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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Notices
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is exceeded.17 Proposed Section 2.16c also specifies that CGM will not be required to include any Stockholder Nominees in its proxy materials pursuant to Section 2.16 for any meeting of stockholders for which CGM receives a notice whether or not subsequently withdrawn that the Eligible Stockholder or any other stockholder intends to nominate one or more persons for election to the Board pursuant to Section 2.11 of the Bylaws.
Proposed Section 2.16f sets forth the information that an Eligible Stockholder must include in its Notice of Proxy Access Nomination, and includes, among other things: 18 i A statement by the Eligible Stockholder 1 setting forth and certifying as to the number of shares it Owns and has Owned continuously for the Minimum Holding Period and 2
agreeing to continue to Own the Required Shares through the date of the annual meeting; ii one or more written statements from the record holder of the Required Shares and from each intermediary through which the 17 Proposed Section 2.16c provides that for purposes of determining when the Permitted Number has been reached, any individual nominated by an Eligible Stockholder for inclusion in CGMs proxy materials pursuant to Section 2.16
whose nomination is subsequently withdrawn or whom the Board decides to nominate for election to the Board as a director will be counted as one of the Stockholder Nominees. Proposed Section 2.16c also provides that any Eligible Stockholder submitting more than one Stockholder Nominee pursuant to proposed Section 2.16 shall rank such Stockholder Nominees and, in the event the number of Stockholder Nominees submitted by Eligible Stockholders exceeds the Permitted Number, the highest ranking Stockholder Nominee who meets the requirements of proposed Section 2.16 from each Eligible Stockholder will be selected for inclusion in CGMs proxy materials until the Permitted Number is reached, going in order of the amount largest to smallest of shares of outstanding capital stock of CGM each Eligible Stockholder disclosed as Owned in its Notice of Proxy Access Nomination. If the Permitted Number is not reached after the highest ranking Stockholder Nominee from each Eligible Stockholder has been selected, then the next highest ranking Stockholder Nominee from each Eligible Stockholder will be selected for inclusion in CGMs proxy materials, and this process will continue as many times as necessary, following the same order each time, until the Permitted Number is reached.
18 In addition to the items further discussed below, proposed Section 2.16f also requires the Notice of Proxy Nomination to include i an undertaking that the Eligible Stockholder will assume liability and indemnify CGM in connection with the nomination submitted by the Eligible Stockholder; ii in the case of a nomination by an Eligible Stockholder consisting of a group of stockholders, the designation of one group member that is authorized to receive communications, notices, and inquiries from CGM and to act on behalf of members of the group; and iii in the case of a nomination by an Eligible Stockholder consisting of a group of stockholders in which two or more funds are intended to be treated as one stockholder, documentation that demonstrates that the funds are part of the same Qualifying Fund Group. See proposed Bylaws Section 2.16fvii1
2, viii, and ix.

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Required Shares are or have been held during the Minimum Holding Period verifying that, as of a date within seven calendar days prior to the date the Notice of Proxy Access Nomination is delivered to the CGM Secretary, the Eligible Stockholder Owns, and has Owned continuously for the Minimum Holding Period, the Required Shares, and the Eligible Stockholders agreement to provide, within five business days after the record date for the annual meeting, one or more written statements from the record holder and such intermediaries verifying the Eligible Stockholders continuous ownership of the Required Shares through the record date; iii a copy of the Schedule 14N that has been filed with the Commission as required by Rule 14a18 under the Act; 19 iv the information, representations, agreements, and other documents that are required to be set forth in or included with a stockholders notice of nomination given pursuant to Section 2.11 of the Bylaws; and v the written consent of each Stockholder Nominee to being named in the proxy statement as a nominee and to serving as a director if elected.20
The Notice of Proxy Access Nomination must also include a representation that the Eligible Stockholder 1 acquired the Required Shares in the ordinary course of business and not with the intent to change or influence control of CGM, and does not presently have such intent; 2
has not nominated and will not nominate for election to the Board as a director at the annual meeting any person, other than its Stockholder Nominees; 3 has not engaged and will not engage in, and has not and will not be a participant in another persons, solicitation within the meaning of Rule 14a1l under the Act in support of the election of any individual as a director at the annual meeting, other than its Stockholder Nominees or a nominee of the Board;
4 has not distributed and will not distribute to any stockholder of CGM
any form of proxy for the annual meeting other than the form distributed by CGM; 5 has complied and will comply with all laws, rules and regulations applicable to solicitations and the use, if any, of soliciting material 19 See proposed Bylaws Section 2.16fiii. See also 17 CFR 240.14n101 and 17 CFR 240.14a18, which generally require a Nominating Stockholder to provide notice to CGM of its intent to submit a proxy access nomination on a Schedule 14N and file that notice, including the required disclosure, with the Commission on the date first transmitted to CGM.
20 See proposed Bylaws Section 2.16fiv.

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in connection with the annual meeting;
and 6 has provided and will provide facts, statements and other information in all communications with CGM and its stockholders that are or will be true and correct in all material respects and do not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.21
Proposed Section 2.16f further requires the Notice of Proxy Access Nomination to include an undertaking that the Eligible Stockholder file with the Commission any solicitation or other communication with the stockholders of CGM relating to the meeting at which its Stockholder Nominees will be nominated, regardless of whether any such filing is required under Regulation 14A of the Act or whether any exemption from filing is available for such solicitation or other communication under Regulation 14A of the Act.22
Finally, proposed Section 2.16f requires the Notice of Proxy Access Nomination include a written representation and agreement by the Stockholder Nominee that such person:
1 Will act as a representative of all of the stockholders of CGM while serving as a director; 2 will provide facts, statements, and other information in all communications with CGM and its stockholders that are or will be true and correct in all material respects and shall not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; 3 is not and will not become a party to i any compensatory, payment or other financial agreement, arrangement or understanding with any person or entity other than CGM in connection with service or action as a director of CGM
that has not been disclosed to CGM, ii any Voting Commitment 23 that has not been disclosed to CGM, or iii any Voting Commitment that could reasonably be expected to limit or interfere with the Stockholder Nominees ability to comply, if elected as a director of CGM, with its fiduciary duties under applicable law; and 4
will abide by and comply with the 21 See
proposed Bylaws Section 2.16fvi16.
proposed Bylaws Section 2.16fvii. See also 17 CFR 240.14a1 through 14b2, which governs solicitations of proxies.
23 A Voting Commitment is any agreement, arrangement or understanding with any person or entity as to how the Stockholder Nominee would vote or act on any issue or question as a director.
See Notices, supra note 3, at 24055 n.12, 24063
n.12, 24087 n.12, 24079 n.12, 24048 n.12, and 24128 n.12, respectively.
22 See
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