Exhibit 3.1
FOURTH AMENDED AND RESTATED
BYLAWS
OF
BIO-TECHNE CORPORATION
Effective April 26, 2022
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Nominations of individuals for election to the Board of Directors may be made at a special meeting of shareholders at which directors are to be elected pursuant to the corporation’s notice of meeting (A) by or at the direction of the Board of Directors, (B) by a shareholder pursuant to Section 2.2 or (C) provided that the Board of Directors has determined that directors shall be elected at such meeting by any shareholder of the corporation who (1) is a shareholder of record at the time of giving of notice of such special meeting through the time of the special meeting, (2) is entitled to vote at the meeting (without giving effect to any proxy, voting agreement or other arrangement pursuant to which such shareholder may have been granted the right to act for another shareholder or vote in respect of stock at such special meeting) and
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(3) complies with the procedures set forth in Section 2.2, Section 2.9, Section 2.10, Section 2.11 and Section 2.12 of these Bylaws as to such nomination.
This Section 2.9(b) shall be the exclusive means for a shareholder to make nominations or propose other business to be considered at a special meeting of shareholders.
To be timely, a shareholder’s notice shall be delivered to the Secretary at the principal executive offices of the corporation not earlier than 5:00 p.m. Eastern Time on the one hundred twentieth (120th) day and not later than 5:00 p.m. Eastern Time on the ninetieth (90th) day prior to the first anniversary of the preceding year’s regular meeting; provided, however, that, in the event that no regular meeting was held in the previous year or the date of the regular meeting is more than thirty (30) days before or more than sixty (60) days after the first anniversary of the preceding year’s regular meeting, then, to be timely, notice by the shareholder must be so delivered not later than 5:00 p.m. Eastern Time on the tenth (10th) day following the day on which public announcement (as defined below) is first made of the date of the regular meeting. In no event shall any adjournment, recess, postponement or rescheduling of a regular meeting, or the public announcement thereof, commence a new time period (or extend any time period) for the giving of a shareholder’s notice as described above.
Notwithstanding anything in the immediately preceding paragraph to the contrary, in the event that the number of directors to be elected to the Board of Directors is increased by the Board of Directors, and there is no public announcement by the corporation naming all of the nominees for director or specifying the size of the increased Board of Directors at least one hundred (100) days prior to the first anniversary of the preceding year’s regular meeting, a shareholder’s notice required by this Section 2.10(a) shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the corporation not later than 5:00 p.m. Eastern Time on the tenth (10th) day following the day on which the public announcement specifying the size of the increased Board of Directors is first made by the corporation.
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In addition, to be considered timely, a shareholder’s notice shall further be updated and supplemented, if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of the record date for the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to the Secretary at the principal executive offices of the corporation not later than 5:00 p.m. Eastern Time five (5) business days after the record date for the meeting in the case of the update and supplement required to be made as of the record date, and not later than 5:00 p.m. Eastern Time eight (8) business days prior to the date for the meeting or any adjournment or postponement thereof in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof. A shareholder’s notice shall also be updated so that the information required by Section 2.10(c)(i)(C) is current through the date of the meeting or any adjournment, postponement or rescheduling thereof, and such update shall be delivered in writing to the Secretary at the principal executive offices of the corporation no later than two (2) business days after the occurrence of any material change to the information previously disclosed pursuant to Section 2.10(c)(i)(C). For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph shall not limit the corporation’s rights with respect to any deficiencies in any notice provided by a shareholder, extend any applicable deadlines hereunder or enable or be deemed to permit a shareholder who has previously submitted notice hereunder to amend or update any proposal or nomination or to submit any new proposal, including by changing or adding nominees, matters, business or resolutions proposed to be brought before a meeting of the shareholders.
To be timely, a shareholder’s notice shall be delivered to the Secretary at the principal executive offices of the corporation not earlier than 5:00 p.m. Eastern Time on the ninetieth (90th) day prior to the date of such special meeting and not later than 5:00 p.m. Eastern Time on the later of the sixtieth (60th) day prior to the date of such special meeting or, if the first public announcement of the date of such special meeting is less than seventy (70) days prior to the date of such special meeting, 5:00 p.m. Eastern Time on the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall any adjournment, recess, postponement or rescheduling of a special meeting, or the public announcement thereof, commence a new time period (or extend any time period) for the giving of a shareholder’s notice as described above.
