect to, any individual, Corporation, partnership, association or other entity, organization or governmental authority; or
|
3.
|
the inclusion of such information in the proxy statement would otherwise violate the Securities bandand Exchange Commission proxy rules or any other applicable law, rule or regulation.
|
iv.
|
The Corporation may solicit against, and include in the proxy statement its own statement relating to, any Shareholder Nominee.
|
|
(a)
|
|
the Record Date for determining the shareholders of record entitled to notice of, or to vote at, a meeting of shareholders shall be at the close of business on the day on which notice of the meeting is given, or, if no notice is given, at the close of business on the day next preceding the day on which the meeting is held;
|
|
|
|
|
|
(b)
|
|
the Record Date for determining shareholders entitled to express consent to an action in writing without a meeting, shall be as set forth in Section 2.9; and
|
|
|
|
|
|
(c)
|
|
the Record Date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors first adopts a resolution relating thereto.
|
|
(a)
|
|
Waiver of objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting.
|
|
|
|
|
|
(b)
|
|
Waiver of objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented.
|
a.
|
Special meetings of the shareholders for any purpose or purposes, unless otherwise prescribed by applicable law or by the Articles of Incorporation, may be called by the Board of Directors, the President, or the Secretary, and shall be called by the Board of Directors, the President, or the Secretary upon a request in writing therefor stating the purpose or purposes thereof signed by the holders of not less than twenty percent of the capital stock of the Corporation issued and outstanding and entitled to vote thereat (the “Requisite Percentage”; each written request by holders of the Requisite Percentage, a “Special Meeting Request” and special a meeting requested pursuant to a Special Meeting Request, a “Shareholder Requested Special Meeting”) or by a majority of the Board of Directors.
|
b.
|
In order for a Shareholder Requested Special Meeting to be called, one or more Special Meeting Requests must be signed by the Requisite Percentage of shareholders submitting such request and by each of the beneficial owners, if any, on whose behalf the Special Meeting Request is being made (each, a “Requesting Party”) and must be delivered to the Secretary. The Special Meeting Request(s) shall be delivered to the Corporate Secretary at the principal executive offices of the Corporation by nationally recognized private overnight courier service, return receipt requested. Each Special Meeting Request shall (i) set forth a statement of the specific purpose(s) of the Shareholder Requested Special Meeting and the matters proposed to be acted on at it; (ii) bear the date of signature of each such shareholder signing the Special Meeting Request; (iii) set forth (A) the name and address, as they appear in the Corporation's books, of each shareholder signing such request and the beneficial owners, if any, on whose behalf such requests is made and (B) the class or series and number of shares of capital stock of the Corporation that are, directly or indirectly, owned of record or beneficially (within the meaning of Rule 13d-3 under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”)) by each Requesting Party and by each Shareholder Associated Person; (iv) set forth a description of all arrangements or understandings between any Requesting Party, any Shareholder Associated Person and/or any other person or persons (including their names) in connection with the proposal of such business by such shareholder and any material interest of each Requesting Party and each Shareholder Associated Person in the business desired to be brought before the Shareholder Requested Special Meeting; (v) include documentary evidence that the shareholders requesting the special meeting own the Requisite Percentage as of the date on which the Special Meeting Request is delivered to the Secretary of the Corporation; provided, however, that if the shareholders are not the beneficial owners of the shares constituting all or part of the Requisite Percentage, then to be valid, the Special Meeting Request must also include documentary evidence (or, if not simultaneously provided with the Special Meeting Request, such documentary evidence must be delivered to the Secretary of the Corporation within ten (10) days
|
c.
|
In determining whether Special Meeting Requests have met the requirements of this Section 2.7, multiple Special Meeting Requests will be considered together only if (i) each Special Meeting Request identifies substantially the same purpose or purposes of the requested special meeting and substantially the same matters proposed to be acted on at the Shareholder Requested Special Meeting (in each case as determined in good faith by the Board of Directors), and (ii) such Special Meeting Requests have been delivered to the Corporate Secretary within 60 days of the delivery to the Corporate Secretary of the earliest dated Special Meeting Request relating to such item(s) of business.
|
d.
|
If none of the shareholders who submitted a Special Meeting Request appears or sends a qualified representative to present the item of business submitted by the shareholders for consideration at the Shareholder Requested Special Meeting, such item of business shall not be submitted for vote of the shareholders at such Shareholder Requested Special Meeting, notwithstanding that proxies in respect of such vote may have been received by the Corporation or such shareholder(s).
|
e.
|
Except as provided in the next sentence, a Shareholder Requested Special Meeting shall be held at such date, time and place within or without the State of Michigan as may be fixed by the Board of Directors; provided, however, that the date of any such Shareholder Requested Special Meeting shall be not more than ninety (90) days after the date on which valid Special Meeting Request(s) constituting the Requisite Percent are delivered to the Secretary of the Corporation (such date of delivery being the “Delivery Date”). Notwithstanding the foregoing, the Secretary of the Corporation shall not be required to call a Shareholder Requested Special Meeting if (i) the Board of Directors calls an annual meeting of shareholders, or a special meeting of shareholders at which a Similar Item (as defined in this Section 2.7(e)) is to be presented pursuant to the notice of such meeting, in either case to be held not later than sixty (60) days after the Delivery Date; (ii) the Delivery Date is during the period commencing ninety (90) days prior to the first anniversary of the date of the immediately preceding annual meeting and ending on the earlier of (A) the date of the next annual
|
a.
