Tag Archives: Rule 14a-8(i)(10)

SEC continues to grant no-action relief in connection with proxy access fix-it proposals

by Cydney Posner

The SEC has posted a number of additional Corp Fin responses to requests for no-action, as well as to requests for reconsideration of previous denials of relief, regarding shareholder proposals to amend proxy access bylaws, so-called “fix-it” proposals. In all cases, the companies argued that they should be permitted to exclude the fix-it proposals as “substantially implemented” under Rule 14a-8(i)(10). The requests were successful in obtaining no-action relief in all cases except one. As in the past, the staff has not identified the key determining factor, but companies now seem to have found a formula for successfully excluding these proposals. Continue reading

Leave a comment

Filed under Corporate Governance, Securities

Update on proxy access proposals

by Cydney Posner

What’s the latest on proxy access proposals?  As you may recall, the line drawn so far by Corp Fin has been that, where the shareholder proposal related to initial adoption of proxy access, Corp Fin has continued to grant no-action relief and permit exclusion of proxy access proposals as “substantially implemented” under Rule 14a-8(i)(10), so long as the bylaw provisions adopted by the companies contained the same eligibility percentage and duration of ownership thresholds (3%/3 years) as in the proposal, even though the bylaws also included  a number of “procedural limitations or restrictions that were inconsistent with or not contemplated by the proposals.”  However, with regard to shareholder proposals to amend a company’s existing proxy access bylaw — so-called “fix-it” proposals — the staff has refused to grant no-action relief on that same basis. Meanwhile, both proponents and companies have been exploring the contours of those staff positions, trying to determine how best to advance their opposing arguments. (See this PubCo post and this PubCo post.)  Continue reading

Leave a comment

Filed under Corporate Governance, Securities

Corp Fin Staff grants no-action relief allowing exclusion of shareholder proposals for proxy access under Rule 14a-8(i)(10)

by Cydney Posner

Now that Corp Fin has issued Staff Legal Bulletin 14H providing guidance that, for most practical purposes, eliminates the availability of Rule 14a-8(i)(9) (see this PubCo post) to exclude shareholder proposals that conflict with management proposals, there has been substantial speculation about the contours of Rule 14a-8(i)(10), the exclusion for proposals that have been “substantially implemented.” Companies have been especially breathless waiting to see whether the exclusion just might be available for the load of proxy access proposals that have been submitted this year. On Friday evening, the SEC posted on its website 18 no-action letters in connection with requests submitted to exclude proxy access proposals, 15 of which granted relief on  the basis of Rule 14a-8(i)(10) and three of which did not. Continue reading

Leave a comment

Filed under Corporate Governance, Securities

Highlights from panels with current and former staff of Corp Fin

by Cydney Posner

Below are some highlights (from my notes) of the PLI Securities Regulation Institute panel discussions Thursday and Friday with the Corp Fin staff (Keith Higgins, Shelley Parratt, David Fredrickson, Michele Anderson, Karen Garnett) as well as a number of some former staffers, plus some additional discussion from the M&A panel (which the moderator likened to Wednesday night’s contentious Republican debate).  Continue reading

Leave a comment

Filed under Corporate law, Executive Compensation, Securities