In addition, to be considered timely, a shareholder’s notice shall further be updated and supplemented, if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of the record date for the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to the Secretary at the principal executive offices of the corporation not later than 5:00 p.m. Eastern Time five (5) business days after the record date for the meeting in the case of the update and supplement required to be made as of the record date, and not later than 5:00 p.m. Eastern Time eight (8) business days prior to the date for the meeting or any adjournment or postponement thereof in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof. For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these Bylaws shall not limit the
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corporation’s rights with respect to any deficiencies in any notice provided by a shareholder, extend any applicable deadlines hereunder or enable or be deemed to permit a shareholder who has previously submitted notice hereunder to amend or update any nomination, including by changing or adding nominees.
(i) As to the shareholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made: (A) the name and address of such shareholder, as they appear on the corporation’s books, of such beneficial owner, and of each of their respective affiliates and associates (as each is defined below), (B) (1) the class or series and number of shares of the corporation which are, directly or indirectly, owned beneficially and of record by such shareholder, such beneficial owner and/or any of their respective affiliates or associates, and the date(s) on which such shares were acquired and the investment intent of such acquisition, (2) the name of each nominee holder for, and number of, any securities of the corporation owned beneficially but not of record by such shareholder, such beneficial owner and/or any of their respective affiliates or associates and any pledge by such shareholder, such beneficial owner and/or any of their respective affiliates or associates with respect to any of such securities, (3) any option, warrant, convertible security, stock appreciation right or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the corporation or with a value derived in whole or in part from the value of any class or series of shares of the corporation, any derivative or synthetic arrangement having the characteristics of a long position in any class or series of shares of the corporation, or any contract, derivative, swap or other transaction or series of transactions designed to produce economic benefits and risks that correspond substantially to the ownership of any class or series of shares of the corporation, including due to the fact that the value of such contract, derivative, swap or other transaction or series of transactions is determined by reference to the price, value or volatility of any class or series of shares of the corporation, whether or not such instrument, contract or right shall be subject to settlement in the underlying class or series of shares of the corporation, through the delivery of cash or other property or otherwise, and without regard to whether the shareholder of record, the beneficial owner or any their respective affiliates or associates may have entered into transactions that hedge or mitigate the economic effect of such instrument, contract or right, or any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the corporation, and without regard to whether such instrument, contract or right is required to be reported on a Schedule 13D, 13F or 13G (any of the foregoing, a “Derivative Instrument”) directly or indirectly owned beneficially by such shareholder, such beneficial owner and/or any of their respective affiliates or associates, (4) any proxy, contract, arrangement, understanding, or relationship pursuant to which such shareholder, such beneficial owner and/or any of their respective affiliates or associates has any right or obligation to vote any class or series of shares of the corporation, (5) any agreement, arrangement, understanding or relationship, including any repurchase, “stock borrowing” or similar agreement or arrangement (regardless of the purpose or effect of such repurchase, “stock borrowing” or other similar agreement or arrangement), involving such shareholder, such beneficial owner and/or any of their respective affiliates or associates, directly or indirectly, the purpose or effect of which is to mitigate loss to, reduce the economic risk (of ownership or otherwise) of any class or series of the shares of the corporation by, manage the risk of share price changes for, or increase or decrease the voting power of, such shareholder, such beneficial owner and/or any of their respective
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affiliates or associates with respect to any class or series of the shares of the corporation, or which provides, directly or indirectly, the opportunity to profit or share in any profit derived from any decrease in the price or value of any class or series of the shares of the corporation (any of the foregoing, a “Short Interest”), (6) any rights to dividends on the shares of the corporation owned beneficially by such shareholder, such beneficial owner and/or any of their respective affiliates or associates that are separated or separable from the underlying shares of the corporation, (7) any proportionate interest in shares of the corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such shareholder, such beneficial owner and/or any of their respective affiliates or associates is a general partner or, directly or indirectly, beneficially owns an interest in a general partner of such general or limited partnership, (8) any performance-related fees (other than an asset-based fee) to which such shareholder, such beneficial owner and/or any of their respective affiliates or associates is entitled based on any increase or decrease in the value of shares of the corporation or Derivative Instruments, if any, including any such interests held by members of the immediate family sharing the same household of such shareholder, such beneficial owner and/or any of their respective affiliates or associates, (9) any significant equity interests or any Derivative Instruments or Short Interests in any Competitor (as defined