|
No business may be transacted at an annual meeting of shareholders, other than business that is either (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors (or any duly authorized committee thereof), (ii) otherwise properly brought before the annual meeting by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (iii) otherwise properly brought before the annual meeting by any shareholder of the Corporation (A) who is a shareholder of record on the date of the giving of the notice provided for in this Section 2.11 and on the record date for the determination of shareholders entitled to vote at such annual meeting, (B) who complies with the notice procedures set forth in this Section 2.11 and (C) who is entitled to vote at such annual meeting. In addition to the other requirements set forth in this Section 2.11, a shareholder may not transact any business at an annual meeting unless (1) such shareholder and any beneficial owner on whose behalf such business is proposed (each, a “Proposing Party”) acted in a manner consistent with the representation made in the Business
|
b.
|
In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a shareholder, such shareholder must have given timely notice thereof in proper written form to the Secretary of the Corporation. To be timely, a shareholder's notice to the Corporate Secretary must be delivered to or mailed and received at the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred twenty (120) days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the annual meeting is convened more than thirty (30) days before or more than sixty (60) days after such anniversary date, or if no annual meeting was held in the preceding year, notice by the shareholder to be timely must be so received no more than one hundred twenty (120) days prior to such annual meeting nor less than the later of (i) ninety (90) days prior to such annual meeting and (ii) ten (10) days after the earlier of (A) the day on which notice of the date of the meeting was mailed or otherwise provided by the Corporation or (B) the day on which public disclosure of the date of the meeting was made. To be in proper written form, a shareholder's notice to the Corporate Secretary must set forth as to each matter such shareholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting; (ii) the name and record address of each Proposing Party; (iii)(A) the class or series and number of shares of capital stock of the Corporation which are owned, directly or indirectly, beneficially or of record by each Proposing Party and each Shareholder Associated Person (B) a description of any Derivative Instrument directly or indirectly owned beneficially by any Proposing Party or any Shareholder Associated Person, (C) a description of any proxy, contract, arrangement, understanding or relationship pursuant to which any Proposing Party or any Shareholder Associated Person has a right to vote (or act by consent with respect to) any class or series of shares of the Corporation, (D) any Short Interest held by or involving any Proposing Party or any Shareholder Associated Person, (E) any rights to dividends on the shares of the Corporation owned beneficially by any Proposing Party or any Shareholder Associated Person that are separated or separable from the underlying shares of the Corporation, (F) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which any Proposing Party or any Shareholder Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner of such general or limited partnership, (G) any performance-related fees (other than an asset-based fee) that any Proposing Party or any Shareholder Associated Person is entitled to based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, if any, including, without limitation, any such interests held by members of such Proposing Party’s or such Shareholder Associated Person’s immediate family sharing the same household and (H) any significant equity interests or any Derivative Instruments or Short Interests
|
a.
|
A shareholder providing notice or a request under Section 2.7, Section 2.11 or Section 3.10 shall update such notice or request, if necessary, so that the information provided or required to be provided in such notice or request shall continue to be true and correct (i) as of the record date for the meeting and (ii) as of the date that is ten business days prior to the meeting (or any postponement or adjournment thereof), and such update shall be delivered to, and received by, the Secretary of the Corporation at the principal executive office of the Corporation not later than five business days after the record date for the meeting (in the case of an update required to be made as of the record date) and not later than seven business days prior to the date for the meeting, if practicable or, if not practicable, on the first practicable date prior to the special meeting or any adjournment or postponement thereof (in the case of an update required to be made as of ten business days prior to the meeting or any adjournment or postponement thereof).
|
b.
|
Notwithstanding anything in these By-Laws to the contrary, except as otherwise determined by the individual presiding over the meeting, if the shareholder giving notice as provided for in Section 2.7, 2.11 or Section 3.10 does not appear in person or by proxy at such special or regular meeting to present the proposed business or proposed nominee, as applicable, such proposed business or proposed nominee shall not be considered at the meeting.
|
|
(a)
|
|
Amend the Articles of Incorporation.
|
|
|
|
|
|
(b)
|
|
Adopt an agreement of merger, conversion, or share exchange.
|
|
|
|
|
|
(c)
|
|
Recommend to the shareholders the sale, lease or exchange of all or substantially all of the Corporations property and assets.
|
|
|
|
|
|
(d)
|
|
Recommend to the shareholders a dissolution of the Corporation or a revocation of a dissolution.
|
|
|
|
|
|
(e)
|
|
Amend the By-Laws of the Corporation.
|
|
|
|
|
|
(f)
|
|
Fill vacancies in the Board.
|
|
|
|
|
|
(g)
|
|
Fix compensation of the directors for serving on the Board or on a committee.
|
|
|
|
|
|
(h)
|
|
Declare a dividend.
|
|
|
|
|
|
(i)
|
|
Authorize the issuance of stock.
|
a.
