Regulation 14A: Solicitation of Proxies
ATTENTION ELECTRONIC FILERS
THIS REGULATION SHOULD BE READ IN CONJUNCTION WITH
REGULATION S-T (PART 232 OF THIS CHAPTER), WHICH GOVERNS THE PREPARATION AND SUBMISSION OF
DOCUMENTS IN ELECTRONIC FORMAT. MANY PROVISIONS RELATING TO THE PREPARATION AND SUBMISSION OF
DOCUMENTS IN PAPER FORMAT CONTAINED IN THIS REGULATION ARE SUPERSEDED BY THE PROVISIONS OF
REGULATION S-T FOR DOCUMENTS REQUIRED TO BE FILED IN ELECTRONIC FORMAT.
240.14a-1 — Definitions.
Unless the context otherwise requires, all terms used in this regulation
have the same meanings as in the Act or elsewhere in the general rules and regulations
thereunder. In addition, the following definitions apply unless the context otherwise
requires:
(a) Associate. The term “associate,” used to indicate a
relationship with any person, means:
(1) Any corporation or organization (other than the registrant or a
majority owned subsidiary of the registrant) of which such person is an officer or partner
or is, directly or indirectly, the beneficial owner of 10 percent or more of any class of
equity securities;
(2) Any trust or other estate in which such person has a substantial
beneficial interest or as to which such person serves as trustee or in a similar fiduciary
capacity; and
(3) Any relative or spouse of such person, or any relative of such spouse,
who has the same home as such person or who is a director or officer of the registrant or
any of its parents or subsidiaries.
(b) Employee benefit plan. For purposes of §§ 240.14a-13, 240.14b-1
and 240.14b-2, the term “employee benefit plan” means any purchase, savings, option, bonus,
appreciation, profit sharing, thrift, incentive, pension or similar plan primarily for
employees, directors, trustees or officers.
(c) Entity that exercises fiduciary powers. The term “entity that
exercises fiduciary powers” means any entity that holds securities in nominee name or
otherwise on behalf of a beneficial owner but does not include a clearing agency registered
pursuant to section 17A of the Act or a broker or a dealer.
(d) Exempt employee benefit plan securities. For purposes of §§
240.14a-13, 240.14b-1 and 240.14b-2, the term “exempt employee benefit plan securities”
means:
(1) Securities of the registrant held by an employee benefit plan, as
defined in paragraph (b) of this section, where such plan is established by the registrant;
or
(2) If notice regarding the current solicitation has been given pursuant
to § 240.14a-13(a)(1)(ii)(C) or if notice regarding the current request for a list of names,
addresses and securities positions of beneficial owners has been given pursuant to §
240.14a-13(b)(3), securities of the registrant held by an employee benefit plan, as defined
in paragraph (b) of this section, where such plan is established by an affiliate of the
registrant.
(e) Last fiscal year. The term “last fiscal year” of the registrant
means the last fiscal year of the registrant ending prior to the date of the meeting for
which proxies are to be solicited or if the solicitation involves written authorizations or
consents in lieu of a meeting, the earliest date they may be used to effect corporate
action.
(f) Proxy. The term “proxy” includes every proxy, consent or
authorization within the meaning of section 14(a) of the Act. The consent or authorization
may take the form of failure to object or to dissent.
(g) Proxy statement. The term “proxy statement” means the statement
required by § 240.14a-3(a) whether or not contained in a single document.
(h) Record date. The term “record date” means the date as of which
the record holders of securities entitled to vote at a meeting or by written consent or
authorization shall be determined.
(i) Record holder. For purposes of §§ 240.14a-13, 240.14b-1 and
240.14b-2, the term “record holder” means any broker, dealer, voting trustee, bank,
association or other entity that exercises fiduciary powers which holds securities of record
in nominee name or otherwise or as a participant in a clearing agency registered pursuant to
section 17A of the Act.
(j) Registrant. The term “registrant” means the issuer of the
securities in respect of which proxies are to be solicited.
(k) Respondent bank. For purposes of §§ 240.14a-13, 240.14b-1 and
240.14b-2, the term “respondent bank” means any bank, association or other entity that
exercises fiduciary powers which holds securities on behalf of beneficial owners and
deposits such securities for safekeeping with another bank, association or other entity that
exercises fiduciary powers.
(l) Solicitation. (1) The terms “solicit” and “solicitation”
include:
(i) Any request for a proxy whether or not accompanied by or included in a
form of proxy:
(ii) Any request to execute or not to execute, or to revoke, a proxy;
or
(iii) The furnishing of a form of proxy or other communication to security
holders under circumstances reasonably calculated to result in the procurement, withholding
or revocation of a proxy, including:
(A) Any proxy voting advice that makes a recommendation to a security holder as to its
vote, consent, or authorization on a specific matter for which security holder approval is
solicited, and that is furnished by a person that markets its expertise as a provider of
such proxy voting advice, separately from other forms of investment advice, and sells such
proxy voting advice for a fee.
(2) The terms do not apply, however, to:
(i) The furnishing of a form of proxy to a security holder upon the
unsolicited request of such security holder;
(ii) The performance by the registrant of acts required by §
240.14a-7;
(iii) The performance by any person of ministerial acts on behalf of a
person soliciting a proxy;
(iv) A communication by a security holder who does not otherwise engage in
a proxy solicitation (other than a solicitation exempt under § 240.14a-2) stating how the
security holder intends to vote and the reasons therefor, provided that the communication:
(A) Is made by means of speeches in public forums, press releases,
published or broadcast opinions, statements, or advertisements appearing in a broadcast
media, or newspaper, magazine or other bona fide publication disseminated on a regular
basis,
(B) Is directed to persons to whom the security holder owes a fiduciary
duty in connection with the voting of securities of a registrant held by the security
holder, or
(C) Is made in response to unsolicited requests for additional information
with respect to a prior communication by the security holder made pursuant to this paragraph
(l)(2)(iv); or
(v) The furnishing of any proxy voting advice by a person who furnishes such advice only in
response to an unprompted request.
[51 FR 44275, Dec. 9, 1986, as amended at 52 FR 23648, June 24,
1987; 53 FR 16405, May, 9, 1988; 57 FR 48290, Oct. 22, 1992; 85 FR 55082, Sept. 3,
2020]
240.14a-2 — Solicitations to which § 240.14a-3 to § 240.14a-15 apply.
Sections 240.14a-3 to 240.14a-15, except as specified, apply to every
solicitation of a proxy with respect to securities registered pursuant to section 12 of the
Act (15 U.S.C. 78l), whether or not trading in such securities has been suspended. To
the extent specified below, certain of these sections also apply to roll-up transactions
that do not involve an entity with securities registered pursuant to section 12 of the
Act.
(a) Sections 240.14a-3 to 240.14a-15 do not apply to the following:
(1) Any solicitation by a person in respect to securities carried in his
name or in the name of his nominee (otherwise than as voting trustee) or held in his
custody, if such person —
(i) Receives no commission or remuneration for such solicitation, directly
or indirectly, other than reimbursement of reasonable expenses,
(ii) Furnishes promptly to the person solicited (or such person's
household in accordance with § 240.14a-3(e)(1)) a copy of all soliciting material with
respect to the same subject matter or meeting received from all persons who shall furnish
copies thereof for such purpose and who shall, if requested, defray the reasonable expenses
to be incurred in forwarding such material, and
(iii) In addition, does no more than impartially instruct the person
solicited to forward a proxy to the person, if any, to whom the person solicited desires to
give a proxy, or impartially request from the person solicited instructions as to the
authority to be conferred by the proxy and state that a proxy will be given if no
instructions are received by a certain date.
(2) Any solicitation by a person in respect of securities of which he is
the beneficial owner;
(3) Any solicitation involved in the offer and sale of securities
registered under the Securities Act of 1933: Provided, That this paragraph shall not
apply to securities to be issued in any transaction of the character specified in paragraph
(a) of Rule 145 under that Act;
(4) Any solicitation with respect to a plan of reorganization under
Chapter 11 of the Bankruptcy Reform Act of 1978, as amended, if made after the entry of an
order approving the written disclosure statement concerning a plan of reorganization
pursuant to section 1125 of said Act and after, or concurrently with, the transmittal of
such disclosure statement as required by section 1125 of said Act;
(5) [Reserved]
(6) Any solicitation through the medium of a newspaper advertisement which
informs security holders of a source from which they may obtain copies of a proxy statement,
form of proxy and any other soliciting material and does no more than:
(i) Name the registrant,
(ii) State the reason for the advertisement, and
(iii) Identify the proposal or proposals to be acted upon by security
holders.
(b) Sections 240.14a-3 through 240.14a-6 (other than § 240.14a-6(g) and
(p)), 240.14a-8, 240.14a-10, 240.14a-12 through 240.14a-15, and 240.14a-19 do not apply to
the following:
(1) Any solicitation by or on behalf of any person who does not, at any
time during such solicitation, seek directly or indirectly, either on its own or another's
behalf, the power to act as proxy for a security holder and does not furnish or otherwise
request, or act on behalf of a person who furnishes or requests, a form of revocation,
abstention, consent or authorization. Provided, however, That the exemption set forth
in this paragraph shall not apply to:
(i) The registrant or an affiliate or associate of the registrant (other
than an officer or director or any person serving in a similar capacity);
(ii) An officer or director of the registrant or any person serving in a
similar capacity engaging in a solicitation financed directly or indirectly by the
registrant;
(iii) An officer, director, affiliate or associate of a person that is
ineligible to rely on the exemption set forth in this paragraph (other than persons
specified in paragraph (b)(1)(i) of this section), or any person serving in a similar
capacity;
(iv) Any nominee for whose election as a director proxies are
solicited;
(v) Any person soliciting in opposition to a merger, recapitalization,
reorganization, sale of assets or other extraordinary transaction recommended or approved by
the board of directors of the registrant who is proposing or intends to propose an
alternative transaction to which such person or one of its affiliates is a party;
(vi) Any person who is required to report beneficial ownership of the
registrant's equity securities on a Schedule 13D (§ 240.13d-101), unless such person has
filed a Schedule 13D and has not disclosed pursuant to Item 4 thereto an intent, or reserved
the right, to engage in a control transaction, or any contested solicitation for the
election of directors;
(vii) Any person who receives compensation from an ineligible person
directly related to the solicitation of proxies, other than pursuant to § 240.14a-13;
(viii) Where the registrant is an investment company registered under the
Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.), an “interested person” of that
investment company, as that term is defined in section 2(a)(19) of the Investment Company
Act (15 U.S.C. 80a-2);
(ix) Any person who, because of a substantial interest in the subject
matter of the solicitation, is likely to receive a benefit from a successful solicitation
that would not be shared pro rata by all other holders of the same class of securities,
other than a benefit arising from the person's employment with the registrant; and
(x) Any person acting on behalf of any of the foregoing.
(2) Any solicitation made otherwise than on behalf of the registrant where
the total number of persons solicited is not more than ten;
(3) The furnishing of proxy voting advice by any person (the “advisor”) to
any other person with whom the advisor has a business relationship, if:
(i) The advisor renders financial advice in the ordinary course of his
business;
(ii) The advisor discloses to the recipient of the advice any significant
relationship with the registrant or any of its affiliates, or a security holder proponent of
the matter on which advice is given, as well as any material interests of the advisor in
such matter;
(iii) The advisor receives no special commission or remuneration for
furnishing the proxy voting advice from any person other than a recipient of the advice and
other persons who receive similar advice under this subsection; and
(iv) The proxy voting advice is not furnished on behalf of any person
soliciting proxies or on behalf of a participant in an election subject to the provisions of
§ 240.14a-12(c); and
(4) Any solicitation in connection with a roll-up transaction as defined
in Item 901(c) of Regulation S-K (§ 229.901 of this chapter) in which the holder of a
security that is the subject of a proposed roll-up transaction engages in preliminary
communications with other holders of securities that are the subject of the same limited
partnership roll-up transaction for the purpose of determining whether to solicit proxies,
consents, or authorizations in opposition to the proposed limited partnership roll-up
transaction; provided, however, that:
(i) This exemption shall not apply to a security holder who is an
affiliate of the registrant or general partner or sponsor; and
(ii) This exemption shall not apply to a holder of five percent (5%) or
more of the outstanding securities of a class that is the subject of the proposed roll-up
transaction who engages in the business of buying and selling limited partnership interests
in the secondary market unless that holder discloses to the persons to whom the
communications are made such ownership interest and any relations of the holder to the
parties of the transaction or to the transaction itself, as required by § 240.14a-6(n)(1)
and specified in the Notice of Exempt Preliminary Roll-up Communication (§ 240.14a-104). If
the communication is oral, this disclosure may be provided to the security holder orally.
Whether the communication is written or oral, the notice required by § 240.14a-6(n) and §
240.14a-104 shall be furnished to the Commission.
(5) Publication or distribution by a broker or a dealer of a research
report in accordance with Rule 138 (§ 230.138 of this chapter) or Rule 139 (§ 230.139 of
this chapter) during a transaction in which the broker or dealer or its affiliate
participates or acts in a an advisory role.