below) held by such shareholder, such beneficial owner and/or any of their respective affiliates or associates, (10) any direct or indirect interest of such shareholder, such beneficial owner and/or any of their respective affiliates or associates in any contract with the corporation, any affiliate of the corporation or any Competitor (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement), and (11) any substantial interest, direct or indirect (including any existing or prospective commercial, business or contractual relationship with the corporation), by security holdings or otherwise, of such shareholder, such beneficial owner and/or any of their respective affiliates or associates in the corporation or any affiliate thereof, other than an interest arising from the ownership of corporation securities where such shareholder, such beneficial owner and/or any of their respective affiliates or associates receives no extra or special benefit not shared on a pro rata basis by all other holders of the same class or series; (C) all information that would be required to be set forth in a Schedule 13D filed pursuant to Rule 13d-1(a) under the Exchange Act or an amendment pursuant to Rule 13d-2(a) under the Exchange Act if such a statement were required to be filed under the Exchange Act by such shareholder, such beneficial owner and/or any of their respective affiliates or associates (regardless of whether such person or entity is actually required to file a Schedule 13D), (D) any other information relating to such shareholder, such beneficial owner and/or any of their respective affiliates or associates that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, (E) a representation that such shareholder intends to appear in person or by proxy at the meeting to present such shareholder’s business or nominees, as applicable, and an acknowledgment that, if such shareholder (or a duly authorized representative of such shareholder) does not appear to present such shareholder’s business or nominees, as applicable, at such meeting, the corporation need not present such business or nominees for a vote at such meeting, notwithstanding that proxies in respect of such vote may have been received by the corporation, (F) a complete and accurate description of any pending or threatened legal proceeding in which such shareholder, such beneficial owner and/or any of their respective affiliates or associates is a party or participant involving the corporation or, to such shareholder’s knowledge, any officer, director, affiliate or associate of the corporation, (G) a representation as to whether such shareholder, such beneficial
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owner or any of their respective affiliates intends to solicit proxies in support of director nominees other than the corporation’s nominees in accordance with Rule 14a-19 under the Exchange Act and (H) a representation that none of such shareholder, such beneficial owner or any of their respective affiliates or associates, has breached any contract or other agreement, arrangement or understanding with the corporation except as otherwise disclosed pursuant to this Section 2.10(c)(i)(H);
(ii) If the notice relates to any business other than a nomination of a director or directors that the shareholder proposes to bring before the meeting, a shareholder’s notice must, in addition to the matters set forth in paragraph (i) above, also set forth: (A) a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest of such shareholder, such beneficial owner and each of their respective affiliates or associates in such business, (B) the text of the proposal or business (including the text of any resolutions proposed for consideration and, in the event that such proposal or business includes a proposal to amend the Articles of Incorporation or these Bylaws, the text of the proposed amendment) and (C) a description of all agreements, arrangements and understandings between or among any of such shareholder, such beneficial owner and any of their respective affiliates or associates, on the one hand, and any other person(s) or entity(ies), on the other hand, (including their names) in connection with the proposal of such business by such shareholder;
(iii) As to each individual, if any, whom the shareholder proposes to nominate for election or reelection to the Board of Directors, a shareholder’s notice must, in addition to the matters set forth in paragraph (i) above, also set forth: (A) the name, age, business address, residential address, principal occupation and employment of such individual, (B) all other information relating to such individual that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder and (C) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three (3) years, and any other material relationships, between or among such shareholder, such beneficial owner or any of their respective affiliates and associates, on the one hand, and each proposed nominee or any of his or her respective affiliates and associates, on the other hand, including all information that would be required to be disclosed pursuant to Item 404 of Regulation S-K if the shareholder making the nomination and any beneficial owner on whose behalf the nomination is made or any of their respective affiliates or associates were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant;
(iv) With respect to each individual, if any, whom the shareholder proposes to nominate for election or reelection to the Board of Directors, a shareholder’s notice must, in addition to the matters set forth in paragraphs (i) and (iii) above, also include a completed and signed questionnaire, representation and agreement required by Section 2.11 of these Bylaws. The corporation may require any proposed nominee to furnish such other information as may reasonably be required by the corporation to determine the eligibility of such proposed nominee to serve as an independent director of the corporation or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nominee. The Board of Directors may require any proposed nominee to submit to interviews with the Board of Directors or any committee thereof and such
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proposed nominee shall make himself or herself available for any such interviews within no less than ten (10) business days following the date of such request.