|
Nominations for the election of directors may only be made by (i) the Board of Directors or (ii) any shareholder of the Corporation (A) who is a shareholder of record on the date of the giving of the notice provided for in this Section 3.10 and on the record date for the determination of shareholders entitled to notice of and to vote at the annual meeting, (B) who is entitled to vote at such annual meeting and (C) who complies with the notice procedures set forth in this Section 3,10. In addition to the other requirements set forth herein, a shareholder may not present a nominee for election at an annual meeting unless such shareholder, and any beneficial owner on whose behalf such nomination is made, acted in a manner consistent with the representations made in the Nominee Solicitation Representation (as defined below). In addition to any other applicable requirements, for a nomination to be made by a shareholder of the Corporation, such shareholder must have given timely notice thereof in proper written form to the Secretary. To be timely, a shareholder’s notice must be received by the Secretary at the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred twenty (120) days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the annual meeting is convened more than thirty (30) days before or more than sixty (60) days after such anniversary date, or if no annual meeting was held in the preceding year, notice by the shareholder to be timely must be so received no more than one hundred twenty (120) days prior to such annual meeting nor less than the later of (i) ninety (90) days prior to such annual meeting and (ii) ten (10) days after the earlier of (A) the day on which notice of the date of the meeting was mailed or provided by the Corporation or (B) the day on which public disclosure of the date of the meeting was made.
|
b.
|
Each such notice described in Section 3.10(a) must set forth: (i) as to each person whom the shareholder proposes to nominate for election as a director (A) the name, age, business address and residence address of the person, (B) the principal occupation or employment of the person, (C) the class or series and number of shares of capital stock of the Corporation which are owned, directly or indirectly, beneficially or of record by such person and (D) any other information relating to the person or any affiliate or associate thereof that would be required to be disclosed in solicitations of proxies for election of directors, or is otherwise required, pursuant to the Proxy Rules; (ii) as to the shareholder giving the notice (A) the name and address, as they appear on the Corporation’s books, of such shareholder and the name and address of the beneficial owner, if any, on whose behalf the nomination is made (each, a “Nominating Party”), (B) the class or series and number of shares of capital stock of the Corporation which are owned, directly or indirectly, beneficially or of record by each Nominating Party and each Shareholder Associated Person on the date of such shareholder’s notice, (C) a description of any Derivative Instrument directly or indirectly owned beneficially by each Proposing Party or any Shareholder Associated Person, (D) a description of any proxy, contract, arrangement, understanding or relationship pursuant to which any Nominating Party or any Shareholder Associated Person has a right to vote (or act by consent with respect to) any class or series of shares of the Corporation, (D) any Short Interest held by or involving any Nominating Party or any Shareholder Associated Person, (E) any rights to dividends on the shares of the Corporation owned beneficially by any Nominating Party or any Shareholder Associated Person that are separated or separable from the underlying shares of the Corporation, (F) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a
|
a.
|
Definitions. For purposes of this Section 3.11, the following terms shall have the following meanings:
|
i.
|
“Compensation Arrangement” shall mean any direct or indirect compensatory, payment or other financial agreement, arrangement or understanding with any person or entity other than the Corporation, including, without limitation, any agreement, arrangement or understanding with respect to any direct or indirect compensation, reimbursement or indemnification in connection with candidacy, service or action as a nominee or as a director.
|
ii.
|
“Eligible Shareholder” shall mean a person who has either (1) been a record holder of the common shares of the Corporation used to satisfy the eligibility requirements in 3.11.d continuously for the required three-year period or (2) provides to the Secretary of the Corporation, within the time period referred to in Section 3.11(e), evidence of continuous Ownership of such shares for such three-year period from one or more securities intermediaries.
|
iii.
|
“Maximum Number” shall mean that number of directors constituting the greater of (x) two and (y) 20% of the total number of directors of the Corporation on the last day on which a Nomination Notice may be submitted pursuant to this Section 3.11 (rounded down to the nearest whole number), which number shall be reduced as set forth in Section 3.11.c.i.
|
iv.
|
“Minimum Number” shall mean 3% of the number of outstanding common shares of the Corporation as of the most recent date for which such amount is given in any filing by the Corporation with the Securities and Exchange Commission prior to the submission of the Nomination Notice.
|
v.
|
“Nominating Shareholder” shall mean any Eligible Shareholder or group of up to 20 shareholders (a “Nominator Group”) that, collectively as a group, satisfy the requirements to qualify as an Eligible Shareholder, that (1) has (individually and collectively, in the case of a Nominator Group) satisfied all applicable conditions and complied with all applicable procedures set forth in this Section 3.11 (including, without
|
vi.
|
“Nomination Notice” shall mean all information and documents that a Nominating Shareholder is required to submit to the Secretary of the Corporation pursuant to Section 3.11f.
|
vii.
|
“Own,” “Owned” or “Owning” shall mean those outstanding common shares of the Corporation with respect to which a shareholder possesses both:
|
1.
|
the full voting and investment rights pertaining to the shares; and
|
2.
|
the full economic interest in (including the opportunity for profit and risk of loss on) such shares;
|
A.
|
sold by such shareholder or any of its affiliates in any transaction that has not been settled or closed, including any short sale;
|
B.