(6) Any solicitation by or on behalf of any person who does not seek
directly or indirectly, either on its own or another's behalf, the power to act as proxy for
a shareholder and does not furnish or otherwise request, or act on behalf of a person who
furnishes or requests, a form of revocation, abstention, consent, or authorization in an
electronic shareholder forum that is established, maintained or operated pursuant to the
provisions of § 240.14a-17, provided that the solicitation is made more than 60 days prior
to the date announced by a registrant for its next annual or special meeting of
shareholders. If the registrant announces the date of its next annual or special meeting of
shareholders less than 60 days before the meeting date, then the solicitation may not be
made more than two days following the date of the registrant's announcement of the meeting
date. Participation in an electronic shareholder forum does not eliminate a person's
eligibility to solicit proxies after the date that this exemption is no longer available, or
is no longer being relied upon, provided that any such solicitation is conducted in
accordance with this regulation.
(7) [Reserved]
(8) [Reserved]
(9) Paragraphs (b)(1) and (b)(3) of this section shall not be available to a
person furnishing proxy voting advice covered by § 240.14a-1(l)(1)(iii)(A) (“proxy voting
advice business”) unless the proxy voting advice business includes in its proxy voting
advice or in an electronic medium used to deliver the proxy voting advice prominent
disclosure of:
(i) Any information regarding an interest, transaction, or relationship of the
proxy voting advice business (or its affiliates) that is material to assessing the
objectivity of the proxy voting advice in light of the circumstances of the particular
interest, transaction, or relationship; and
(ii) Any policies and procedures used to identify, as well as the steps taken
to address, any such material conflicts of interest arising from such interest, transaction,
or relationship.
[44 FR 68769, Nov. 29, 1979, as amended at 51 FR 42059, Nov. 20, 1986; 52
FR 21936, June 10, 1987; 57 FR 48290, Oct. 22, 1992; 59 FR 63684, Dec. 8, 1994; 65 FR
65749, Nov. 2, 2000; 70 FR 44829, Aug. 3, 2005; 72 FR 4166, Jan. 29, 2007; 73 FR 4458,
Jan. 25, 2008; 73 FR 17814, Apr. 1, 2008; 75 FR 56780, Sept. 16, 2010; 85 FR 55082, Sept.
3, 2020; 86 FR 68330, Dec. 1, 2021; 87 FR 43168, July 19, 2022; 90 FR 9684, Feb. 18,
2025]
240.14a-3 — Information to be furnished to security holders.
(a) No solicitation subject to this regulation shall be made unless each
person solicited is concurrently furnished or has previously been furnished with:
(1) A publicly-filed preliminary or definitive proxy statement, in the
form and manner described in § 240.14a-16, containing the information specified in Schedule
14A (§ 240.14a-101);
(2) A preliminary or definitive written proxy statement included in a
registration statement filed under the Securities Act of 1933 on Form S-4 or F-4 (§ 239.25
or § 239.34 of this chapter) or Form N-14 (§ 239.23 of this chapter) and containing the
information specified in such Form; or
(3) A publicly-filed preliminary or definitive proxy statement, not in the
form and manner described in § 240.14a-16, containing the information specified in Schedule
14A (§ 240.14a-101), if:
(i) The solicitation relates to a business combination transaction as
defined in § 230.165 of this chapter, as well as transactions for cash consideration
requiring disclosure under Item 14 of § 240.14a-101; or
(ii) The solicitation may not follow the form and manner described in §
240.14a-16 pursuant to the laws of the state of incorporation of the registrant.
(b) If the solicitation is made on behalf of the registrant, other than an
investment company registered under the Investment Company Act of 1940, and relates to an
annual (or special meeting in lieu of the annual) meeting of security holders, or written
consent in lieu of such meeting, at which directors are to be elected, each proxy statement
furnished pursuant to paragraph (a) of this section shall be accompanied or preceded by an
annual report to security holders as follows:
(1) The report shall include, for the registrant and its subsidiaries,
consolidated and audited balance sheets as of the end of the two most recent fiscal years
and audited statements of income and cash flows for each of the three most recent fiscal
years prepared in accordance with Regulation S-X (part 210 of this chapter), except that the
provisions of Article 3 (other than §§ 210.3-03(e), 210.3-04 and 210.3-20) and Article 11
shall not apply. Any financial statement schedules or exhibits or separate financial
statements which may otherwise be required in filings with the Commission may be omitted. If
the financial statements of the registrant and its subsidiaries consolidated in the annual
report filed or to be filed with the Commission are not required to be audited, the
financial statements required by this paragraph may be unaudited. A smaller reporting
company may provide the information in Article 8 of Regulation S-X (§ 210.8 of this chapter)
in lieu of the financial information required by this paragraph 9(b)(1).
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Note 1 to paragraph (b)(1):
If the financial statements for a period prior to the most
recently completed fiscal year have been examined by a predecessor accountant,
the separate report of the predecessor accountant may be omitted in the report
to security holders, provided the registrant has obtained from the predecessor
accountant a reissued report covering the prior period presented and the
successor accountant clearly indicates in the scope paragraph of his or her
report (a) that the financial statements of the prior period were examined by
other accountants, (b) the date of their report, (c) the type of opinion
expressed by the predecessor accountant and (d) the substantive reasons
therefore, if it was other than unqualified. It should be noted, however, that
the separate report of any predecessor accountant is required in filings with
the Commission. If, for instance, the financial statements in the annual report
to security holders are incorporated by reference in a Form 10-K, the separate
report of a predecessor accountant shall be filed in Part II or in Part IV as a
financial statement schedule.
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Note 2 to paragraph (b)(1):
For purposes of complying with § 240.14a-3, if the registrant
has changed its fiscal closing date, financial statements covering two years and
one period of 9 to 12 months shall be deemed to satisfy the requirements for
statements of income and cash flows for the three most recent fiscal years.
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(2)(i) Financial statements and notes thereto shall be presented in roman
type at least as large and as legible as 10-point modern type. If necessary for convenient
presentation, the financial statements may be in roman type as large and as legible as
8-point modern type. All type shall be leaded at least 2 points.
(ii) Where the annual report to security holders is delivered through an
electronic medium, issuers may satisfy legibility requirements applicable to printed
documents, such as type size and font, by presenting all required information in a format
readily communicated to investors.
(3) The report shall contain the supplementary financial information
required by item 302 of Regulation S-K (§ 229.302 of this chapter).
(4) The report shall contain information concerning changes in and
disagreements with accountants on accounting and financial disclosure required by Item 304
of Regulation S-K (§ 229.304 of this chapter).
(5)(i) [Reserved]
(ii) The report shall contain management's discussion and analysis of
financial condition and results of operations required by Item 303 of Regulation S-K (§
229.303 of this chapter).
(iii) The report shall contain the quantitative and qualitative
disclosures about market risk required by Item 305 of Regulation S-K (§ 229.305 of this
chapter).
(6) The report shall contain a brief description of the business done by
the registrant and its subsidiaries during the most recent fiscal year which will, in the
opinion of management, indicate the general nature and scope of the business of the
registrant and its subsidiaries.
(7) The report shall contain information relating to the registrant's
industry segments, classes of similar products or services, foreign and domestic operations
and exports sales required by paragraphs (b), (c)(1)(i) and (d) of Item 101 of Regulation
S-K (§ 229.101 of this chapter).
(8) The report shall identify each of the registrant's directors and
executive officers, and shall indicate the principal occupation or employment of each such
person and the name and principal business of any organization by which such person is
employed.
(9) The report shall contain the market price of and dividends on the
registrant's common equity and related security holder matters required by Items 201(a), (b)
and (c) of Regulation S-K (§ 229.201(a), (b) and (c) of this chapter). If the report
precedes or accompanies a proxy statement or information statement relating to an annual
meeting of security holders at which directors are to be elected (or special meeting or
written consents in lieu of such meeting), furnish the performance graph required by Item
201(e) (§ 229.201(e) of this chapter).
(10) The registrant's proxy statement, or the report, shall contain an
undertaking in bold face or otherwise reasonably prominent type to provide without charge to
each person solicited upon the written request of any such person, a copy of the
registrant's annual report on Form 10-K, including the financial statements and the
financial statement schedules, required to be filed with the Commission pursuant to Rule
13a-1 (§ 240.13a-1 of this chapter) under the Act for the registrant's most recent fiscal
year, and shall indicate the name and address (including title or department) of the person
to whom such a written request is to be directed. In the discretion of management, a
registrant need not undertake to furnish without charge copies of all exhibits to its Form
10-K, provided that the copy of the annual report on Form 10-K furnished without charge to
requesting security holders is accompanied by a list briefly describing all the exhibits not
contained therein and indicating that the registrant will furnish any exhibit upon the
payment of a specified reasonable fee, which fee shall be limited to the registrant's
reasonable expenses in furnishing such exhibit. If the registrant's annual report to
security holders complies with all of the disclosure requirements of Form 10-K and is filed
with the Commission in satisfaction of its Form 10-K filing requirements, such registrant
need not furnish a separate Form 10-K to security holders who receive a copy of such annual
report.
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Note to paragraph (b)(10):
Pursuant to the undertaking required by paragraph (b)(10) of
this section, a registrant shall furnish a copy of its annual report on Form
10-K (§ 249.310 of this chapter) to a beneficial owner of its securities upon
receipt of a written request from such person. Each request must set forth a
good faith representation that, as of the record date for the solicitation
requiring the furnishing of the annual report to security holders pursuant to
paragraph (b) of this section, the person making the request was a beneficial
owner of securities entitled to vote.
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(11) Subject to the foregoing requirements, the report may be in any form
deemed suitable by management and the information required by paragraphs (b)(5) to (10) of
this section may be presented in an appendix or other separate section of the report,
provided that the attention of security holders is called to such presentation.
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Note:
Registrants are encouraged to utilize tables, schedules,
charts and graphic illustrations of present financial information in an
understandable manner. Any presentation of financial information must be
consistent with the data in the financial statements contained in the report
and, if appropriate, should refer to relevant portions of the financial
statements and notes thereto.
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(12) [Reserved]
(13) Paragraph (b) of this section shall not apply, however, to
solicitations made on behalf of the registrant before the financial statements are available
if a solicitation is being made at the same time in opposition to the registrant and if the
registrant's proxy statement includes an undertaking in bold face type to furnish such
annual report to security holders to all persons being solicited at least 20 calendar days
before the date of the meeting or, if the solicitation refers to a written consent or
authorization in lieu of a meeting, at least 20 calendar days prior to the earliest date on
which it may be used to effect corporate action.
(c) The report sent to security holders pursuant to this rule shall be
submitted in electronic format, in accordance with the EDGAR Filer Manual, to the
Commission, solely for its information, not later than the date on which such report is
first sent or given to security holders or the date on which preliminary copies, or
definitive copies, if preliminary filing was not required, of solicitation material are
filed with the Commission pursuant to § 240.14a-6, whichever date is later. The report is
not deemed to be “soliciting material” or to be “filed” with the Commission or subject to
this regulation otherwise than as provided in this Rule, or to the liabilities of section 18
of the Act, except to the extent that the registrant specifically requests that it be
treated as a part of the proxy soliciting material or incorporates it in the proxy statement
or other filed report by reference.
(d) An annual report to security holders prepared on an integrated basis
pursuant to General Instruction H to Form 10-K (§ 249.310 of this chapter) may also be
submitted in satisfaction of this section. When filed as the annual report on Form 10-K,
responses to the Items of that form are subject to section 18 of the Act notwithstanding
paragraph (c) of this section.
(e)(1)(i) A registrant will be considered to have delivered an annual
report to security holders, proxy statement or Notice of Internet Availability of Proxy
Materials, as described in § 240.14a-16, to all security holders of record who share an
address if:
(A) The registrant delivers one annual report to security holders, proxy
statement or Notice of Internet Availability of Proxy Materials, as applicable, to the
shared address;
(B) The registrant addresses the annual report to security holders, proxy
statement or Notice of Internet Availability of Proxy Materials, as applicable, to the
security holders as a group (for example, “ABC Fund [or Corporation] Security Holders,”
“Jane Doe and Household,” “The Smith Family”), to each of the security holders individually
(for example, “John Doe and Richard Jones”) or to the security holders in a form to which
each of the security holders has consented in writing;
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Note to paragraph (e)(1)(i)(B):
Unless the registrant addresses the annual report to security
holders, proxy statement or Notice of Internet Availability of Proxy Materials
to the security holders as a group or to each of the security holders
individually, it must obtain, from each security holder to be included in the
household group, a separate affirmative written consent to the specific form of
address the registrant will use.