(d) For purposes of these Bylaws, “affiliate” and “associate” shall have the meanings ascribed thereto in Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”).
(e) For purposes of these Bylaws, “Competitor” shall mean 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.
(f) For purposes of these Bylaws, “public announcement” shall mean disclosure in a press release reported by a national news service or in a document publicly filed or furnished by the corporation with the Securities and Exchange Commission.
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(i)“Authorized Group Member” shall mean, with respect to any nomination by a Nominating Group (as defined below), the member of that Nominating Group that is authorized to act on behalf of all members of that Nominating Group with respect to matters relating to the nomination, including withdrawal of the nomination.
(ii)“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 any agreement, arrangement or understanding with respect to any direct or indirect compensation, reimbursement or indemnification in connection with candidacy, nomination, service or action as a nominee or as a director of the corporation.
(iii)“Eligible Shareholder” shall mean a person or entity who has either (A) been a record holder of shares of common stock of the corporation used to satisfy the eligibility requirements in Section 2.13(d) continuously for the required three (3)-year period or (B) provides
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to the Secretary of the corporation, within the time period referred to in Section 2.13(e), evidence of continuous Ownership of such shares for such three (3)-year period from one or more securities intermediaries.
(iv) “Maximum Number” shall mean that number of directors constituting the greater of (A) two (2) or (B) twenty percent (20%) of the number of members of the Board of Directors which, at such time, the holders of common stock of the corporation are entitled to elect, on the last day on which a Nomination Notice may be submitted pursuant to this Section 2.13 (rounded down to the nearest whole number), which number shall be reduced as set forth in Section 2.13(c)(i).
(v) “Minimum Percentage” shall mean three percent (3%) of the number of outstanding shares of common stock of the corporation as provided in the most recent Exchange Act filing made by the corporation with the SEC immediately prior to the submission of the Nomination Notice.
(vi) “Nominating Shareholder” shall mean any Eligible Shareholder or group of no more than 20 shareholders (a “Nominating Group”) that, individually and collectively, in the case of a Nominating Group, satisfies the requirements to qualify as an Eligible Shareholder and that (A) has (individually and collectively, in the case of a Nominating Group) satisfied all applicable conditions and complied with all applicable procedures set forth in this Section 2.13 (including, without limitation, the timely submission of a Nomination Notice that meets the requirements set forth in this Section 2.13) and (B) has nominated a Shareholder Nominee.
(vii) “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 2.13(f).
(viii) “Own” shall mean possession, with respect to those outstanding shares of common stock of the corporation entitled to vote generally for the election of directors of the corporation, of both: (A) the full voting and investment rights pertaining to such shares and (B) the full economic and financial interest in (including the full and complete opportunity for profit and risk of loss on) such shares; provided, however, that the number of shares calculated with respect to a shareholder in accordance with clauses (A) and (B) shall not include any shares: (1) sold by such shareholder or any of its affiliates in any transaction that has not been settled or closed, including any short sale; (2) 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 (3) subject to any option, warrant, forward contract, swap, contract of sale or 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 shares of stock 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 (x) reducing in any manner, to any extent or at any time in the future, such shareholder’s or affiliate’s full right to vote or direct the voting of any such shares or (y) hedging, offsetting or altering to any degree any 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. A shareholder shall “Own” shares held in the name of a nominee or other intermediary so long as the shareholder retains the right to instruct how the shares are voted with respect to the election of directors and the right to direct the disposition thereof and possesses the full economic interest in the shares. A shareholder’s Ownership of shares shall be deemed to continue during any period in which (A) the shareholder has loaned such shares, provided that the shareholder has the power to recall such loaned shares on notice of five (5) business days or less, or (B) the shareholder has delegated any voting power over such shares by means of a proxy, power
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of attorney or other instrument or arrangement that is revocable at any time by the shareholder. The terms “Owned,” “Owning,” “Ownership” and other variations of the word “Own” shall have correlative meanings.
(ix)“Shareholder Nominee” shall mean any person nominated for election pursuant to this Section 2.13.
(x)“Stock Exchange Rules” shall mean the rules of any stock exchange on which the corporation’s securities are traded.