|
borrowed by such shareholder or any of its affiliates for any purposes or purchased by such shareholder or any of its affiliates pursuant to an agreement to resell; or
|
C.
|
subject to any option, warrant, forward contract, swap, contract of sale, other derivative or similar agreement entered into by such shareholder or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of outstanding common shares of the Corporation, in any such case which instrument or agreement has, or is intended to have, or if exercised by either party thereto would have, the purpose or effect of reducing in any manner, to any extent or at any time in the future, such shareholder’s or affiliates’ full right to vote or direct the voting of any such shares, and/or hedging, offsetting or altering to any degree gain or loss arising from the full economic Ownership of such shares by such shareholder or affiliate, other than any such arrangements solely involving a national or multi-national multi-industry market index.
|
viii.
|
“Shareholder Nominee” shall mean any person nominated for election pursuant to this Section 3.11.
|
ix.
|
“Stock Exchange Rules” shall mean the rules of any stock exchange on which the Corporation’s securities are traded.
|
x.
|
“Voting Commitment” shall mean any agreement, arrangement or understanding with, and any commitment or assurance to, any person or entity as to how a person, if elected as a director of the Corporation, will act or vote on any issue or question.
|
i.
|
the name of any Shareholder Nominee, which shall also be included on the Corporation’s form of proxy and ballot;
|
ii.
|
disclosure about the Shareholder Nominee and the Nominating Shareholder required under the rules of the Securities and Exchange Commission or other applicable law to be included in the proxy statement;
|
iii.
|
any statement included by the Nominating Shareholder in the Nomination Notice for inclusion in the proxy statement in support of the Shareholder Nominee’s election to the Board of Directors (subject, without limitation, to Section 3.11.g), if such statement does not exceed 500 words; and
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iv.
|
any other information that the Corporation or the Board of Directors determines, in its discretion, to include in the proxy statement relating to the nomination of the Shareholder Nominee, including, without limitation, any statement in opposition to the nomination, information relating to any Compensation Arrangement and/or Voting Commitment, and any of the information provided pursuant to this Section 3.11.
|
i.
|
The Corporation shall not be required to include in the proxy statement for an annual meeting of shareholders more Shareholder Nominees than the Maximum Number. In the event that one or more vacancies for any reason occurs on the Board of Directors
|
1.
|
Shareholder Nominees whose nominations for election at such annual meeting are subsequently withdrawn;
|
2.
|
Shareholder Nominees who the Board of Directors itself decides to nominate for election at such annual meeting;
|
3.
|
any director candidate for which the Corporation shall have received one or more valid shareholder notices (whether or not withdrawn) nominating director candidates pursuant to Section 3.10, other than any such director referred to in this clause 3 who at the time of such annual meeting will have served as director continuously, as a nominee of the Board of Directors, for at least two annual terms, but only to the extent the maximum number after such reduction with respect to this clause 3 equals or exceeds one;
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4.
|
the number of incumbent directors or director candidates (including, without limitation, candidates who are not Shareholder Nominees) that in either case will be included in the Corporation’s proxy statement for an annual meeting of shareholders as an unopposed (by the Corporation) nominee pursuant to any agreement, arrangement or other understanding with any shareholder or group of shareholders (other than any such agreement, arrangement or understanding entered into in connection with an acquisition of common shares of the Corporation, by such shareholder or group of shareholders, from the Corporation), other than any such director referred to in this clause 4 who at the time of such annual meeting will have served as a director continuously, as a nominee of the Board of Directors, for at least two annual terms, but only to the extent the maximum number after such reduction with respect to this clause 4 equals or exceeds one; and
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5.
|
the number of incumbent directors who had been Shareholder Nominees at any of the preceding two annual meetings of shareholders and whose reelection at the upcoming annual meeting is being recommended by the Board of Directors.
|
ii.
|
Any Nominating Shareholder submitting more than one Shareholder Nominee for inclusion in the Corporation’s proxy materials pursuant to this Section 3.11 shall rank such Shareholder Nominees based on the order that the Nominating Shareholder desires such Shareholder Nominees to be selected for inclusion in the Corporation’s proxy materials. In the event that the number of Shareholder Nominees submitted by Nominating Shareholders pursuant to this Section 3.11 exceeds the Maximum Number, the highest ranking Shareholder Nominee who meets the requirements of this Section 3.11 from each Nominating Shareholder will be selected for inclusion in the
|
i.
|
An Eligible Shareholder or Nominator Group may submit a nomination in accordance with this Section 3.11 only if the person or group (in the aggregate) has continuously Owned at least the Minimum Number (as adjusted for any stock splits, stock dividends or similar events) of common shares of the Corporation throughout the three-year period preceding and including the date of submission of the Nomination Notice, and continues to Own at least the Minimum Number of shares through the date of the annual meeting. The following shall be treated as one Eligible Shareholder or one member of a Nominator Group if such Eligible Shareholder or member of a Nominator Group shall provide together with the Nomination Notice documentation that demonstrates compliance with the following criteria:
|
1.
|
funds under common management and investment control;
|
2.
|
funds under common management and funded primarily by the same employer; or
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3.
|
a “family of investment companies” or a “group of investment companies” (each as defined in the Investment Company Act of 1940, as amended).
|
ii.