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(C) The security holders consent, in accordance with paragraph (e)(1)(ii)
of this section, to delivery of one annual report to security holders or proxy statement, as
applicable;
(D) With respect to delivery of the proxy statement or Notice of Internet
Availability of Proxy Materials, the registrant delivers, together with or subsequent to
delivery of the proxy statement, a separate proxy card for each security holder at the
shared address; and
(E) The registrant includes an undertaking in the proxy statement to
deliver promptly upon written or oral request a separate copy of the annual report to
security holders, proxy statement or Notice of Internet Availability of Proxy Materials, as
applicable, to a security holder at a shared address to which a single copy of the document
was delivered.
(ii) Consent — (A) Affirmative written consent. Each
security holder must affirmatively consent, in writing, to delivery of one annual report to
security holders or proxy statement, as applicable. A security holder's affirmative written
consent will be considered valid only if the security holder has been informed of:
(1) The duration of the consent;
(2) The specific types of documents to which the consent will
apply;
(3) The procedures the security holder must follow to revoke
consent; and
(4) The registrant's obligation to begin sending individual copies
to a security holder within thirty days after the security holder revokes consent.
(B) Implied consent. The registrant need not obtain affirmative
written consent from a security holder for purposes of paragraph (e)(1)(ii)(A) of this
section if all of the following conditions are met:
(1) The security holder has the same last name as the other
security holders at the shared address or the registrant reasonably believes that the
security holders are members of the same family;
(2) The registrant has sent the security holder a notice at least
60 days before the registrant begins to rely on this section concerning delivery of annual
reports to security holders, proxy statements or Notices of Internet Availability of Proxy
Materials to that security holder. The notice must:
(i) Be a separate written document;
(ii) State that only one annual report to security holders, proxy
statement or Notice of Internet Availability of Proxy Materials, as applicable, will be
delivered to the shared address unless the registrant receives contrary instructions;
(iii) Include a toll-free telephone number, or be accompanied by a
reply form that is pre-addressed with postage provided, that the security holder can use to
notify the registrant that the security holder wishes to receive a separate annual report to
security holders, proxy statement or Notice of Internet Availability of Proxy Materials;
(iv) State the duration of the consent;
(v) Explain how a security holder can revoke consent;
(vi) State that the registrant will begin sending individual copies
to a security holder within thirty days after the security holder revokes consent; and
(vii) Contain the following prominent statement, or similar clear
and understandable statement, in bold-face type: “Important Notice Regarding Delivery of
Security Holder Documents.” This statement also must appear on the envelope in which the
notice is delivered. Alternatively, if the notice is delivered separately from other
communications to security holders, this statement may appear either on the notice or on the
envelope in which the notice is delivered.
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Note to paragraph (e)(1)(ii)(B)(2):
The notice should be written in plain English. See §
230.421(d)(2) of this chapter for a discussion of plain English principles.
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(3) The registrant has not received the reply form or other
notification indicating that the security holder wishes to continue to receive an individual
copy of the annual report to security holders, proxy statement or Notice of Internet
Availability of Proxy Materials, as applicable, within 60 days after the registrant sent the
notice required by paragraph (e)(1)(ii)(B)(2) of this section; and
(4) The registrant delivers the document to a post office box or
residential street address.
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Note to paragraph (e)(1)(ii)(B)(4):
The registrant can assume that a street address is residential
unless the registrant has information that indicates the street address is a
business.
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(iii) Revocation of consent. If a security holder, orally or in
writing, revokes consent to delivery of one annual report to security holders, proxy
statement or Notice of Internet Availability of Proxy Materials to a shared address, the
registrant must begin sending individual copies to that security holder within 30 days after
the registrant receives revocation of the security holder's consent.
(iv) Definition of address. Unless otherwise indicated, for
purposes of this section, address means a street address, a post office box number,
an electronic mail address, a facsimile telephone number or other similar destination to
which paper or electronic documents are delivered, unless otherwise provided in this
section. If the registrant has reason to believe that the address is a street address of a
multi-unit building, the address must include the unit number.
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Note to paragraph (e)(1):
A person other than the registrant making a proxy solicitation
may deliver a single proxy statement to security holders of record or beneficial
owners who have separate accounts and share an address if: (a) the registrant or
intermediary has followed the procedures in this section; and (b) the registrant
or intermediary makes available the shared address information to the person in
accordance with § 240.14a-7(a)(2)(i) and (ii).
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(2) Notwithstanding paragraphs (a) and (b) of this section, unless state
law requires otherwise, a registrant is not required to send an annual report to security
holders, proxy statement or Notice of Internet Availability of Proxy Materials to a security
holder if:
(i) An annual report to security holders and a proxy statement, or a
Notice of Internet Availability of Proxy Materials, for two consecutive annual meetings;
or
(ii) All, and at least two, payments (if sent by first class mail) of
dividends or interest on securities, or dividend reinvestment confirmations, during a twelve
month period, have been mailed to such security holder's address and have been returned as
undeliverable. If any such security holder delivers or causes to be delivered to the
registrant written notice setting forth his then current address for security holder
communications purposes, the registrant's obligation to deliver an annual report to security
holders, a proxy statement or a Notice of Internet Availability of Proxy Materials under
this section is reinstated.
(f) The provisions of paragraph (a) of this section shall not apply to a
communication made by means of speeches in public forums, press releases, published or
broadcast opinions, statements, or advertisements appearing in a broadcast media, newspaper,
magazine or other bona fide publication disseminated on a regular basis, provided that:
(1) No form of proxy, consent or authorization or means to execute the
same is provided to a security holder in connection with the communication; and
(2) At the time the communication is made, a definitive proxy statement is
on file with the Commission pursuant to § 240.14a-6(b).
[39 FR 40768, Nov. 20, 1974; as amended at 86 FR 2080, Jan. 11, 2021; 86 FR
68330, Dec. 1, 2021; 87 FR 35393, June 10, 2022]
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Editorial Note:
For Federal Register citations
affecting § 240.14a-3, see the List of CFR Sections Affected, which appears in
the Finding Aids section of the printed volume and at www.fdsys.gov.
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240.14a-4 — Requirements as to proxy.
(a) The form of proxy (1) shall indicate in bold-face type whether or not
the proxy is solicited on behalf of the registrant's board of directors or, if provided
other than by a majority of the board of directors, shall indicate in bold-face type on
whose behalf the solicitation is made;
(2) Shall provide a specifically designated blank space for dating the
proxy card; and
(3) Shall identify clearly and impartially each separate matter intended
to be acted upon, whether or not related to or conditioned on the approval of other matters,
and whether proposed by the registrant or by security holders. No reference need be made,
however, to proposals as to which discretionary authority is conferred pursuant to paragraph
(c) of this section.
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Note to paragraph (a)(3)
(Electronic filers):
Electronic filers shall satisfy the filing requirements of
Rule 14a-6(a) or (b) (§ 240.14a-6(a) or (b)) with respect to the form of proxy
by filing the form of proxy as an appendix at the end of the proxy statement.
Forms of proxy shall not be filed as exhibits or separate documents within an
electronic submission.
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(b)(1) Means shall be provided in the form of proxy whereby the person
solicited is afforded an opportunity to specify by boxes a choice between approval or
disapproval of, or abstention with respect to each separate matter referred to therein as
intended to be acted upon, other than elections to office and votes to determine the
frequency of shareholder votes on executive compensation pursuant to § 240.14a-21(b) of this
chapter. A proxy may confer discretionary authority with respect to matters as to which a
choice is not specified by the security holder provided that the form of proxy states in
bold-face type how it is intended to vote the shares represented by the proxy in each such
case.
(2) A form of proxy that provides for the election of directors shall set
forth the names of persons nominated for election as directors, including any person whose
nomination by a shareholder or shareholder group satisfies the requirements of an applicable
state or foreign law provision, or a registrant's governing documents as they relate to the
inclusion of shareholder director nominees in the registrant's proxy materials.
(3) Except as otherwise provided in § 240.14a-19, a form of proxy that
provides for the election of directors may provide a means for the security holder to grant
authority to vote for the nominees set forth, as a group, provided that there is a similar
means for the security holder to withhold authority to vote for such group of nominees (or,
when applicable state law gives legal effect to votes cast against a nominee, a similar
means for the security holder to vote against such group of nominees and a means for
security holders to abstain from voting for such group of nominees). Any such form of proxy
which is executed by the security holder in such manner as not to withhold authority to vote
for the election of any nominee, or not to grant authority to vote against the election of
any nominee, shall be deemed to grant authority to vote for the election of any nominee,
provided that the form of proxy so states in bold-face type. Means to grant authority to
vote for any nominees as a group or to withhold authority for any nominees as a group or to
vote against any nominees as a group may not be provided if the form of proxy includes one
or more shareholder nominees in accordance with an applicable state or foreign law
provision, or a registrant's governing documents as they relate to the inclusion of
shareholder director nominees in the registrant's proxy materials.
(4) When applicable state law gives legal effect to votes cast against a
nominee, then in lieu of providing a means for security holders to withhold authority to
vote, the form of proxy shall provide a means for security holders to vote against each
nominee and a means for security holders to abstain from voting. When applicable state law
does not give legal effect to votes cast against a nominee, such form of proxy shall not
provide a means for security holders to vote against any nominee and such form of proxy
shall clearly provide any of the following means for security holders to withhold authority
to vote for each nominee:
(i) A box opposite the name of each nominee which may be marked to
indicate that authority to vote for such nominee is withheld; or
(ii) An instruction in bold-face type which indicates that the security
holder may withhold authority to vote for any nominee by lining through or otherwise
striking out the name of any nominee; or
(iii) Designated blank spaces in which the security holder may enter the names of nominees
with respect to whom the security holder chooses to withhold authority to vote; or
(iv) Any other similar means, provided that clear instructions are furnished indicating how
the security holder may withhold authority to vote for any nominee.
Instruction 1 to paragraphs (b)(2), (3), and (4). Paragraphs (b)(2), (3), and (4) do not
apply in the case of a merger, consolidation or other plan if the election of directors is
an integral part of the plan.
(5) A form of proxy which provides for a shareholder vote on the frequency
of shareholder votes to approve the compensation of executives required by section 14A(a)(2)
of the Securities Exchange Act of 1934 (15 U.S.C. 78n-1(a)(2)) shall provide means whereby
the person solicited is afforded an opportunity to specify by boxes a choice among 1, 2 or 3
years, or abstain.
(c) A proxy may confer discretionary authority to vote on any of the
following matters:
(1) For an annual meeting of shareholders, if the registrant did not have
notice of the matter at least 45 days before the date on which the registrant first sent its
proxy materials for the prior year's annual meeting of shareholders (or date specified by an
advance notice provision), and a specific statement to that effect is made in the proxy
statement or form of proxy. If during the prior year the registrant did not hold an annual
meeting, or if the date of the meeting has changed more than 30 days from the prior year,
then notice must not have been received a reasonable time before the registrant sends its
proxy materials for the current year.
(2) In the case in which the registrant has received timely notice in
connection with an annual meeting of shareholders (as determined under paragraph (c)(1) of
this section), if the registrant includes, in the proxy statement, advice on the nature of
the matter and how the registrant intends to exercise its discretion to vote on each matter.
However, even if the registrant includes this information in its proxy statement, it may not
exercise discretionary voting authority on a particular proposal if the proponent:
(i) Provides the registrant with a written statement, within the
time-frame determined under paragraph (c)(1) of this section, that the proponent intends to
deliver a proxy statement and form of proxy to holders of at least the percentage of the
company's voting shares required under applicable law to carry the proposal;
(ii) Includes the same statement in its proxy materials filed under §
240.14a-6; and
(iii) Immediately after soliciting the percentage of shareholders required
to carry the proposal, provides the registrant with a statement from any solicitor or other
person with knowledge that the necessary steps have been taken to deliver a proxy statement
and form of proxy to holders of at least the percentage of the company's voting shares
required under applicable law to carry the proposal.
(3) For solicitations other than for annual meetings or for solicitations
by persons other than the registrant, matters which the persons making the solicitation do
not know, a reasonable time before the solicitation, are to be presented at the meeting, if
a specific statement to that effect is made in the proxy statement or form of proxy.
(4) Approval of the minutes of the prior meeting if such approval does not
amount to ratification of the action taken at that meeting;
(5) The election of any person to any office for which a bona fide nominee
is named in a proxy statement and such nominee is unable to serve or for good cause will not
serve.
(6) Any proposal omitted from the proxy statement and form of proxy
pursuant to § 240.14a-8 or § 240.14a-9 of this chapter.
(7) Matters incident to the conduct of the meeting.
(d) No proxy shall confer authority:
(1) To vote for the election of any person to any office for which a bona
fide nominee is not named in the proxy statement:
(i) A person shall not be deemed to be a bona fide nominee and shall not be named as such
unless the person has consented to being named in a proxy statement relating to the
registrant's next annual meeting of shareholders at which directors are to be elected (or a
special meeting in lieu of such meeting) and to serve if elected.