(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 SEC or other applicable law, rule or regulation to be included in the proxy statement; and
(iii)a 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 to Section 2.13(g)(iii)), but only if such statement does not exceed 500 words and fully complies with Section 14 of the Exchange Act and the rules and regulations thereunder.
For the avoidance of doubt, the provisions of this Section 2.13 shall not apply to any special meeting of shareholders.
(i)The corporation shall not be required to include in the proxy statement for a regular 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 2.13(e) but before the date of the regular meeting and the Board of Directors resolves to reduce the size of the Board of Directors 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 regular meeting shall be reduced by:
(A) Shareholder Nominees whose nominations for election at such regular meeting are subsequently withdrawn;
(B)Shareholder Nominees whom the Board of Directors itself decides to nominate for election at such regular meeting;
(C)the number of incumbent directors or director candidates (including candidates who are not Shareholder Nominees) that in either case will be included in the corporation’s proxy materials for a regular meeting of shareholders as unopposed (by the corporation) nominees pursuant to any agreement, arrangement or other understanding with any shareholder or group of shareholders; and
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(D)the number of incumbent directors who were Shareholder Nominees at any of the preceding two (2) regular meetings of shareholders and whose reelection at the upcoming regular 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 2.13 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 2.13 exceeds the Maximum Number, the highest ranking Shareholder Nominee who meets the requirements of this Section 2.13 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 the shares of common stock of the corporation that each Nominating Shareholder disclosed as Owned in its respective Nomination Notice submitted to the corporation. This selection process will continue with the next highest ranking nominees as many times as necessary, following the same order each time, until the Maximum Number is reached.
(i)An Eligible Shareholder or Nominating Group may submit a nomination in accordance with this Section 2.13 only if the Eligible Shareholder or Nominating Group (in the aggregate) has continuously Owned at least the Minimum Percentage of shares of common stock of the corporation (as adjusted for any stock splits, stock dividends, subdivisions, combinations, reclassifications, recapitalizations or similar events) throughout the three (3)-year period preceding and including the date of submission of the Nomination Notice, and continues to Own at least the Minimum Percentage of shares of common stock of the corporation through the date of the regular meeting. No shares may be attributed to more than one Eligible Shareholder. The following shall be treated as one Eligible Shareholder or one member of a Nominating Group if such Eligible Shareholder or member of a Nominating Group shall provide together with the Nomination Notice documentation that demonstrates compliance with the following criteria: (A) funds under common management and investment control; (B) funds under common management and funded primarily by the same employer; or (C) a “family of investment companies” or a “group of investment companies” (each as defined in or under the Investment Company Act of 1940, as amended).
(ii)For the avoidance of doubt, in the event of a nomination by a Nominating Group, any and all requirements and obligations for a given Eligible Shareholder (including each and every fund or company that comprises the Nominating Group) that are set forth in this Section 2.13, including the minimum holding period, shall apply to each member of such Nominating Group; provided, however, that the Minimum Percentage of shares shall apply to the Ownership of the Nominating Group in the aggregate. In the event that any shareholder withdraws from a Nominating Group at any time prior to the regular meeting of shareholders, the Nominating Group shall only be deemed to Own the shares held by the remaining members of that Nominating Group. No shareholder shall be permitted to be in more than one Nominating Group.
