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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Notices
Bylaws, CGMs Certificate of Incorporation and applicable policies of CGM including all applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership, and trading policies and guidelines of CGM, as well as the applicable provisions of the rules and regulations of the Commission and any stock exchange applicable to CGM.24
Proposed Section 2.16g sets forth additional information the Stockholder Nominee must provide in addition to the information required or requested pursuant to proposed Section 2.16f or any other provision of the Bylaws and specifies that the Stockholder Nominees must submit all completed and signed questionnaires required of directors and officers of CGM.25
Additionally, Section 2.16g provides that CGM may require any proposed Stockholder Nominee to furnish any information: 1 That may reasonably be requested by CGM to determine whether the Stockholder Nominee would be independent under Section 3.3 of the Bylaws and otherwise qualifies as independent under the rules of the principal national securities exchange on which the outstanding capital stock of CGM is traded; 2 that could be material to a reasonable stockholders understanding of the independence, or lack thereof, of such Stockholder Nominee; 3 that would be required to satisfy the requirements for qualification of directors under applicable foreign regulations; or 4 that may reasonably be requested by CGM to determine the eligibility of such Stockholder Nominee to be included in CGMs proxy materials pursuant to proposed Section 2.16 or to serve as a director of CGM.26 Proposed Section 2.16g further provides that CGM may require the Eligible Stockholder to furnish any other information that may reasonably be requested by CGM to verify the Eligible Stockholders continuous Ownership of the Required Shares for the Minimum Holding Period and through the date of the annual meeting.27
As discussed above, an Eligible Stockholder may, at its option, provide to the Secretary, at the time the Notice of Proxy Access Nomination is provided, one Supporting Statement.28
Proposed Section 2.16h provides that CGM may omit from its proxy materials any information or Supporting Statement or portion thereof that it, in 24 See
proposed Bylaws Section 2.16fx.
25 See proposed Bylaws Section 2.16gi.
26 See proposed Bylaws Section 2.16gii.
27 See proposed Bylaws Section 2.16giii.
28 See proposed Bylaws Section 2.16h. See also supra note 10 and accompanying text.

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good faith, believes is untrue in any material respect or omits to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading or would violate any applicable law, rule or regulation.29
Proposed Section 2.16i provides that, in the event any information or communications provided by an Eligible Stockholder or a Stockholder Nominee to CGM or its stockholders is not, when provided, or thereafter ceases to be, true and correct in all material respects or omits to state a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, such Eligible Stockholder or Stockholder Nominee must promptly notify the Secretary of any such defect and of the information that is required to correct any such defect.30 In addition, an Eligible Stockholder must provide immediate notice to CGM if the Eligible Stockholder ceases to Own any of the Required Shares prior to the date of the annual meeting.31 Furthermore, any person providing any information to CGM pursuant to proposed Section 2.16i must further update and supplement such information, if necessary, so that all such information shall be true and correct as of the i record date for determining the stockholders entitled to receive notice of the meeting and ii date that is ten business days prior to the meeting or any postponement, adjournment or recess thereof.32 However, no notification, update or supplement provided pursuant to proposed Section 2.16i or otherwise shall be deemed to cure any defect in any previously provided information or communications or limit the remedies available to CGM relating to such defect including the right to omit a 29 See 17 CFR 240.14a9 generally prohibiting proxy solicitations that contain any statement which, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading.
30 See proposed Bylaws Section 2.16i.
31 See id.
32 See id., which requires that such update be received by CGM A not later than five business days after the record date for determining the stockholders entitled to receive notice of such meeting in the case of an update required to be made under clause i and B 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 meeting or any adjournment, recess or postponement thereof in the case of an update required to be made pursuant to clause ii.

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Stockholder Nominee from its proxy materials.33
Proposed Section 2.16j sets forth circumstances in which CGM would not be required to include a Stockholder Nominee in its proxy materials for any meeting of stockholders. In such circumstances, any such nomination would be disregarded and no vote on such Stockholder Nominee would occur, notwithstanding that proxies in respect of such vote may have been received by CGM.34 In particular, CGM
would not be required to include a Stockholder Nominee in its proxy materials i who would not be an independent director under Section 3.3
of the Bylaws, under the rules of the principal national securities exchange on which the outstanding capital stock of CGM is traded, any applicable rules of the Commission and any publicly disclosed standards used by the Board in determining and disclosing independence of CGMs directors, in each case as determined by the Board in its sole discretion; 35 ii who would not meet the audit committee independence requirements under the rules of the principal national securities exchange on which the outstanding capital stock of CGM is traded; iii who, if elected, intends to resign as a director of CGM
prior to the end of the full term for which he or she is standing for election;
iv who is or has been subject to any statutory disqualification under Section 3a39 of the Act; v who is or has been subject to disqualification under 17 CFR 1.63; vi whose election as a member of the Board would otherwise cause CGM to be in violation of the Bylaws, CGMs Certificate of Incorporation, the rules of the principal national securities exchange on which the outstanding capital stock of CGM is traded, or any applicable law, rule or regulation; vii who is or 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; viii who is a named subject of a pending criminal proceeding excluding traffic violations and other minor offenses or has been convicted in such a criminal proceeding within the past 10 years; ix who is subject to any order of the type specified in Rule 506d of Regulation D
promulgated under the Securities Act of 1933, as amended; x who has provided 33 See
id.
proposed Bylaws Section 2.16j.
35 Independence standards adopted by the Board will apply uniformly to all director nominees, including Stockholder Nominees. Any future independence standards adopted by the Board will comply with all applicable laws, rules, and regulations. See Amendment Nos. 1, supra note 4.
34 See
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