(ii) Notwithstanding paragraph (d)(1)(i) of this section, if the registrant is an
investment company registered under the Investment Company Act of 1940 (15 U.S.C. 80a-1
et seq. ) or a business development company as defined by section 2(a)(48) of the
Investment Company Act of 1940 (15 U.S.C. 80a-2(a)(48)), a person shall not be deemed to be
a bona fide nominee and shall not be named as such unless the person has consented to being
named in the proxy statement and to serve if elected. Provided, however, that nothing in
this section shall prevent any person soliciting in support of nominees who, if elected,
would constitute a minority of the board of directors of an investment company registered
under the Investment Company Act of 1940 or a business development company as defined by
section 2(a)(48) of the Investment Company Act of 1940, from seeking authority to vote for
nominees named in the registrant's proxy statement, so long as the soliciting party:
(A) Seeks authority to vote in the aggregate for the number of director positions then
subject to election;
(B) Represents that it will vote for all the registrant nominees, other than those
registrant nominees specified by the soliciting party;
(C) Provides the security holder an opportunity to withhold authority with respect to any
other registrant nominee by writing the name of that nominee on the form of proxy; and
(D) States on the form of proxy and in the proxy statement that there is no assurance that
the registrant's nominees will serve if elected with any of the soliciting party's
nominees;
(2) To vote at any annual meeting other than the next annual meeting (or
any adjournment thereof) to be held after the date on which the proxy statement and form of
proxy are first sent or given to security holders;
(3) To vote with respect to more than one meeting (and any adjournment
thereof) or more than one consent solicitation; or
(4) To consent to or authorize any action other than the action proposed
to be taken in the proxy statement, or matters referred to in paragraph (c) of this
section.
(e) The proxy statement or form of proxy shall provide, subject to
reasonable specified conditions, that the shares represented by the proxy will be voted and
that where the person solicited specifies by means of a ballot provided pursuant to
paragraph (b) of this section a choice with respect to any matter to be acted upon, the
shares will be voted in accordance with the specifications so made.
(f) No person conducting a solicitation subject to this regulation shall
deliver a form of proxy, consent or authorization to any security holder unless the security
holder concurrently receives, or has previously received, a definitive proxy statement that
has been filed with the Commission pursuant to § 240.14a-6(b).
[17 FR 11432, Dec. 18, 1952, as amended at 31 FR 212, Jan. 7, 1966; 32 FR
20963, Dec. 29, 1967; 44 FR 68770, Nov. 29, 1979; 45 FR 76979, Nov. 21, 1980; 51 FR 42060,
Nov. 20, 1986; 57 FR 48291, Oct. 22, 1992; 59 FR 67764, Dec. 30, 1994; 63 FR 29118, May
28, 1998; 63 FR 50622, Sept. 22, 1998; 64 FR 61456, Nov. 10, 1999; 72 FR 4167, Jan. 29,
2007; 76 FR 6045, Feb. 2, 2011; 75 FR 56781, Sept. 16, 2010; 86 FR 68330, Dec. 1,
2021]
240.14a-5 — Presentation of information in proxy statement.
(a) The information included in the proxy statement shall be clearly
presented and the statements made shall be divided into groups according to subject matter
and the various groups of statements shall be preceded by appropriate headings. The order of
items and sub-items in the schedule need not be followed. Where practicable and appropriate,
the information shall be presented in tabular form. All amounts shall be stated in figures.
Information required by more than one applicable item need not be repeated. No statement
need be made in response to any item or sub-item which is inapplicable.
(b) Any information required to be included in the proxy statement as to
terms of securities or other subject matter which from a standpoint of practical necessity
must be determined in the future may be stated in terms of present knowledge and intention.
To the extent practicable, the authority to be conferred concerning each such matter shall
be confined within limits reasonably related to the need for discretionary authority.
Subject to the foregoing, information which is not known to the persons on whose behalf the
solicitation is to be made and which it is not reasonably within the power of such persons
to ascertain or procure may be omitted, if a brief statement of the circumstances rendering
such information unavailable is made.
(c) Any information contained in any other proxy soliciting material which
has been or will be furnished to each person solicited in connection with the same meeting
or subject matter may be omitted from the proxy statement, if a clear reference is made to
the particular document containing such information.
(d)(1) All printed proxy statements shall be in roman type at least as
large and as legible as 10-point modern type, except that to the extent necessary for
convenient presentation financial statements and other tabular data, but not the notes
thereto, may be in roman type at least as large and as legible as 8-point modern type. All
such type shall be leaded at least 2 points.
(2) Where a proxy statement is delivered through an electronic medium,
issuers may satisfy legibility requirements applicable to printed documents, such as type
size and font, by presenting all required information in a format readily communicated to
investors.
(e) All proxy statements shall disclose, under an appropriate caption, the
following dates:
(1) The deadline for submitting shareholder proposals for inclusion in the
registrant's proxy statement and form of proxy for the registrant's next annual meeting,
calculated in the manner provided in § 240.14a-8(e)(Question 5);
(2) The date after which notice of a shareholder proposal submitted
outside the processes of § 240.14a-8 is considered untimely, either calculated in the manner
provided by § 240.14a-4(c)(1) or as established by the registrant's advance notice
provision, if any, authorized by applicable state law;
(3) The deadline for submitting nominees for inclusion in the registrant's
proxy statement and form of proxy pursuant to an applicable state or foreign law provision
or a registrant's governing documents as they relate to the inclusion of shareholder
director nominees in the registrant's proxy materials for the registrant's next annual
meeting of shareholders; and
(4) The deadline for providing notice of a solicitation of proxies in support of director
nominees other than the registrant's nominees pursuant to § 240.14a-19 for the registrant's
next annual meeting unless the registrant is an investment company registered under the
Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq. ) or a business development
company as defined by section 2(a)(48) of the Investment Company Act of 1940 (15 U.S.C.
80a-2(a)(48)).
(f) If the date of the next annual meeting is subsequently advanced or
delayed by more than 30 calendar days from the date of the annual meeting to which the proxy
statement relates, the registrant shall, in a timely manner, inform shareholders of such
change, and the new dates referred to in paragraphs (e)(1) and (e)(2) of this section, by
including a notice, under Item 5, in its earliest possible quarterly report on Form 10-Q (§
249.308a of this chapter), or, in the case of investment companies, in a shareholder report
under § 270.30d-1 of this chapter under the Investment Company Act of 1940, or, if
impracticable, any means reasonably calculated to inform shareholders.
[17 FR 11432, Dec. 18, 1952, as amended at 36 FR 8935, May 15, 1971; 37 FR
23179, Oct. 31, 1972; 44 FR 68770, Nov. 29, 1979; 51 FR 42061, Nov. 20, 1986; 61 FR 24656,
May 15, 1996; 63 FR 29118, May 28, 1998; 63 FR 46881, Sept. 3, 1998; 73 FR 977, Jan. 4,
2008; 75 FR 56782, Sept. 16, 2010; 86 FR 68330, Dec. 1, 2021; 90 FR 9684, Feb. 18,
2025]
240.14a-6 — Filing requirements.
(a) Preliminary proxy statement. Five preliminary copies of the
proxy statement and form of proxy shall be filed with the Commission at least 10 calendar
days prior to the date definitive copies of such material are first sent or given to
security holders, or such shorter period prior to that date as the Commission may authorize
upon a showing of good cause thereunder. A registrant, however, shall not file with the
Commission a preliminary proxy statement, form of proxy or other soliciting material to be
furnished to security holders concurrently therewith if the solicitation relates to an
annual (or special meeting in lieu of the annual) meeting, or for an investment company
registered under the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.) or a business
development company, if the solicitation relates to any meeting of security holders at which
the only matters to be acted upon are:
(1) The election of directors;
(2) The election, approval or ratification of accountant(s);
(3) A security holder proposal included pursuant to Rule 14a-8 (§
240.14a-8 of this chapter);
(4) A shareholder nominee for director included pursuant to an applicable
state or foreign law provision or a registrant's governing documents as they relate to the
inclusion of shareholder director nominees in the registrant's proxy materials.
(5) The approval or ratification of a plan as defined in paragraph
(a)(6)(ii) of Item 402 of Regulation S-K (§ 229.402(a)(6)(ii) of this chapter) or amendments
to such a plan;
(6) With respect to an investment company registered under the Investment
Company Act of 1940 or a business development company, a proposal to continue, without
change, any advisory or other contract or agreement that previously has been the subject of
a proxy solicitation for which proxy material was filed with the Commission pursuant to this
section;
(7) With respect to an open-end investment company registered under the
Investment Company Act of 1940, a proposal to increase the number of shares authorized to be
issued; and/or
(8) A vote to approve the compensation of executives as required pursuant
to section 14A(a)(1) of the Securities Exchange Act of 1934 (15 U.S.C. 78n-1(a)(1)) and §
240.14a-21(a) of this chapter, or pursuant to section 111(e)(1) of the Emergency Economic
Stabilization Act of 2008 (12 U.S.C. 5221(e)(1)) and § 240.14a-20 of this chapter, a vote to
determine the frequency of shareholder votes to approve the compensation of executives as
required pursuant to Section 14A(a)(2) of the Securities Exchange Act of 1934 (15 U.S.C.
78n-1(a)(2)) and § 240.14a-21(b) of this chapter, or any other shareholder advisory vote on
executive compensation.
This exclusion from filing preliminary proxy material
does not apply if the registrant comments upon or refers to a solicitation in opposition in
connection with the meeting in its proxy material.
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Note 1 to paragraph (a):
The filing of revised material does not recommence the ten day
time period unless the revised material contains material revisions or material
new proposal(s) that constitute a fundamental change in the proxy material.
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Note 2 to paragraph (a):
The official responsible for the preparation of the proxy
material should make every effort to verify the accuracy and completeness of the
information required by the applicable rules. The preliminary material should be
filed with the Commission at the earliest practicable date.
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Note 3 to paragraph (a):
Solicitation in Opposition. For purposes of the exclusion from
filing preliminary proxy material, a “solicitation in opposition” includes: {a}
Any solicitation opposing a proposal supported by the registrant; {b} any
solicitation supporting a proposal that the registrant does not expressly
support, other than a security holder proposal included in the registrant's
proxy material pursuant to § 240.14a-8; and {c} any solicitation subject to
§ 240.14a-19. The inclusion of a security holder proposal in the registrant's
proxy material pursuant to § 240.14a-8 does not constitute a “solicitation in
opposition,” even if the registrant opposes the proposal and/or includes a
statement in opposition to the proposal. The inclusion of a shareholder nominee
in the registrant's proxy materials pursuant to an applicable state or foreign
law provision, or a registrant's governing documents as they relate to the
inclusion of shareholder director nominees in the registrant's proxy materials
does not constitute a “solicitation in opposition” for purposes of paragraph (a)
of this section, even if the registrant opposes the shareholder nominee and
solicits against the shareholder nominee and in favor of a registrant
nominee.
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Note 4 to paragraph (a):
A registrant that is filing proxy material in preliminary form
only because the registrant has commented on or referred to a solicitation in
opposition should indicate that fact in a transmittal letter when filing the
preliminary material with the Commission.
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(b) Definitive proxy statement and other soliciting material. Eight
definitive copies of the proxy statement, form of proxy and all other soliciting materials,
in the same form as the materials sent to security holders, must be filed with the
Commission no later than the date they are first sent or given to security holders. Three
copies of these materials also must be filed with, or mailed for filing to, each national
securities exchange on which the registrant has a class of securities listed and
registered.
(c) Personal solicitation materials. If part or all of the
solicitation involves personal solicitation, then eight copies of all written instructions
or other materials that discuss, review or comment on the merits of any matter to be acted
on, that are furnished to persons making the actual solicitation for their use directly or
indirectly in connection with the solicitation, must be filed with the Commission no later
than the date the materials are first sent or given to these persons.
(d) Release dates. All preliminary proxy statements and forms of
proxy filed pursuant to paragraph (a) of this section shall be accompanied by a statement of
the date on which definitive copies thereof filed pursuant to paragraph (b) of this section
are intended to be released to security holders. All definitive material filed pursuant to
paragraph (b) of this section shall be accompanied by a statement of the date on which
copies of such material were released to security holders, or, if not released, the date on
which copies thereof are intended to be released. All material filed pursuant to paragraph
(c) of this section shall be accompanied by a statement of the date on which copies thereof
were released to the individual who will make the actual solicitation or if not released,
the date on which copies thereof are intended to be released.
(e)(1) Public availability of information. All copies of
preliminary proxy statements and forms of proxy filed pursuant to paragraph (a) of this
section shall be clearly marked “Preliminary Copies,” and shall be deemed immediately
available for public inspection unless confidential treatment is obtained pursuant to
paragraph (e)(2) of this section.