|
No shareholder shall be permitted to be in more than one Nominator Group, and if any shareholder appears as a member of more than one Nominator Group, or as a member of a Nominator Group and as a Nominating Shareholder without any such group, such shareholder shall be deemed to be a member of only the Nominator Group that has the largest Ownership position as reflected in the Nomination Notice and is not permitted to act as a Nominating Shareholder separate from such Nominator Group.
|
i.
|
documentary evidence in the form of one or more written statements from the record holder of the shares (and from each intermediary through which the shares are or have been held during the requisite three-year holding period, provided that each such intermediary must be a participant in the Depository Trust Company or an affiliate of a participant in the Depository Trust Company) verifying and certifying that, as of a date within seven calendar days prior to the date of the Nomination Notice, the Nominating Shareholder Owns, and has continuously Owned for the preceding three years, the Minimum Number of shares, and the Nominating Shareholder’s agreement to provide, within five business days after the record date for the annual meeting, documentary evidence in the form of written statements from the record holder and intermediaries verifying and certifying the Nominating Shareholder’s continuous Ownership of the Minimum Number of shares through the record date;
|
ii.
|
an undertaking to provide immediate notice if the Nominating Shareholder ceases to Own the Minimum Number of shares prior to the date of the annual meeting;
|
iii.
|
a copy of the Schedule 14N (or any successor form) relating to the Shareholder Nominee, completed and filed with the Securities and Exchange Commission by the Nominating Shareholder as applicable, in accordance with Securities and Exchange Commission rules;
|
iv.
|
the written consent of each Shareholder Nominee to being named in the Corporation’s proxy statement, form of proxy and ballot as a nominee and to serving as a director if elected;
|
v.
|
a written notice of the nomination of such Shareholder Nominee that includes the following additional information, agreements, representations and warranties by the Nominating Shareholder (including, for the avoidance of doubt, each member of a Nominator Group):
|
1.
|
the information and other deliverables that would be required to be set forth in a shareholder’s notice of nomination pursuant to Section 3.10 of this Article III, as if the Nominating Shareholder were proposing a director nominee under that section;
|
2.
|
to the extent not included in the response to paragraph (1) above, a detailed description of all direct and indirect material compensation and other monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among the Nominating Shareholder, on the one hand, and each Shareholder Nominee, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 promulgated under Regulation S−K (or its successor Item) if the Nominating Shareholder were the “registrant” for purposes of such item and the Shareholder Nominee were a director or executive officer of such registrant;
|
3.
|
the details of any relationship that existed within the past three years and that would have been described pursuant to Item 6(e) of Schedule 14N (or any successor item) if it existed on the date of submission of the Schedule 14N;
|
4.
|
a representation and warranty that the Nominating Shareholder did not acquire, and is not holding, securities of the Corporation for the purpose or with the effect of influencing or changing control of the Corporation;
|
5.
|
a representation and warranty that the Nominating Shareholder has not nominated and will not nominate for election to the Board of Directors at the annual meeting any person other than such Nominating Shareholder’s Shareholder Nominee(s);
|
6.
|
a representation and warranty that the Nominating Shareholder has not engaged in and will not engage in a “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act with respect to the annual meeting, other than with respect to such Nominating Shareholder’s Shareholder Nominee(s) or any nominee of the Board of Directors;
|
7.
|
a representation and warranty that the Nominating Shareholder will not use or distribute any proxy card other than the Corporation’s proxy card in soliciting shareholders in connection with the election of a Shareholder Nominee at the annual meeting;
|
8.
|
a representation and warranty that the Shareholder Nominee’s candidacy or, if elected, board membership would not violate applicable state or federal law or Stock Exchange Rules ;
|
9.
|
a representation and warranty that the Shareholder Nominee: (A) qualifies as independent under the Stock Exchange Rules and any publicly disclosed standards used by the Board of Directors in determining and disclosing the independence of the directors; and (B) is not and has not been subject to any
|
10.
|
a representation and warranty that the Nominating Shareholder satisfies the eligibility requirements set forth in Section 3.11.d.;
|
11.
|
a representation and warranty that the Nominating Shareholder will continue to satisfy the eligibility requirements described in Section 3.11.d. through the date of the annual meeting;
|
12.
|
the details of any position of the Shareholder Nominee as an officer or director of any competitor (that is, any entity that provides products or services that compete with or are alternatives to the principal products produced or services provided by the Corporation or its affiliates) of the Corporation, within the three years preceding the submission of the Nomination Notice;
|
13.
|
if desired, a statement for inclusion in the proxy statement in support of the Shareholder Nominee’s election to the Board of Directors; provided, that any such statement shall not exceed 500 words and shall fully comply with Section 14 of the Exchange Act; and;
|
14.
|
in the case of a nomination by a Nominator Group, the designation by all group members of one group member that is authorized to act on behalf of all group members with respect to matters relating to the nomination, including withdrawal of the nomination;
|
vi.
|
an executed agreement (which form of agreement shall be provided to the Nominating Shareholder by the Secretary upon written request), which must be submitted within ten days of the Nominating Shareholder’s first submission of the Nomination Notice, pursuant to which the Nominating Shareholder (including each member of a Nominator Group) agrees:
|
1.
