(H) a representation and warranty that the Nominating Stockholder has
not engaged and will not engage in, and has not been and will not be a participant (as defined in Schedule 14A of the Exchange Act) in, a solicitation within the meaning of Rule
14a-1(l)
(without
reference to the exception in
Section 14a-(l)(2)(iv))
(or any successor rules) with respect to the annual meeting, other than with respect to such Nominating Stockholders Nominee(s) or any nominee
of the Board of Directors;
(I) a representation and warranty that the Nominating Stockholder will not nominate any
person for election to the Board of Directors other than its Nominee(s) and will not use any proxy card other than the Corporations proxy card in soliciting stockholders in connection with the election of such Nominee(s) at the annual meeting;
(J) if desired, a statement for inclusion in the proxy statement in support of the Nominees election to the
Board of Directors, provided that such statement shall not exceed 500 words, shall fully comply with Section 14 of the Exchange Act and the rules and regulations thereunder, including Rule
14a-9,
and, for
the avoidance of doubt, shall not include any images, charts, pictures, graphic presentations or similar items;
(K)
in the case of a nomination by a group of Eligible Holders, 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; and
(L) with respect to the Nominee and Nominating Stockholder, the information, agreements,
representations and warranties required of nominees and stockholder proponents, respectively, under Section [
AN
];
(iii) An
executed agreement, in a form deemed satisfactory by the Board of Directors or its designee, acting in good faith, pursuant to which the Nominating Stockholder (including, with respect to nominations submitted by a group of Eligible Holders, each
group member) 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
Corporations stockholders relating to one or more of the Corporations directors or director nominees or any Nominee with the SEC, regardless of whether any such filing is required under 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 an
action, suit or proceeding concerning any actual or alleged legal or regulatory violation arising out of any communication by the Nominating Stockholder with the Corporation, its stockholders or any other person in connection with the nomination or
election of directors, including, without limitation, the Nomination Notice;
(D) to indemnify and hold harmless
(jointly and severally with all other group members, in the case of a nomination submitted by a group of Eligible Holders) the Corporation and each of its directors, officers and employees individually against any liability, loss, damages, expenses
or other costs (including attorneys fees) incurred in connection with any threatened or pending action, suit or proceeding, whether legal, 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 Stockholder to comply with, or any breach or alleged breach of, its obligations, agreements or representations under this Section [
PA
];
(E) in the event that any information included in the Nomination Notice, or any other communication by the Nominating
Stockholder (including, with respect to a nomination submitted by a group of Eligible Holders, any group member), with the Corporation, its stockholders or any other person in connection with the nomination or election ceases to be true and accurate
in all
B-5