(2) Confidential treatment. If action will be taken on any matter
specified in Item 14 of Schedule 14A (§ 240.14a-101), all copies of the preliminary proxy
statement and form of proxy filed under paragraph (a) of this section will be for the
information of the Commission only and will not be deemed available for public inspection
until filed with the Commission in definitive form so long as:
(i) The proxy statement does not relate to a matter or proposal subject to
§ 240.13e-3 or a roll-up transaction as defined in Item 901(c) of Regulation S-K (§
229.901(c) of this chapter);
(ii) Neither the parties to the transaction nor any persons authorized to
act on their behalf have made any public communications relating to the transaction except
for statements where the content is limited to the information specified in § 230.135 of
this chapter; and
(iii) The materials are filed in paper and marked “Confidential, For Use
of the Commission Only.” In all cases, the materials may be disclosed to any department or
agency of the United States Government and to the Congress, and the Commission may make any
inquiries or investigation into the materials as may be necessary to conduct an adequate
review by the Commission.
Instruction to paragraph (e)(2): If communications are made publicly that go beyond
the information specified in § 230.135 of this chapter, the preliminary proxy materials must
be re-filed promptly with the Commission as public materials.
(f) Communications not required to be filed. Copies of replies to
inquiries from security holders requesting further information and copies of communications
which do no more than request that forms of proxy theretofore solicited be signed and
returned need not be filed pursuant to this section.
(g) Solicitations subject to § 240.14a-2(b)(1). (1) Any person
who:
(i) Engages in a solicitation pursuant to § 240.14a-2(b)(1), and
(ii) At the commencement of that solicitation owns beneficially securities
of the class which is the subject of the solicitation with a market value of over $5
million,
shall furnish or mail to the Commission, not later
than three days after the date the written solicitation is first sent or given to any
security holder, five copies of a statement containing the information specified in the
Notice of Exempt Solicitation (§ 240.14a-103) which statement shall attach as an exhibit all
written soliciting materials. Five copies of an amendment to such statement shall be
furnished or mailed to the Commission, in connection with dissemination of any additional
communications, not later than three days after the date the additional material is first
sent or given to any security holder. Three copies of the Notice of Exempt Solicitation and
amendments thereto shall, at the same time the materials are furnished or mailed to the
Commission, be furnished or mailed to each national securities exchange upon which any class
of securities of the registrant is listed and registered.
(2) Notwithstanding paragraph (g)(1) of this section, no such submission
need be made with respect to oral solicitations (other than with respect to scripts used in
connection with such oral solicitations), speeches delivered in a public forum, press
releases, published or broadcast opinions, statements, and advertisements appearing in a
broadcast media, or a newspaper, magazine or other bona fide publication disseminated on a
regular basis.
(h) Revised material. Where any proxy statement, form of proxy or
other material filed pursuant to this section is amended or revised, two of the copies of
such amended or revised material filed pursuant to this section (or in the case of
investment companies registered under the Investment Company Act of 1940, three of such
copies) shall be marked to indicate clearly and precisely the changes effected therein. If
the amendment or revision alters the text of the material the changes in such text shall be
indicated by means of underscoring or in some other appropriate manner.
(i) Fees. At the time of filing the proxy solicitation material,
the persons upon whose behalf the solicitation is made, other than investment companies
registered under the Investment Company Act of 1940, shall pay to the Commission the
following applicable fee:
(1) For preliminary proxy material involving acquisitions, mergers,
spinoffs, consolidations or proposed sales or other dispositions of substantially all the
assets of the company, a fee established in accordance with Rule 0-11 (§ 240.0-11 of this
chapter) shall be paid. No refund shall be given.
(2) For all other proxy submissions and submissions made pursuant to §
240.14a-6(g), no fee shall be required.
(j) Merger proxy materials. (1) Any proxy statement, form of proxy
or other soliciting material required to be filed by this section that also is either
(i) Included in a registration statement filed under the Securities Act of
1933 on Forms S-4 (§ 239.25 of this chapter), F-4 (§ 239.34 of this chapter) or N-14 (§
239.23 of this chapter); or
(ii) Filed under § 230.424, § 230.425 or § 230.497 of this chapter is
required to be filed only under the Securities Act, and is deemed filed under this
section.
(2) Under paragraph (j)(1) of this section, the fee required by paragraph
(i) of this section need not be paid.
(k) Computing time periods. In computing time periods beginning
with the filing date specified in Regulation 14A (§§ 240.14a-1 to 240.14b-1 of this
chapter), the filing date shall be counted as the first day of the time period and midnight
of the last day shall constitute the end of the specified time period.
(l) Roll-up transactions. If a transaction is a roll-up transaction
as defined in Item 901(c) of Regulation S-K (17 CFR 229.901(c)) and is registered (or
authorized to be registered) on Form S-4 (17 CFR 229.25) or Form F-4 (17 CFR 229.34), the
proxy statement of the sponsor or the general partner as defined in Item 901(d) and Item
901(a), respectively, of Regulation S-K (17 CFR 229.901) must be distributed to security
holders no later than the lesser of 60 calendar days prior to the date on which the meeting
of security holders is held or action is taken, or the maximum number of days permitted for
giving notice under applicable state law.
(m) Cover page. Proxy materials filed with the Commission shall
include a cover page in the form set forth in Schedule 14A (§ 240.14a-101 of this chapter).
The cover page required by this paragraph need not be distributed to security holders.
(n) Solicitations subject to § 240.14a-2(b)(4). Any person who:
(1) Engages in a solicitation pursuant to § 240.14a-2(b)(4); and
(2) At the commencement of that solicitation both owns five percent (5%)
or more of the outstanding securities of a class that is the subject of the proposed roll-up
transaction, and engages in the business of buying and selling limited partnership interests
in the secondary market, shall furnish or mail to the Commission, not later than three days
after the date an oral or written solicitation by that person is first made, sent or
provided to any security holder, five copies of a statement containing the information
specified in the Notice of Exempt Preliminary Roll-up Communication (§ 240.14a-104). Five
copies of any amendment to such statement shall be furnished or mailed to the Commission not
later than three days after a communication containing revised material is first made, sent
or provided to any security holder.
(o) Solicitations before furnishing a definitive proxy statement.
Solicitations that are published, sent or given to security holders before they have been
furnished a definitive proxy statement must be made in accordance with § 240.14a-12 unless
there is an exemption available under § 240.14a-2.
(p) [Reserved]
(q) De-SPAC transactions. If a transaction is a de-SPAC transaction, as defined in
§ 229.1601(a) of this chapter (Item 1601(a) of Regulation S-K), the proxy statement of the
special purpose acquisition company, as defined in § 229.1601(b) of this chapter (Item
1601(b) of Regulation S-K), must be distributed to security holders no later than the lesser
of 20 calendar days prior to the date on which the meeting of security holders is to be held
or action is to be taken in connection with the de-SPAC transaction or the maximum number of
days permitted for disseminating the proxy statement under the applicable laws of the
jurisdiction of incorporation or organization.
[17 FR 11432, Dec. 18, 1952; as amended at 86 FR 68330, Dec. 1, 2021; 89 FR
14158, Feb. 26, 2024; 90 FR 9684, Feb. 18, 2025]
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Editorial Note:
For Federal Register citations
affecting § 240.14a-6, see the List of CFR Sections Affected, which appears in
the Finding Aids section of the printed volume and at www.fdsys.gov.
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240.14a-7 — Obligations of registrants to provide a list of, or mail soliciting material to, security holders.
(a) If the registrant has made or intends to make a proxy solicitation in
connection with a security holder meeting or action by consent or authorization, upon the
written request by any record or beneficial holder of securities of the class entitled to
vote at the meeting or to execute a consent or authorization to provide a list of security
holders or to mail the requesting security holder's materials, regardless of whether the
request references this section, the registrant shall:
(1) Deliver to the requesting security holder within five business days
after receipt of the request:
(i) Notification as to whether the registrant has elected to mail the
security holder's soliciting materials or provide a security holder list if the election
under paragraph (b) of this section is to be made by the registrant;
(ii) A statement of the approximate number of record holders and
beneficial holders, separated by type of holder and class, owning securities in the same
class or classes as holders which have been or are to be solicited on management's behalf,
or any more limited group of such holders designated by the security holder if available or
retrievable under the registrant's or its transfer agent's security holder data systems;
and
(iii) The estimated cost of mailing a proxy statement, form of proxy or
other communication to such holders, including to the extent known or reasonably available,
the estimated costs of any bank, broker, and similar person through whom the registrant has
solicited or intends to solicit beneficial owners in connection with the security holder
meeting or action;
(2) Perform the acts set forth in either paragraphs (a)(2)(i) or
(a)(2)(ii) of this section, at the registrant's or requesting security holder's option, as
specified in paragraph (b) of this section:
(i) Send copies of any proxy statement, form of proxy, or other soliciting
material, including a Notice of Internet Availability of Proxy Materials (as described in §
240.14a-16), furnished by the security holder to the record holders, including banks,
brokers, and similar entities, designated by the security holder. A sufficient number of
copies must be sent to the banks, brokers, and similar entities for distribution to all
beneficial owners designated by the security holder. The security holder may designate only
record holders and/or beneficial owners who have not requested paper and/ or e-mail copies
of the proxy statement. If the registrant has received affirmative written or implied
consent to deliver a single proxy statement to security holders at a shared address in
accordance with the procedures in § 240.14a-3(e)(1), a single copy of the proxy statement or
Notice of Internet Availability of Proxy Materials furnished by the security holder shall be
sent to that address, provided that if multiple copies of the Notice of Internet
Availability of Proxy Materials are furnished by the security holder for that address, the
registrant shall deliver those copies in a single envelope to that address. The registrant
shall send the security holder material with reasonable promptness after tender of the
material to be sent, envelopes or other containers therefore, postage or payment for postage
and other reasonable expenses of effecting such distribution. The registrant shall not be
responsible for the content of the material; or
(ii) Deliver the following information to the requesting security holder
within five business days of receipt of the request:
(A) A reasonably current list of the names, addresses and security
positions of the record holders, including banks, brokers and similar entities holding
securities in the same class or classes as holders which have been or are to be solicited on
management's behalf, or any more limited group of such holders designated by the security
holder if available or retrievable under the registrant's or its transfer agent's security
holder data systems;
(B) The most recent list of names, addresses and security positions of
beneficial owners as specified in § 240.14a-13(b), in the possession, or which subsequently
comes into the possession, of the registrant;
(C) The names of security holders at a shared address that have consented
to delivery of a single copy of proxy materials to a shared address, if the registrant has
received written or implied consent in accordance with § 240.14a-3(e)(1); and
(D) If the registrant has relied on § 240.14a-16, the names of security
holders who have requested paper copies of the proxy materials for all meetings and the
names of security holders who, as of the date that the registrant receives the request, have
requested paper copies of the proxy materials only for the meeting to which the solicitation
relates.
(iii) All security holder list information shall be in the form requested
by the security holder to the extent that such form is available to the registrant without
undue burden or expense. The registrant shall furnish the security holder with updated
record holder information on a daily basis or, if not available on a daily basis, at the
shortest reasonable intervals; provided, however, the registrant need not provide beneficial
or record holder information more current than the record date for the meeting or
action.
(b)(1) The requesting security holder shall have the options set forth in
paragraph (a)(2) of this section, and the registrant shall have corresponding obligations,
if the registrant or general partner or sponsor is soliciting or intends to solicit with
respect to:
(i) A proposal that is subject to § 240.13e-3;
(ii) A roll-up transaction as defined in Item 901(c) of Regulation S-K (§
229.901(c) of this chapter) that involves an entity with securities registered pursuant to
Section 12 of the Act (15 U.S.C. 78l); or
(iii) A roll-up transaction as defined in Item 901(c) of Regulation S-K (§
229.901(c) of this chapter) that involves a limited partnership, unless the transaction
involves only:
(A) Partnerships whose investors will receive new securities or securities
in another entity that are not reported under a transaction reporting plan declared
effective before December 17, 1993 by the Commission under Section 11A of the Act (15 U.S.C.
78k-1); or
(B) Partnerships whose investors' securities are reported under a
transaction reporting plan declared effective before December 17, 1993 by the Commission
under Section 11A of the Act (15 U.S.C. 78k-1).
(2) With respect to all other requests pursuant to this section, the
registrant shall have the option to either mail the security holder's material or furnish
the security holder list as set forth in this section.
(c) At the time of a list request, the security holder making the request
shall:
(1) If holding the registrant's securities through a nominee, provide the
registrant with a statement by the nominee or other independent third party, or a copy of a
current filing made with the Commission and furnished to the registrant, confirming such
holder's beneficial ownership; and
(2) Provide the registrant with an affidavit, declaration, affirmation or
other similar document provided for under applicable state law identifying the proposal or
other corporate action that will be the subject of the security holder's solicitation or
communication and attesting that:
(i) The security holder will not use the list information for any purpose
other than to solicit security holders with respect to the same meeting or action by consent
or authorization for which the registrant is soliciting or intends to solicit or to
communicate with security holders with respect to a solicitation commenced by the
registrant; and
(ii) The security holder will not disclose such information to any person
other than a beneficial owner for whom the request was made and an employee or agent to the
extent necessary to effectuate the communication or solicitation.