|
to comply with all applicable laws, rules and regulations in connection with the nomination, solicitation and election;
|
2.
|
to file any written solicitation or other communication with the Corporation’s shareholders relating to one or more of the Corporation’s directors or director nominees or any Shareholder Nominee with the Securities and Exchange Commission;
|
3.
|
to assume all liability stemming from any action, suit or proceeding concerning any actual or alleged legal or regulatory violation arising out of any communication by the Nominating Shareholder or the Shareholder Nominee nominated by such Nominating Shareholder with the Corporation, its shareholders or any other person, including, without limitation, the Nomination
|
4.
|
to indemnify and hold harmless (jointly with all other members of a Nominator Group, if applicable) the Corporation and each of its directors, officers and employees individually against any liability, loss, damages, expenses or other costs (including reasonable attorneys’ fees) incurred in connection with any action, suit or proceeding (whether threatened, pending or completed), whether legal, judicial, administrative or investigative, against the Corporation or any of its directors, officers or employees arising out of or relating to a failure or alleged failure of the Nominating Shareholder or Shareholder Nominee to comply with, or any breach or alleged breach of, its, or his or her, as applicable, obligations, agreements or representations under or pursuant to this Section 3.11, or otherwise arising out of any nomination, solicitation or other activity by any Eligible Shareholder or any member of a Nominator Group in connection with the Nominating Shareholder’s or the Shareholder Nominee’s efforts to elect the Shareholder Nominee pursuant to this Section 3.11;
|
5.
|
to promptly (and in any event within 48 hours of discovering such misstatement or omission) notify the Corporation and any other recipient of any misstatement or omission if information included in the Nomination Notice, or any other communication by the Nominating Shareholder (including with respect to any member of a Nominator Group) with the Corporation, its shareholders or any other person in connection with the nomination or election ceases to be true and accurate in all material respects (or omits a material fact necessary to make the statements made not misleading), and promptly notify the Corporation and any other recipient of the information that is required to correct the misstatement or omission; and
|
6.
|
in the event that the Nominating Shareholder (including any member of a Nominator Group) has failed to continue to satisfy the eligibility requirements described in Section 3.11.d., to promptly notify the Corporation;
|
vii.
|
an executed questionnaire (which form of questionnaire shall be provided to the Nominating Shareholder by the Secretary upon written request), which must be submitted within ten days of the Nominating Shareholder’s first submission of the Nomination Notice;
|
viii.
|
an executed agreement (which form of agreement shall be provided to the Nominating Shareholder by the Secretary upon written request), which must be submitted within ten days of the Nominating Shareholder’s first submission of the Nomination Notice, by the Shareholder Nominee:
|
1.
|
to provide to the Corporation such other information as it may reasonably request;
|
2.
|
that the Shareholder Nominee has read and agrees, if elected, to serve as a member of the Board of Directors, to adhere to the Corporation’s Corporate Governance Principles and Policies on Business Conduct and any other policies and guidelines applicable to directors; and
|
3.
|
that the Shareholder Nominee is not and will not become a party to (1) any Compensation Arrangement in connection with such person’s nomination or candidacy for director and/or such person’s service or action as a director of the Corporation that has not been disclosed to the Corporation prior to or concurrently with the Nominating Shareholder’s submission of the Nomination Notice, or (2) any Voting Commitment that has not been disclosed to the Corporation prior to or concurrently with the Nominating Shareholder’s submission of the Nomination Notice.
|
i.
|
If, after the deadline for submitting a Nomination Notice as set forth in Section 3.11.e a Nominating Shareholder becomes ineligible or withdraws its nomination or a Shareholder Nominee becomes ineligible or unwilling to serve on the Board of Directors, whether before or after the mailing of the definitive proxy statement, the Corporation:
|
1.
|
shall not be required to include in its proxy statement or on any ballot or form of proxy the Shareholder Nominee or any successor or replacement nominee
|
2.
|
may otherwise communicate to its shareholders, including without limitation by amending or supplementing its proxy statement or ballot or form of proxy, that the Shareholder Nominee will not be included as a Shareholder Nominee in the proxy statement or on any ballot or form of proxy and will not be voted on at the annual meeting.
|
ii.
|
Notwithstanding anything to the contrary contained in this Section 3.11, the Corporation may omit from its proxy materials any Shareholder Nominee, and any information concerning such Shareholder Nominee (including a Nominating Shareholder’s statement in support), and in such case no vote on such Shareholder Nominee will occur (notwithstanding that proxies in respect of such vote may have been received by the Corporation), and the Nominating Shareholder may not, after the last day on which a Nomination Notice would be timely, cure in any way any defect preventing the nomination of the Shareholder Nominee, if:
|
1.
|
the Nominating Shareholder has engaged in a “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act with respect to the annual meeting, other than with respect to such Nominating Shareholder’s Shareholder Nominee(s) or any nominee of the Board of Directors;
|
2.
|
the Nominating Shareholder or the designated lead group member of a Nominator Group, as applicable, or any qualified representative thereof, does not appear at the annual meeting to present the nomination submitted in accordance with this Section 3.11;
|
3.