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(i)with respect to the Nominating Shareholder or, in the case of a Nominating Group, each member of the Nominating Group, documentary evidence in the form of one or more written statements from the record holder of the shares of common stock of the corporation (and from each intermediary through which the shares are or have been held during the requisite three (3)-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) and a representation from the Nominating Shareholder (or the Authorized Group Member on behalf of each member of a Nominating Group) verifying and certifying that, as of a date within seven (7) calendar days prior to the date of the Nomination Notice, the Nominating Shareholder (individually or collectively, in the case of a Nominating Group) Owns, and has continuously Owned for the preceding three (3) years, the Minimum Percentage of shares, and the Nominating Shareholder’s agreement to provide, within five (5) business days after the record date for the regular meeting, documentary evidence in the form of written statements from each record holder and intermediary and a representation from the Nominating Shareholder (or the Authorized Group Member on behalf of each member of a Nominating Group) verifying and certifying the Nominating Shareholder’s continuous Ownership (individually or collectively, in the case of a Nominating Group) of the Minimum Percentage of shares through the record date;
(ii)an undertaking to provide immediate notice if the Nominating Shareholder ceases to Own the Minimum Percentage of shares prior to the date of the regular meeting;
(iii)a copy of the Schedule 14N (or any successor form) relating to the Shareholder Nominee, completed and filed with the SEC by the Nominating Shareholder as applicable, in accordance with SEC 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 a full term 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 Nominating Group):
(A)the information and other deliverables that would be required to be set forth in a shareholder’s notice of nomination pursuant to Section 2.10 of these Bylaws, as if the Nominating Shareholder were the nominating shareholder under that section;
(B)to the extent not included in the response to Section 2.13(f)(v)(A) above, a detailed description of all material relationships, between or among the Nominating Shareholder, on the one hand, and each Shareholder Nominee, on the other hand, including
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all information that would be required to be disclosed pursuant to Item 404 of 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;
(C)the details of any relationship that existed within the past three (3) 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;
(D)a representation and warranty that the Nominating Shareholder acquired securities of the corporation in the ordinary course of business and 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;
(E)a representation and warranty that the Nominating Shareholder has not nominated and a covenant that it will not nominate for election to the Board of Directors at the regular meeting any person other than such Nominating Shareholder’s Shareholder Nominee(s);
(F)a representation and warranty that the Nominating Shareholder has not engaged in and a covenant that it will not engage in a “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act with respect to the regular meeting, other than with respect to such Nominating Shareholder’s Shareholder Nominee(s) or any nominee of the Board of Directors;
(G)a covenant that the Nominating Shareholder will not use or distribute any proxy card other than the corporation’s proxy card in soliciting proxies in connection with the election of a Shareholder Nominee at the regular meeting;
(H)a representation and warranty that the Shareholder Nominee’s candidacy or, if elected, membership on the Board of Directors would not violate any applicable law, rule or regulation to which the corporation is subject, including the Stock Exchange Rules;
(I)a representation and warranty that the Shareholder Nominee: (1) 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 (2) 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 or Item 401(f) of Regulation S-K (or any successor rule), without reference to whether the event is material to an evaluation of the ability or integrity of the Shareholder Nominee;
(J)a representation and warranty that the Nominating Shareholder satisfies the eligibility requirements set forth in Section 2.13(d);
(K)a covenant that the Nominating Shareholder will continue to satisfy the eligibility requirements described in Section 2.13(d) through the date of the regular meeting;
(L)the details of any position of the Shareholder Nominee as an officer or director of any Competitor within the three (3) years preceding the submission of the Nomination Notice;
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(M)if desired by the Nominating Shareholder and subject to Section 2.13(g)(ii), a statement for inclusion in the proxy statement in support of the Shareholder Nominee’s election to the Board of Directors. Any such statement shall not exceed 500 words and shall fully comply with Section 14 of the Exchange Act and the rules and regulations thereunder; and
(N)in the case of a nomination by a Nominating Group, the designation by all group members of one Authorized Group Member.
(vi)a signed agreement (the form of which the Nominating Shareholder shall request in writing from the Secretary and which the Secretary shall provide to the Nominating Shareholder within ten (10) days after receiving such request), which must be submitted within ten (10) days after the date on which the Secretary provides the form of agreement, pursuant to which the Nominating Shareholder (including each member of a Nominating Group) agrees:
(A)to comply with all applicable laws, rules and regulations in connection with the nomination, solicitation and election;
(B)to file any written solicitation 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 SEC, regardless of whether any such filing is required under any rule or regulation or whether any exemption from filing is available for such materials under any rule or regulation;
(C)to assume all liability stemming from any action, suit or proceeding concerning any actual or alleged legal or regulatory violation arising out of any communication by the Nominating Shareholder or any Shareholder Nominee nominated by such Nominating Shareholder with the corporation, its shareholders or any other person or entity, including the Nomination Notice;
(D)to indemnify and hold harmless (jointly with all other members of a Nominating Group, if applicable) the corporation and each of its directors, officers, employees, representatives and agents individually against any liability, loss, damages, expenses or other costs (including 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, employees, representatives or agents 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 2.13;
(E)to promptly (and in any event within 48 hours of discovering such misstatement or omission) notify the Secretary if any information included in the Nomination Notice, or in any other communication by the Nominating Shareholder (including with respect to any member of a Nominating Group) with the corporation, its shareholders or any other person or entity 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 of the information that is required to correct the misstatement or omission; and
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(F)in the event that the Nominating Shareholder (including any member of a Nominating Group) has failed to continue to satisfy the eligibility requirements described in Section 2.13(d), to promptly notify the corporation.