(d) The security holder shall not use the information furnished by the
registrant pursuant to paragraph (a)(2)(ii) of this section for any purpose other than to
solicit security holders with respect to the same meeting or action by consent or
authorization for which the registrant is soliciting or intends to solicit or to communicate
with security holders with respect to a solicitation commenced by the registrant; or
disclose such information to any person other than an employee, agent, or beneficial owner
for whom a request was made to the extent necessary to effectuate the communication or
solicitation. The security holder shall return the information provided pursuant to
paragraph (a)(2)(ii) of this section and shall not retain any copies thereof or of any
information derived from such information after the termination of the solicitation.
(e) The security holder shall reimburse the reasonable expenses incurred
by the registrant in performing the acts requested pursuant to paragraph (a) of this
section.
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Note 1 to § 240.14a-7.
Reasonably prompt methods of distribution to security holders
may be used instead of mailing. If an alternative distribution method is chosen,
the costs of that method should be considered where necessary rather than the
costs of mailing.
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Note 2 to § 240.14a-7
When providing the information required by §
240.14a-7(a)(1)(ii), if the registrant has received affirmative written or
implied consent to delivery of a single copy of proxy materials to a shared
address in accordance with § 240.14a-3(e)(1), it shall exclude from the number
of record holders those to whom it does not have to deliver a separate proxy
statement.
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[57 FR 48292, Oct. 22, 1992, as amended at 59 FR
63684, Dec. 8, 1994; 61 FR 24657, May 15, 1996; 65 FR 65750, Nov. 2, 2000; 72 FR 4167,
Jan. 29, 2007; 72 FR 42238, Aug. 1, 2007]
240.14a-8 — Shareholder proposals.
This section addresses when a company must include a shareholder's
proposal in its proxy statement and identify the proposal in its form of proxy when the
company holds an annual or special meeting of shareholders. In summary, in order to have
your shareholder proposal included on a company's proxy card, and included along with any
supporting statement in its proxy statement, you must be eligible and follow certain
procedures. Under a few specific circumstances, the company is permitted to exclude your
proposal, but only after submitting its reasons to the Commission. We structured this
section in a question-and-answer format so that it is easier to understand. The references
to “you” are to a shareholder seeking to submit the proposal.
(a) Question 1: What is a proposal? A shareholder proposal is your
recommendation or requirement that the company and/or its board of directors take action,
which you intend to present at a meeting of the company's shareholders. Your proposal should
state as clearly as possible the course of action that you believe the company should
follow. If your proposal is placed on the company's proxy card, the company must also
provide in the form of proxy means for shareholders to specify by boxes a choice between
approval or disapproval, or abstention. Unless otherwise indicated, the word “proposal” as
used in this section refers both to your proposal, and to your corresponding statement in
support of your proposal (if any).
(b) Question 2: Who is eligible to submit a proposal, and how do I
demonstrate to the company that I am eligible?
(1) To be eligible to submit a proposal, you must satisfy the following requirements:
(i) You must have continuously held:
(A) At least $2,000 in market value of the company's securities entitled to vote on the
proposal for at least three years; or
(B) At least $15,000 in market value of the company's securities entitled to vote on the
proposal for at least two years; or
(C) At least $25,000 in market value of the company's securities entitled
to vote on the proposal for at least one year; and
(ii) You must provide the company with a written statement that you intend to continue to
hold the requisite amount of securities, determined in accordance with paragraph
(b)(1)(i)(A) through (C) of this section, through the date of the shareholders' meeting for
which the proposal is submitted; and
(iii) You must provide the company with a written statement that you are able to meet with
the company in person or via teleconference no less than 10 calendar days, nor more than 30
calendar days, after submission of the shareholder proposal. You must include your contact
information as well as business days and specific times that you are available to discuss
the proposal with the company. You must identify times that are within the regular business
hours of the company's principal executive offices. If these hours are not disclosed in the
company's proxy statement for the prior year's annual meeting, you must identify times that
are between 9 a.m. and 5:30 p.m. in the time zone of the company's principal executive
offices. If you elect to co-file a proposal, all co-filers must either:
(A) Agree to the same dates and times of availability, or
(B) Identify a single lead filer who will provide dates and times of the lead filer's
availability to engage on behalf of all co-filers; and
(iv) If you use a representative to submit a shareholder proposal on your behalf, you must
provide the company with written documentation that:
(A) Identifies the company to which the proposal is directed;
(B) Identifies the annual or special meeting for which the proposal is submitted;
(C) Identifies you as the proponent and identifies the person acting on your behalf as your
representative;
(D) Includes your statement authorizing the designated representative to submit the
proposal and otherwise act on your behalf;
(E) Identifies the specific topic of the proposal to be submitted;
(F) Includes your statement supporting the proposal; and
(G) Is signed and dated by you.
(v) The requirements of paragraph (b)(1)(iv) of this section shall not apply to
shareholders that are entities so long as the representative's authority to act on the
shareholder's behalf is apparent and self-evident such that a reasonable person would
understand that the agent has authority to submit the proposal and otherwise act on the
shareholder's behalf.
(vi) For purposes of paragraph (b)(1)(i) of this section, you may not aggregate your
holdings with those of another shareholder or group of shareholders to meet the requisite
amount of securities necessary to be eligible to submit a proposal.
(2) One of the following methods must be used to demonstrate your eligibility to submit a
proposal:
(i) If you are the registered holder of your securities, which means that your Start
Printed Page 70295name appears in the company's records as a shareholder, the company can
verify your eligibility on its own, although you will still have to provide the company with
a written statement that you intend to continue to hold the requisite amount of securities,
determined in accordance with paragraph (b)(1)(i)(A) through (C) of this section, through
the date of the meeting of shareholders.
(ii) If, like many shareholders, you are not a registered holder, the company likely does
not know that you are a shareholder, or how many shares you own. In this case, at the time
you submit your proposal, you must prove your eligibility to the company in one of two
ways:
(A) The first way is to submit to the company a written statement from the “record” holder
of your securities (usually a broker or bank) verifying that, at the time you submitted your
proposal, you continuously held at least $2,000, $15,000, or $25,000 in market value of the
company's securities entitled to vote on the proposal for at least three years, two years,
or one year, respectively. You must also include your own written statement that you intend
to continue to hold the requisite amount of securities, determined in accordance with
paragraph (b)(1)(i)(A) through (C) of this section, through the date of the shareholders'
meeting for which the proposal is submitted; or
(B) The second way to prove ownership applies only if you were required to file, and filed,
a Schedule 13D (§ 240.13d-101), Schedule 13G (§ 240.13d-102), Form 3 (§ 249.103 of this
chapter), Form 4 (§ 249.104 of this chapter), and/or Form 5 (§ 249.105 of this chapter), or
amendments to those documents or updated forms, demonstrating that you meet at least one of
the share ownership requirements under paragraph (b)(1)(i)(A) through (C) of this section.
If you have filed one or more of these documents with the SEC, you may demonstrate your
eligibility to submit a proposal by submitting to the company:
(1) A copy of the schedule(s) and/or form(s), and any subsequent amendments reporting a
change in your ownership level;
(2) Your written statement that you continuously held at least $2,000, $15,000, or $25,000
in market value of the company's securities entitled to vote on the proposal for at least
three years, two years, or one year, respectively; and
(3) Your written statement that you intend to continue to hold the requisite amount of
securities, determined in accordance with paragraph (b)(1)(i)(A) through (C) of this
section, through the date of the company's annual or special meeting.
(3) If you continuously held at least $2,000 of a company's securities entitled to vote on
the proposal for at least one year as of January 4, 2021, and you have continuously
maintained a minimum investment of at least $2,000 of such securities from January 4, 2021
through the date the proposal is submitted to the company, you will be eligible to submit a
proposal to such company for an annual or special meeting to be held prior to January 1,
2023. If you rely on this provision, you must provide the company with your written
statement that you intend to continue to hold at least $2,000 of such securities through the
date of the shareholders' meeting for which the proposal is submitted. You must also follow
the procedures set forth in paragraph (b)(2) of this section to demonstrate that:
(i) You continuously held at least $2,000 of the company's securities entitled to vote on
the proposal for at least one year as of January 4, 2021; and
(ii) You have continuously maintained a minimum investment of at least $2,000 of such
securities from January 4, 2021 through the date the proposal is submitted to the
company.
(iii) This paragraph (b)(3) will expire on January 1, 2023.
(c) Question 3: How many proposals may I submit? Each person may submit no more than one
proposal, directly or indirectly, to a company for a particular shareholders' meeting. A
person may not rely on the securities holdings of another person for the purpose of meeting
the eligibility requirements and submitting multiple proposals for a particular
shareholders' meeting.
(d) Question 4: How long can my proposal be? The proposal,
including any accompanying supporting statement, may not exceed 500 words.
(e) Question 5: What is the deadline for submitting a proposal? (1)
If you are submitting your proposal for the company's annual meeting, you can in most cases
find the deadline in last year's proxy statement. However, if the company did not hold an
annual meeting last year, or has changed the date of its meeting for this year more than 30
days from last year's meeting, you can usually find the deadline in one of the company's
quarterly reports on Form 10-Q (§ 249.308a of this chapter), or in shareholder reports of
investment companies under § 270.30d-1 of this chapter of the Investment Company Act of
1940. In order to avoid controversy, shareholders should submit their proposals by means,
including electronic means, that permit them to prove the date of delivery.
(2) The deadline is calculated in the following manner if the proposal is
submitted for a regularly scheduled annual meeting. The proposal must be received at the
company's principal executive offices not less than 120 calendar days before the date of the
company's proxy statement released to shareholders in connection with the previous year's
annual meeting. However, if the company did not hold an annual meeting the previous year, or
if the date of this year's annual meeting has been changed by more than 30 days from the
date of the previous year's meeting, then the deadline is a reasonable time before the
company begins to print and send its proxy materials.
(3) If you are submitting your proposal for a meeting of shareholders
other than a regularly scheduled annual meeting, the deadline is a reasonable time before
the company begins to print and send its proxy materials.
(f) Question 6: What if I fail to follow one of the eligibility or
procedural requirements explained in answers to Questions 1 through 4 of this section? (1)
The company may exclude your proposal, but only after it has notified you of the problem,
and you have failed adequately to correct it. Within 14 calendar days of receiving your
proposal, the company must notify you in writing of any procedural or eligibility
deficiencies, as well as of the time frame for your response. Your response must be
postmarked, or transmitted electronically, no later than 14 days from the date you received
the company's notification. A company need not provide you such notice of a deficiency if
the deficiency cannot be remedied, such as if you fail to submit a proposal by the company's
properly determined deadline. If the company intends to exclude the proposal, it will later
have to make a submission under § 240.14a-8 and provide you with a copy under Question 10
below, § 240.14a-8(j).
(2) If you fail in your promise to hold the required number of securities
through the date of the meeting of shareholders, then the company will be permitted to
exclude all of your proposals from its proxy materials for any meeting held in the following
two calendar years.
(g) Question 7: Who has the burden of persuading the Commission or
its staff that my proposal can be excluded? Except as otherwise noted, the burden is on the
company to demonstrate that it is entitled to exclude a proposal.
(h) Question 8: Must I appear personally at the shareholders'
meeting to present the proposal? (1) Either you, or your representative who is qualified
under state law to present the proposal on your behalf, must attend the meeting to present
the proposal. Whether you attend the meeting yourself or send a qualified representative to
the meeting in your place, you should make sure that you, or your representative, follow the
proper state law procedures for attending the meeting and/or presenting your proposal.
(2) If the company holds its shareholder meeting in whole or in part via
electronic media, and the company permits you or your representative to present your
proposal via such media, then you may appear through electronic media rather than traveling
to the meeting to appear in person.
(3) If you or your qualified representative fail to appear and present the
proposal, without good cause, the company will be permitted to exclude all of your proposals
from its proxy materials for any meetings held in the following two calendar years.
(i) Question 9: If I have complied with the procedural
requirements, on what other bases may a company rely to exclude my proposal? (1) Improper
under state law: If the proposal is not a proper subject for action by shareholders under
the laws of the jurisdiction of the company's organization;
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Note to paragraph (i)(1):
Depending on the subject matter, some proposals are not
considered proper under state law if they would be binding on the company if
approved by shareholders. In our experience, most proposals that are cast as
recommendations or requests that the board of directors take specified action
are proper under state law. Accordingly, we will assume that a proposal drafted
as a recommendation or suggestion is proper unless the company demonstrates
otherwise.
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(2) Violation of law: If the proposal would, if implemented, cause
the company to violate any state, federal, or foreign law to which it is subject;
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Note to paragraph (i)(2):
We will not apply this basis for exclusion to permit exclusion
of a proposal on grounds that it would violate foreign law if compliance with
the foreign law would result in a violation of any state or federal law.
