DealLawyers.com Blog

The universal proxy rules apply to all shareholders’ meetings held after August 31st.  Activist investors are gearing up for the new regime, and public companies should be as well.  This Olshan memo provides a “roadmap” to the director nomination and solicitation process for activists considering a proxy contest under the new rules, and it’s also likely to be of interest to public company advisors.  This excerpt addresses the mechanics of the nomination process:

Preparation and Submission of Nomination Notice/Universal Proxy Card Notice

1. If required, request company-form director nominee materials by letter to the company (may require identifying stockholder of record)

2. Prepare nomination notice

a. May require extensive disclosure beyond that required in proxy statement, potentially including completed company-form director nominee questionnaire

b. Generally should include information required for universal proxy notice to satisfy universal proxy rules, including names of proposed nominees and a statement that the nominating stockholder intends to solicit proxies from at least 67% of the voting power entitled to vote in the election of directors

3. Deliver nomination notice in accordance with timing/manner requirements

a. Unless nominating stockholder is a Schedule 13D filer, in which case nomination will need to be disclosed in amendment to Schedule 13D, nomination can be delivered privately (without SEC filing or other public disclosure) if desired

b. Announcement of date of next annual meeting may impact nomination timing requirement (may be based on date of meeting or reset nomination deadline if date of meeting is outside of specified timeframe)

4. If nomination notice is not due at least 60 calendar days prior to the anniversary of the company’s previous year’s annual meeting (subject to potential adjustment), required to provide separate
universal proxy notice prior to such date

Other topics addressed by the memo include the activist’s situation analysis, engagement with potential nominees and service providers, and various matters relating to proxy cards and soliciting materials.

The universal proxy compliance date is just around the corner, and we have the resources you need to help you make sure that you’re up to speed on the new rules.  In addition to the law firm memos & other materials on the new rules available in our “Proxy Fights” Practice Area, we’ve also hosted a webcast on the new regime and, more recently, podcasts with Goodwin’s Sean Donahue and The Activist Investor’s Michael Levin. Subscribe today to access these materials & our other resources!  You can subscribe online, by emailing sales@ccrcorp.com, or by calling (800) 737-1271.

– John Jenkins