SEC Proposes Amendments To Rules Regarding Availability Of Proxy Materials

Author:Mr Todd Pfister, Peter C. Underwood and Christopher J. Rasmussen
Profession:Foley & Lardner

On October 14, 2009, the SEC proposed changes to the current "notice and access" proxy rules in an effort to reduce confusion arising from the existing rules and to increase shareholder-response rates when issuers and other soliciting persons use the "notice-only" proxy solicitation option.

Proposed Amendments to Notice and Access Proxy Rules Under the notice and access proxy solicitation model adopted by the SEC in 2007, issuers and other soliciting persons are required to post their proxy materials on an Internet site and are provided with two methods for delivering those materials to shareholders.

The first method is referred to as the "notice-only" option. This option requires the delivery to shareholders of a Notice of Internet Availability of Proxy Materials, which must contain certain information regarding how to access the proxy materials online, how to request a paper copy of the proxy materials, and how to vote. Much of the language required to be included in the notice is specifically mandated in the current rules. Under the notice-only option, no other document (except a notice of security holder meeting required under state law) may be included with or incorporated into the notice.

The second method available for delivery of proxy materials is the "full set delivery option," which requires the delivery of the traditional full set of proxy materials, in paper form, accompanied by a similar notice regarding the availability of proxy materials on the Internet.

While the notice-only option has been widely adopted and has resulted in significant cost savings for issuers, the SEC is concerned that certain aspects of the rules may create shareholder confusion and may be contributing to lower proxy-voting participation rates by shareholders. As a result, the SEC proposes to revise the rules in the following ways:

The SEC proposes to give issuers and other soliciting persons additional flexibility in drafting the language to be used in the notice. Specifically, rather than requiring a detailed boilerplate legend, the SEC would require the notice to address certain topics without specifying the precise language required (other than the current legend "Important Notice Regarding the Availability of Proxy Materials for the Shareholder Meeting To Be Held on [insert meeting date]," which would remain mandated language). The SEC also proposes to allow (and to...

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