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(3) Violation of proxy rules: If the proposal or supporting
statement is contrary to any of the Commission's proxy rules, including § 240.14a-9, which
prohibits materially false or misleading statements in proxy soliciting materials;
(4) Personal grievance; special interest: If the proposal relates
to the redress of a personal claim or grievance against the company or any other person, or
if it is designed to result in a benefit to you, or to further a personal interest, which is
not shared by the other shareholders at large;
(5) Relevance: If the proposal relates to operations which account
for less than 5 percent of the company's total assets at the end of its most recent fiscal
year, and for less than 5 percent of its net earnings and gross sales for its most recent
fiscal year, and is not otherwise significantly related to the company's business;
(6) Absence of power/authority: If the company would lack the power
or authority to implement the proposal;
(7) Management functions: If the proposal deals with a matter
relating to the company's ordinary business operations;
(8) Director elections: If the proposal:
(i) Would disqualify a nominee who is standing for election;
(ii) Would remove a director from office before his or her term
expired;
(iii) Questions the competence, business judgment, or character of one or
more nominees or directors;
(iv) Seeks to include a specific individual in the company's proxy
materials for election to the board of directors; or
(v) Otherwise could affect the outcome of the upcoming election of
directors.
(9) Conflicts with company's proposal: If the proposal directly
conflicts with one of the company's own proposals to be submitted to shareholders at the
same meeting;
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Note to paragraph (i)(9):
A company's submission to the Commission under this section
should specify the points of conflict with the company's proposal.
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(10) Substantially implemented: If the company has already
substantially implemented the proposal;
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Note to paragraph (i)(10):
A company may exclude a shareholder proposal that would
provide an advisory vote or seek future advisory votes to approve the
compensation of executives as disclosed pursuant to Item 402 of Regulation S-K
(§ 229.402 of this chapter) or any successor to Item 402 (a “say-on-pay vote”)
or that relates to the frequency of say-on-pay votes, provided that in the most
recent shareholder vote required by § 240.14a-21(b) of this chapter a single
year (i.e., one, two, or three years) received approval of a majority of
votes cast on the matter and the company has adopted a policy on the frequency
of say-on-pay votes that is consistent with the choice of the majority of votes
cast in the most recent shareholder vote required by § 240.14a-21(b) of this
chapter.
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(11) Duplication: If the proposal substantially duplicates another
proposal previously submitted to the company by another proponent that will be included in
the company's proxy materials for the same meeting;
(12) Resubmissions: If the proposal addresses substantially the
same subject matter as a proposal, or proposals, previously included in the company's proxy
materials within the preceding five calendar years if the most recent vote occurred within
the preceding three calendar years and the most recent vote was:
(i) Less than 5 percent of the votes cast if previously voted on once;
(ii) Less than 15 percent of the votes cast if previously voted on twice; or
(iii) Less than 25 percent of the votes cast if previously voted on three or more
times.
(13) Specific amount of dividends: If the proposal relates to
specific amounts of cash or stock dividends.
(j) Question 10: What procedures must the company follow if it
intends to exclude my proposal? (1) If the company intends to exclude a proposal from its
proxy materials, it must file its reasons with the Commission no later than 80 calendar days
before it files its definitive proxy statement and form of proxy with the Commission. The
company must simultaneously provide you with a copy of its submission. The Commission staff
may permit the company to make its submission later than 80 days before the company files
its definitive proxy statement and form of proxy, if the company demonstrates good cause for
missing the deadline.
(2) The company must file six paper copies of the following:
(i) The proposal;
(ii) An explanation of why the company believes that it may exclude the
proposal, which should, if possible, refer to the most recent applicable authority, such as
prior Division letters issued under the rule; and
(iii) A supporting opinion of counsel when such reasons are based on
matters of state or foreign law.
(k) Question 11: May I submit my own statement to the Commission
responding to the company's arguments?
Yes, you may submit a response, but it is not required. You should try to
submit any response to us, with a copy to the company, as soon as possible after the company
makes its submission. This way, the Commission staff will have time to consider fully your
submission before it issues its response. You should submit six paper copies of your
response.
(l) Question 12: If the company includes my shareholder proposal in
its proxy materials, what information about me must it include along with the proposal
itself?
(1) The company's proxy statement must include your name and address, as
well as the number of the company's voting securities that you hold. However, instead of
providing that information, the company may instead include a statement that it will provide
the information to shareholders promptly upon receiving an oral or written request.
(2) The company is not responsible for the contents of your proposal or
supporting statement.
(m) Question 13: What can I do if the company includes in its proxy
statement reasons why it believes shareholders should not vote in favor of my proposal, and
I disagree with some of its statements?
(1) The company may elect to include in its proxy statement reasons why it
believes shareholders should vote against your proposal. The company is allowed to make
arguments reflecting its own point of view, just as you may express your own point of view
in your proposal's supporting statement.
(2) However, if you believe that the company's opposition to your proposal
contains materially false or misleading statements that may violate our anti-fraud rule, §
240.14a-9, you should promptly send to the Commission staff and the company a letter
explaining the reasons for your view, along with a copy of the company's statements opposing
your proposal. To the extent possible, your letter should include specific factual
information demonstrating the inaccuracy of the company's claims. Time permitting, you may
wish to try to work out your differences with the company by yourself before contacting the
Commission staff.
(3) We require the company to send you a copy of its statements opposing
your proposal before it sends its proxy materials, so that you may bring to our attention
any materially false or misleading statements, under the following timeframes:
(i) If our no-action response requires that you make revisions to your
proposal or supporting statement as a condition to requiring the company to include it in
its proxy materials, then the company must provide you with a copy of its opposition
statements no later than 5 calendar days after the company receives a copy of your revised
proposal; or
(ii) In all other cases, the company must provide you with a copy of its
opposition statements no later than 30 calendar days before its files definitive copies of
its proxy statement and form of proxy under § 240.14a-6.
[63 FR 29119, May 28, 1998; 63 FR 50622, 50623, Sept. 22, 1998, as amended
at 72 FR 4168, Jan. 29, 2007; 72 FR 70456, Dec. 11, 2007; 73 FR 977, Jan. 4, 2008; 76 FR
6045, Feb. 2, 2011; 75 FR 56782, Sept. 16, 2010; 85 FR 70240, Nov. 4, 2020; 90 FR 9684,
Feb. 18, 2025]
240.14a-9 — False or misleading statements.
(a) No solicitation subject to this regulation shall be made by means of
any proxy statement, form of proxy, notice of meeting or other communication, written or
oral, containing 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 or necessary to correct any statement in any earlier communication with
respect to the solicitation of a proxy for the same meeting or subject matter which has
become false or misleading.
(b) The fact that a proxy statement, form of proxy or other soliciting
material has been filed with or examined by the Commission shall not be deemed a finding by
the Commission that such material is accurate or complete or not false or misleading, or
that the Commission has passed upon the merits of or approved any statement contained
therein or any matter to be acted upon by security holders. No representation contrary to
the foregoing shall be made.
(c) No nominee, nominating shareholder or nominating shareholder group, or
any member thereof, shall cause to be included in a registrant's proxy materials, either
pursuant to the Federal proxy rules, an applicable state or foreign law provision, or a
registrant's governing documents as they relate to including shareholder nominees for
director in a registrant's proxy materials, include in a notice on Schedule 14N (§
240.14n-101), or include in any other related communication, 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 or necessary to correct any
statement in any earlier communication with respect to a solicitation for the same meeting
or subject matter which has become false or misleading.
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Note:
The following are some examples of what, depending upon
particular facts and circumstances, may be misleading within the meaning of this
section.
a. Predictions as to specific future market values.
b. Material which directly or indirectly impugns character,
integrity or personal reputation, or directly or indirectly makes charges
concerning improper, illegal or immoral conduct or associations, without factual
foundation.
c. Failure to so identify a proxy statement, form of proxy and
other soliciting material as to clearly distinguish it from the soliciting
material of any other person or persons soliciting for the same meeting or
subject matter.
d. Claims made prior to a meeting regarding the results of a
solicitation.
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[31 FR 212, Jan. 7, 1966, as amended at 41 FR 19933, May 14, 1976; 44 FR
38815, July 2, 1979; 44 FR 68456, Nov. 29, 1979; 75 FR 56782, Sept. 16, 2010; 85 FR 55082,
Sept. 3, 2020; 87 FR 43168, July 19, 2022]
240.14a-10 — Prohibition of certain solicitations.
No person making a solicitation which is subject to §§ 240.14a-1 to
240.14a-10 shall solicit:
(a) Any undated or postdated proxy; or
(b) Any proxy which provides that it shall be deemed to be dated as of any
date subsequent to the date on which it is signed by the security holder.
[17 FR 11434, Dec. 18, 1952]
240.14a-12 — Solicitation before furnishing a proxy statement.
(a) Notwithstanding the provisions of § 240.14a-3(a), a solicitation may
be made before furnishing security holders with a proxy statement meeting the requirements
of § 240.14a-3(a) if:
(1) Each written communication includes:
(i) The identity of the participants in the solicitation (as defined in
Instruction 3 to Item 4 of Schedule 14A (§ 240.14a-101)) and a description of their direct
or indirect interests, by security holdings or otherwise, or a prominent legend in clear,
plain language advising security holders where they can obtain that information; and
(ii) A prominent legend in clear, plain language advising security holders
to read the proxy statement when it is available because it contains important information.
The legend also must explain to investors that they can get the proxy statement, and any
other relevant documents, for free at the Commission's web site and describe which documents
are available free from the participants; and
(2) A definitive proxy statement meeting the requirements of §
240.14a-3(a) is sent or given to security holders solicited in reliance on this section
before or at the same time as the forms of proxy, consent or authorization are furnished to
or requested from security holders.
(b) Any soliciting material published, sent or given to security holders
in accordance with paragraph (a) of this section must be filed with the Commission no later
than the date the material is first published, sent or given to security holders. Three
copies of the material must at the same time be filed with, or mailed for filing to, each
national securities exchange upon which any class of securities of the registrant is listed
and registered. The soliciting material must include a cover page in the form set forth in
Schedule 14A (§ 240.14a-101) and the appropriate box on the cover page must be marked.
Soliciting material in connection with a registered offering is required to be filed only
under § 230.424 or § 230.425 of this chapter, and will be deemed filed under this
section.
(c) Solicitations by any person or group of persons for the purpose of
opposing a solicitation subject to this regulation by any other person or group of persons
with respect to the election or removal of directors at any annual or special meeting of
security holders also are subject to the following provisions:
(1) Application of this rule to annual report to security holders.
Notwithstanding the provisions of § 240.14a-3 (b) and (c), any portion of the annual report
to security holders referred to in § 240.14a-3(b) that comments upon or refers to any
solicitation subject to this rule, or to any participant in the solicitation, other than the
solicitation by the management, must be filed with the Commission as proxy material subject
to this regulation. This must be filed in electronic format unless an exemption is available
under Rules 201 or 202 of Regulation S-T (§ 232.201 or § 232.202 of this chapter).
(2) Use of reprints or reproductions. In any solicitation subject
to this § 240.14a-12(c), soliciting material that includes, in whole or part, any reprints
or reproductions of any previously published material must:
(i) State the name of the author and publication, the date of prior
publication, and identify any person who is quoted without being named in the previously
published material.
(ii) Except in the case of a public or official document or statement,
state whether or not the consent of the author and publication has been obtained to the use
of the previously published material as proxy soliciting material.
(iii) If any participant using the previously published material, or
anyone on his or her behalf, paid, directly or indirectly, for the preparation or prior
publication of the previously published material, or has made or proposes to make any
payments or give any other consideration in connection with the publication or republication
of the material, state the circumstances.
Instruction 1 to § 240.14a-12. If paper filing is permitted, file eight copies of the
soliciting material with the Commission, except that only three copies of the material
specified by § 240.14a-12(c)(1) need be filed.
Instruction 2 to § 240.14a-12. Any communications made under this section after the
definitive proxy statement is on file but before it is disseminated also must specify that
the proxy statement is publicly available and the anticipated date of dissemination.
Instruction 3 to § 240.14a-12. Inclusion of a nominee pursuant to an applicable state
or foreign law provision or a registrant's governing documents as they relate to the
inclusion of shareholder director nominees in the registrant's proxy materials, or
solicitations by a nominating shareholder or nominating shareholder group that are made in
connection with that nomination constitute solicitations in opposition subject to §
240.14a-12(c), except for purposes of § 240.14a-6(a).
[64 FR 61456, Nov. 10, 1999, as amended at 72 FR 4168, Jan. 29, 2007; 75 FR
56787, Sept. 16, 2010; 90 FR 9684, Feb. 18, 2025]
240.14a-13 — Obligation of registrants in communicating with beneficial owners.