|
the Board of Directors, acting in good faith, determines that such Shareholder Nominee’s nomination or election to the Board of Directors would result in the Corporation violating or failing to be in compliance with these By-laws or the Corporation’s Certificate of Incorporation or any applicable law, rule or regulation to which the Corporation is subject, including the Stock Exchange Rules;
|
4.
|
the Shareholder Nominee is not independent under the Stock Exchange Rules and any publicly disclosed standards used by the Board of Directors in determining and disclosing the independence of the directors, in each case as determined by the Board of Directors;
|
5.
|
the Shareholder Nominee was nominated for election to the Board of Directors pursuant to this Section 3.11 at one of the Corporation’s two preceding annual meetings of shareholders and either withdrew from or became ineligible or unavailable for election at such annual meeting or received a vote of less than 25% of the common shares entitled to vote for such Shareholder Nominee;
|
6.
|
the Shareholder Nominee has been, within the past three years, an officer or director of a competitor, as defined for purposes of Section 8 of the Clayton Antitrust Act of 1914, as amended; or
|
7.
|
the Nominating Shareholder has failed to continue to satisfy the eligibility requirements described in Section 3.11.d, any of the representations and warranties made in the Nomination Notice ceases to be true and accurate in all material respects (or the Nomination Notice omits a material fact necessary to make the statement made not misleading), the Shareholder Nominee becomes unwilling or unable to serve on the Board of Directors or any violation or breach occurs of any of the obligations, agreements, representations or warranties of the Nominating Shareholder or the Shareholder Nominee under this Section 3.11.
|
iii.
|
Notwithstanding anything to the contrary contained in this Section 3.11, the Corporation may omit from its proxy statement, or may supplement or correct, any information, including all or any portion of the statement in support of the Shareholder Nominee included in the Nomination Notice, if
|
1.
|
such information is not true in all material respects or omits a material statement necessary to make the statements made not misleading;
|
2.
|
such information directly or indirectly impugns the character, integrity or personal reputation of, or directly or indirectly makes charges concerning improper, illegal or immoral conduct or associations, without factual foundation, with respect to, any individual, Corporation, partnership, association or other entity, organization or governmental authority; or
|
3.
|
the inclusion of such information in the proxy statement would otherwise violate the Securities and Exchange Commission proxy rules or any other applicable law, rule or regulation.
|
iv.
|
The Corporation may solicit against, and include in the proxy statement its own statement relating to, any Shareholder Nominee.
|
|
(a)
|
|
the Record Date for determining the shareholders of record entitled to notice of, or to vote at, a meeting of shareholders shall be at the close of business on the day on which notice of the meeting is given, or, if no notice is given, at the close of business on the day next preceding the day on which the meeting is held;
|
|
|
|
|
|
(b)
|
|
the Record Date for determining shareholders entitled to express consent to an action in writing without a meeting, shall be as set forth in Section 2.9; and
|
|
|
|
|
|
(c)
|
|
the Record Date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors first adopts a resolution relating thereto.
|
|
(a)
|
|
Waiver of objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting.
|
|
|
|
|
|
(b)
|
|
Waiver of objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented.
|
Attest:
By:/s/ Ellen Padesky Maturen
Name: Ellen Padesky Maturen Title: Vice President and Deputy General Counsel |
PULTEGROUP, INC.
By:/s/ Todd N. Sheldon
Name: Todd N. Sheldon Title: Executive Vice President, General Counsel and Corporate Secretary |
Attest:
By: /s/ Douglas Ives
Name: Douglas Ives Title: AVP, Relationship Manager |
COMPUTERSHARE TRUST COMPANY, N.A.
By: /s/ Katherine Anderson
Name: Katherine Anderson Title: Vice President, Relationship Management |
1.
|
Termination Date: Your employment will terminate on May 8, 2020.
|
2.
|
Severance Benefits Pursuant to the PulteGroup, Inc. Executive Severance Policy (the “Severance Policy”) and other Severance Benefits: Subject to Your execution and non-revocation of this Agreement and Your compliance with this Agreement, the Company will pay You the following, less applicable deductions for taxes and as otherwise required by law and/or authorized by You:
|
A.
|
Severance Pay:
|
B.
|
Bonus for Year of Termination: Subject to certification by the Compensation Committee of the Board of Directors (the “Compensation Committee”) that the applicable performance goals for 2020 have been achieved, You will receive an amount equal to the bonus which could have been paid to You under the Annual Incentive Program for 2020 based on actual performance (as determined by the Compensation Committee in its sole discretion), multiplied by a fraction, the numerator of which equals the number of days You were employed by the Company during 2020 up to and including the Termination Date (i.e., 129), and the denominator of which is 365. Your 2020 payment under the Annual Incentive Program shall be paid no later than March 15, 2021.
|
C.
|
Long-Term Incentive Plan Awards: Subject to the Compensation Committee's certification that the performance goals for performance periods under Your outstanding performance-based awards under the Company’s Long-Term Incentive Plan have been achieved, You will be entitled to a prorated portion of any outstanding Long-Term Incentive Plan awards at the end of the applicable performance period(s)
|
3.
|
Other Benefits:
|
A.
|
Equity Awards: Any outstanding equity-based awards will vest or be forfeited according to the original terms and conditions of the grants pursuant to the governing plans and option agreements.
|
B.