(vii)a completed and signed questionnaire, representation and agreement pursuant to Section 2.13(h) (the forms of which such person shall request in writing from the Secretary and which the Secretary shall provide to such person within ten (10) days after receiving such request), which must be submitted within ten (10) days after the date on which the Secretary of the corporation provides the Nominating Shareholder (or the Authorized Group Member, in the case of a Nominating Group) the forms of questionnaire, representation and agreement.
The information and documents required by this Section 2.13(f) shall be provided with respect to and executed by the Nominating Shareholder (and each member of a Nominating Group), and provided with respect to the persons and entities specified in Instructions 1 and 2 to Items 6(c) and (d) of Schedule 14N (or any successor item). The Nomination Notice shall be deemed submitted at the time at which all of the information and documents referred to in this Section 2.13(f) (other than such information and documents required to be provided after the date the Nomination Notice is first submitted) have been delivered to the Secretary.
(i)If, after the deadline for submitting a Nomination Notice as set forth in Section 2.13(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 corporation’s definitive proxy statement, the corporation 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.
(ii)Notwithstanding anything to the contrary contained in this Section 2.13, 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 communicate to its shareholders that such Shareholder Nominee will not be eligible for election at the regular meeting or that no vote will be held or occur as to such Shareholder Nominee, if:
(A)the corporation receives a notice (whether or not subsequently withdrawn) that a shareholder intends to nominate any candidate for election to the Board of Directors at the regular meeting pursuant to the advance notice requirements for shareholder nominees set forth in Section 2.10 of these Bylaws;
(B)the Nominating Shareholder has engaged or is currently engaged in a “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act with respect to the regular meeting, other than with respect to such Nominating Shareholder’s Shareholder Nominee(s) or any nominee of the Board of Directors;
(C)the Nominating Shareholder or the Authorized Group Member, as applicable, or any qualified representative thereof, does not appear at the regular meeting to present the nomination submitted in accordance with this Section 2.13;
(D)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
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the corporation violating or failing to be in compliance with these Bylaws or the Articles of Incorporation or any applicable law, rule or regulation to which the corporation is subject, including the Stock Exchange Rules;
(E)the Shareholder Nominee was nominated for election to the Board of Directors pursuant to this Section 2.13 at one of the corporation’s two (2) preceding regular meetings of shareholders and either withdrew from or became ineligible or unavailable for election at such regular meeting or received a vote of less than twenty percent (20%) of the shares of common stock of the corporation entitled to vote for such Shareholder Nominee;
(F)the Shareholder Nominee has been, within the past three (3) 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
(G)the Nominating Shareholder has failed to continue to satisfy the eligibility requirements described in Section 2.13(d), any of the representations and warranties made in the Nomination Notice ceases to be true and accurate in all material respects (or 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 or pursuant to this Section 2.13;
and, in any such case, such nomination shall be disregarded and 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.
(iii)Notwithstanding anything to the contrary contained in this Section 2.13, 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:
(A) such information is not true in all material respects or omits a material statement necessary to make the statements made not misleading;
(B) 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
(C)the inclusion of such information in the proxy statement would otherwise violate the SEC 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 in opposition to the nomination of the Shareholder Nominee and any other statement or information that the corporation or the Board of Directors determines in its discretion to include in the proxy statement relating to the Shareholder Nominee.
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(ii)is not and will not become a party to any Compensation Arrangement that has not been disclosed to the corporation;
(iii)if elected as a director of the corporation, will comply with all applicable rules of any securities exchanges upon which the corporation’s securities are listed, the Articles of Incorporation, these Bylaws, all applicable publicly disclosed corporate governance, ethics, conflict of interest, confidentiality, stock ownership and trading policies and all other guidelines and policies of the corporation generally applicable to directors (which other guidelines and policies will be provided to such nominee within five (5) business days after the Secretary receives any written request therefor from such nominee), and all applicable fiduciary duties under state law;
(iv) ) intends to serve as a director for the full term for which such person is to stand for election;
(v)if elected as a director of the corporation, will act in the best interests of the corporation and its shareholders and not in the interests of individual constituencies; and
(vi)will promptly provide to the corporation such other information as it may reasonably request.
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