|
Vacation Pay: You will receive payment for accrued but unused vacation as of Your Termination Date.
|
C.
|
Benefits: If You are covered under a medical, dental, vision and/or HealthCare Choice account benefits plan sponsored by the Company on Your Termination Date, You have the option to continue Your coverage under COBRA. Information regarding Your rights under COBRA will be mailed to You. If You are eligible for COBRA continuation and wish to continue medical, dental and/or vision coverage, You will be responsible for the cost of COBRA continuation after Your Termination Date. You may also continue Your HealthCare Choice account under COBRA at Your expense under the terms and conditions outlined. You must complete and sign the COBRA election form to initiate COBRA coverage. All other benefits provided through the Company will cease on Your Termination Date.
|
D.
|
No Other Compensation: Other than the amounts specifically described in this Agreement, You agree that You will receive no other compensation for service to the Company. Subject to Section 409A of the Internal Revenue Code, You further authorize Company to deduct from the Severance Pay any indebtedness that You owe to the Company, including, but not limited to credit card charges and any other obligations.
|
4.
|
Company Property; Expenses: On Your Termination Date, You will return to the Company all documents and other property belonging to the Company, including items such as keys, building access cards, phone, credit cards, and computers or other devices which have not already been returned by You and receipt acknowledged by the Company. You
|
5.
|
Cooperation in Investigations and Litigation: In the event the Company becomes involved in investigations, audits or inquiries, tax examinations or legal proceedings of any nature, related directly or indirectly to events which occurred during Your employment and about which You have personal knowledge, You agree that You will, at any future time, be available upon reasonable notice from the Company, with or without subpoena, to answer discovery requests, give depositions, or testify, with respect to matters of which You have or may have knowledge as a result of or in connection with Your employment relationship with the Company. In performing Your obligations under this paragraph to testify or otherwise provide information, You agree that You will truthfully, forthrightly, and completely provide the information requested. You further agree that You will not be compensated in any way by the Company for Your cooperation with the Company in connection with any litigation or other activity covered by this paragraph except that You shall be reimbursed as permitted by law for any reasonable expenses that You incur in providing testimony or other assistance to the Company under this paragraph. If You are (i) specifically made aware of any non-public proceedings or non-public matters related to the Company, (ii) requested in writing by a third party to provide non-public information regarding the Company, or (iii) called by a third party as a witness to testify in any matter related to the Company, You will promptly notify the Company to give it a reasonable opportunity to respond; provided, however, that nothing in this section is intended, or shall be construed, to limit Your ability to initiate communications directly with, or to respond to any inquiry from, or provide testimony before, the SEC, FINRA, OSHA, NLRB, EEOC, DOL, any self-regulatory organization or any other state or federal regulatory authority.
|
6.
|
Cooperation in Transition:
|
7.
|
Non-Competition and Non-Solicitation:
|
8.
|
Non-disparagement: Subject to the other provisions in this Agreement, You will not disparage the Company, its agents or employees in any manner following Your Termination Date. You will not publish, communicate, post or blog disparaging or confidential information about the Company.
|
9.
|
Indemnification: Nothing in this Agreement is intended to affect any obligation the Company may have under applicable law or its governing documents to indemnify You.
|
10.
|
Confidentiality: You shall maintain for all time as confidential, and shall not directly or indirectly use and/or disclose in any manner, any of the following types of information of the Company: any information that is not generally known in the trade and industry and that the Company considers to be of a confidential or proprietary nature including but not limited to all research and work related to the execution of home building operations and strategies,
|
11.
|
Tax Matters: This Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and shall be interpreted and construed consistently with such intent. The payments to You pursuant to this Agreement are also intended to be exempt from Section 409A of the Code to the maximum
|
12.
|
Release: Except as specifically set forth above, in consideration of the Severance Benefits, You waive and release all rights and claims You may have for any personal or monetary relief including salary, bonus, deferred compensation, severance pay, equity, commissions or other employee benefits or compensation arising from Your employment with the Company, or the termination of Your employment with the Company. Nothing in this Agreement shall be construed as an admission of any liability by the Company or a release or waiver of Your Severance Benefits provided by the Severance Policy and defined in this Agreement.
|
(a)
|
the group of individuals covered by the termination program,
|
(b)
|
the eligibility factors for the program,
|
(c)
|
the time limits to sign the Agreement,
|
(d)
|
the job titles and ages of the individuals eligible for the program, and
|
(e)
|
the ages of the individuals in the same job classification or organizational unit who are not eligible for the program.
|
13.
|
Miscellaneous provisions: You represent and warrant that You have the sole right and exclusive authority to execute this Agreement; that You have not sold, signed, transferred, conveyed or otherwise disposed of any claim or demand relating to any matter covered in this Agreement; that the provisions of this Agreement shall be binding upon You and Your heirs, executors, administrators and other legal representatives; that You have not relied upon any promise or representation that is not contained within this Agreement; and that the obligations imposed upon You in this Agreement will not prevent you from earning a satisfactory livelihood.
|
14.
|
Governing Law: Michigan law, including Michigan law regarding choice of law and conflicts of law, shall govern this Agreement. The terms and exclusions of the Company’s Alternative Dispute Resolution Policy apply to any and all disputes under this Agreement.
|