(a) If the registrant knows that securities of any class entitled to vote
at a meeting (or by written consents or authorizations if no meeting is held) with respect
to which the registrant intends to solicit proxies, consents or authorizations are held of
record by a broker, dealer, voting trustee, bank, association, or other entity that
exercises fiduciary powers in nominee name or otherwise, the registrant shall:
(1) By first class mail or other equally prompt means:
(i) Inquire of each such record holder:
(A) Whether other persons are the beneficial owners of such securities and
if so, the number of copies of the proxy and other soliciting material necessary to supply
such material to such beneficial owners;
(B) In the case of an annual (or special meeting in lieu of the annual)
meeting, or written consents in lieu of such meeting, at which directors are to be elected,
the number of copies of the annual report to security holders necessary to supply such
report to beneficial owners to whom such reports are to be distributed by such record holder
or its nominee and not by the registrant;
(C) If the record holder has an obligation under § 240.14b-1(b)(3) or §
240.14b-2(b)(4)(ii) and (iii), whether an agent has been designated to act on its behalf in
fulfilling such obligation and, if so, the name and address of such agent; and
(D) Whether it holds the registrant's securities on behalf of any
respondent bank and, if so, the name and address of each such respondent bank; and
(ii) Indicate to each such record holder:
(A) Whether the registrant, pursuant to paragraph (c) of this section,
intends to distribute the annual report to security holders to beneficial owners of its
securities whose names, addresses and securities positions are disclosed pursuant to §
240.14b-1(b)(3) or § 240.14b-2(b)(4)(ii) and (iii);
(B) The record date; and
(C) At the option of the registrant, any employee benefit plan established
by an affiliate of the registrant that holds securities of the registrant that the
registrant elects to treat as exempt employee benefit plan securities;
(2) Upon receipt of a record holder's or respondent bank's response
indicating, pursuant to § 240.14b-2(b)(1)(i), the names and addresses of its respondent
banks, within one business day after the date such response is received, make an inquiry of
and give notification to each such respondent bank in the same manner required by paragraph
(a)(1) of this section; Provided, however, the inquiry required by paragraphs (a)(1)
and (a)(2) of this section shall not cover beneficial owners of exempt employee benefit plan
securities;
(3) Make the inquiry required by paragraph (a)(1) of this section at least
20 business days prior to the record date of the meeting of security holders, or
(i) If such inquiry is impracticable 20 business days prior to the record
date of a special meeting, as many days before the record date of such meeting as is
practicable or,
(ii) If consents or authorizations are solicited, and such inquiry is
impracticable 20 business days before the earliest date on which they may be used to effect
corporate action, as many days before that date as is practicable, or
(iii) At such later time as the rules of a national securities exchange on
which the class of securities in question is listed may permit for good cause shown;
Provided, however, That if a record holder or respondent bank has informed the
registrant that a designated office(s) or department(s) is to receive such inquiries, the
inquiry shall be made to such designated office(s) or department(s); and
(4) Supply, in a timely manner, each record holder and respondent bank of
whom the inquiries required by paragraphs (a)(1) and (a)(2) of this section are made with
copies of the proxy, other proxy soliciting material, and/or the annual report to security
holders, in such quantities, assembled in such form and at such place(s), as the record
holder or respondent bank may reasonably request in order to send such material to each
beneficial owner of securities who is to be furnished with such material by the record
holder or respondent bank; and
(5) Upon the request of any record holder or respondent bank that is
supplied with proxy soliciting material and/or annual reports to security holders pursuant
to paragraph (a)(4) of this section, pay its reasonable expenses for completing the sending
of such material to beneficial owners.
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Note 1:
If the registrant's list of security holders indicates that
some of its securities are registered in the name of a clearing agency
registered pursuant to Section 17A of the Act (e.g., “Cede & Co.,” nominee
for the Depository Trust Company), the registrant shall make appropriate inquiry
of the clearing agency and thereafter of the participants in such clearing
agency who may hold on behalf of a beneficial owner or respondent bank, and
shall comply with the above paragraph with respect to any such participant
(see § 240.14a-1(i)).
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Note 2:
The attention of registrants is called to the fact that each
broker, dealer, bank, association, and other entity that exercises fiduciary
powers has an obligation pursuant to § 240.14b-1 and § 240.14b-2 (except as
provided therein with respect to exempt employee benefit plan securities held in
nominee name) and, with respect to brokers and dealers, applicable
self-regulatory organization requirements to obtain and forward, within the time
periods prescribed therein, (a) proxies (or in lieu thereof requests for voting
instructions) and proxy soliciting materials to beneficial owners on whose
behalf it holds securities, and (b) annual reports to security holders to
beneficial owners on whose behalf it holds securities, unless the registrant has
notified the record holder or respondent bank that it has assumed responsibility
to send such material to beneficial owners whose names, addresses, and
securities positions are disclosed pursuant to § 240.14b-1(b)(3) and §
240.14b-2(b)(4)(ii) and (iii).
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|
Note 3:
The attention of registrants is called to the fact that
registrants have an obligation, pursuant to paragraph (d) of this section, to
cause proxies (or in lieu thereof requests for voting instructions), proxy
soliciting material and annual reports to security holders to be furnished, in a
timely manner, to beneficial owners of exempt employee benefit plan
securities.
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(b) Any registrant requesting pursuant to § 240.14b-1(b)(3) or §
240.14b-2(b)(4)(ii) and (iii) a list of names, addresses and securities positions of
beneficial owners of its securities who either have consented or have not objected to
disclosure of such information shall:
(1) By first class mail or other equally prompt means, inquire of each
record holder and each respondent bank identified to the registrant pursuant to §
240.14b-2(b)(4)(i) whether such record holder or respondent bank holds the registrant's
securities on behalf of any respondent banks and, if so, the name and address of each such
respondent bank;
(2) Request such list to be compiled as of a date no earlier than five
business days after the date the registrant's request is received by the record holder or
respondent bank; Provided, however, That if the record holder or respondent bank has
informed the registrant that a designated office(s) or department(s) is to receive such
requests, the request shall be made to such designated office(s) or department(s);
(3) Make such request to the following persons that hold the registrant's
securities on behalf of beneficial owners: all brokers, dealers, banks, associations and
other entities that exercises fiduciary powers; Provided however, such request shall
not cover beneficial owners of exempt employee benefit plan securities as defined in §
240.14a-1(d)(1); and, at the option of the registrant, such request may give notice of any
employee benefit plan established by an affiliate of the registrant that holds securities of
the registrant that the registrant elects to treat as exempt employee benefit plan
securities;
(4) Use the information furnished in response to such request exclusively
for purposes of corporate communications; and
(5) Upon the request of any record holder or respondent bank to whom such
request is made, pay the reasonable expenses, both direct and indirect, of providing
beneficial owner information.
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Note:
A registrant will be deemed to have satisfied its obligations
under paragraph (b) of this section by requesting consenting and non-objecting
beneficial owner lists from a designated agent acting on behalf of the record
holder or respondent bank and paying to that designated agent the reasonable
expenses of providing the beneficial owner information.
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(c) A registrant, at its option, may send its annual report to security
holders to the beneficial owners whose identifying information is provided by record holders
and respondent banks, pursuant to § 240.14b-1(b)(3) or § 240.14b-2(b)(4)(ii) and (iii),
provided that such registrant notifies the record holders and respondent banks, at the time
it makes the inquiry required by paragraph (a) of this section, that the registrant will
send the annual report to security holders to the beneficial owners so identified.
(d) If a registrant solicits proxies, consents or authorizations from
record holders and respondent banks who hold securities on behalf of beneficial owners, the
registrant shall cause proxies (or in lieu thereof requests or voting instructions), proxy
soliciting material and annual reports to security holders to be furnished, in a timely
manner, to beneficial owners of exempt employee benefit plan securities.
[51 FR 44276, Dec. 9, 1986; 52 FR 2220, Jan. 21,
1987, as amended at 52 FR 23648, June 24, 1987; 53 FR 16405, May 9, 1988; 57 FR 1099, Jan.
10, 1992; 72 FR 4168, Jan. 29, 2007]
240.14a-14 — Modified or superseded documents.
(a) Any statement contained in a document incorporated or deemed to be
incorporated by reference shall be deemed to be modified or superseded, for purposes of the
proxy statement, to the extent that a statement contained in the proxy statement or in any
other subsequently filed document that also is or is deemed to be incorporated by reference
modifies or replaces such statement.
(b) The modifying or superseding statement may, but need not, state it has
modified or superseded a prior statement or include any other information set forth in the
document that is not so modified or superseded. The making of a modifying or superseding
statement shall not be deemed an admission that the modified or superseded statement, when
made, constituted an untrue statement of a material fact, an omission to state a material
fact necessary to make a statement not misleading, or the employment of a manipulative,
deceptive, or fraudulent device, contrivance, scheme, transaction, act, practice, course of
business or artifice to defraud, as those terms are used in the Securities Act of 1933, the
Securities Exchange Act of 1934 (“the Act”), the Investment Company Act of 1940, or the
rules and regulations thereunder.
(c) Any statement so modified shall not be deemed in its unmodified form
to constitute part of the proxy statement for purposes of the Act. Any statement so
superseded shall not be deemed to constitute a part of the proxy statement for purposes of
the Act.
[52 FR 21936, June 10, 1987, as amended at 73 FR
17814, Apr. 1, 2008]
240.14a-15 — Differential and contingent compensation in connection with roll-up transactions.
(a) It shall be unlawful for any person to receive compensation for
soliciting proxies, consents, or authorizations directly from security holders in connection
with a roll-up transaction as provided in paragraph (b) of this section, if the compensation
is:
(1) Based on whether the solicited proxy, consent, or authorization either
approves or disapproves the proposed roll-up transaction; or
(2) Contingent on the approval, disapproval, or completion of the roll-up
transaction.
(b) This section is applicable to a roll-up transaction as defined in Item
901(c) of Regulation S-K (§ 229.901(c) of this chapter), except for a transaction involving
only:
(1) Finite-life entities that are not limited partnerships;
(2) Partnerships whose investors will receive new securities or securities
in another entity that are not reported under a transaction reporting plan declared
effective before December 17, 1993 by the Commission under section 11A of the Act (15 U.S.C.
78k-1); or
(3) Partnerships whose investors' securities are reported under a
transaction reporting plan declared effective before December 17, 1993 by the Commission
under section 11A of the Act (15 U.S.C. 78k-1).
[59 FR 63684, Dec. 8, 1994]
240.14a-16 — Internet availability of proxy materials.
(a)(1) A registrant shall furnish a proxy statement pursuant to §
240.14a-3(a), or an annual report to security holders pursuant to § 240.14a-3(b), to a
security holder by sending the security holder a Notice of Internet Availability of Proxy
Materials, as described in this section, 40 calendar days or more prior to the security
holder meeting date, or if no meeting is to be held, 40 calendar days or more prior to the
date the votes, consents or authorizations may be used to effect the corporate action, and
complying with all other requirements of this section.
(2) Unless the registrant chooses to follow the full set delivery option
set forth in paragraph (n) of this section, it must provide the record holder or respondent
bank with all information listed in paragraph (d) of this section in sufficient time for the
record holder or respondent bank to prepare, print and send a Notice of Internet
Availability of Proxy Materials to beneficial owners at least 40 calendar days before the
meeting date.
(b)(1) All materials identified in the Notice of Internet Availability of
Proxy Materials must be publicly accessible, free of charge, at the Web site address
specified in the notice on or before the time that the notice is sent to the security holder
and such materials must remain available on that Web site through the conclusion of the
meeting of security holders.
(2) All additional soliciting materials sent to security holders or made
public after the Notice of Internet Availability of Proxy Materials has been sent must be
made publicly accessible at the specified Web site address no later than the day on which
such materials are first sent to security holders or made public.
(3) The Web site address relied upon for compliance under this section may
not be the address of the Commission's electronic filing system.
(4) The registrant must provide security holders with a means to execute a
proxy as of the time the Notice of Internet Availability of Proxy Materials is first sent to
security holders.
(c) The materials must be presented on the Web site in a format, or
formats, convenient for both reading online and printing on paper.
(d) The Notice of Internet Availability of Proxy Materials must contain
the following:
(1) A prominent legend in bold-face type that states “Important Notice
Regarding the Availability of Proxy Materials for the Shareholder Meeting To Be Held on
[insert meeting date]”;
(2) An indication that the communication is not a form for voting and
presents only an overview of the more complete proxy materials, which contain important
information and are available on the Internet or by mail, and encouraging a security holder
to access and review the proxy materials before voting;
(3) The Internet Web site address where the proxy materials are
available;
(4) Instructions regarding how a security holder may request a paper or
e-mail copy of the proxy materials at no charge, including the date by which they should
make the request to facilitate timely delivery, and an indication that they will not
otherwise receive a paper or e-mail copy;
(5) The date, time, and location of the meeting, or if corporate action is
to be taken by written consent, the earliest date on which the corporate action may be
effected;
(6) A clear and impartial identification of each separate matter intended
to be acted on and the soliciting person's recommendations, if any, regarding those matters,
but no supporting statements;
(7) A list of the materials being made available at the specified Web
site;
(8) A toll-free telephone number, an e-mail address, and an Internet Web
site where the security holder can request a copy of the proxy statement, annual report to
security holders, and form of proxy, relating to all of the registrant's future security
holder meetings and for the particular meeting to which the proxy materials being furnished
relate;
(9) Any control/identification numbers that the security holder needs to
access his or her form of proxy;
(10) Instructions on how to access the form of proxy, provided that such
instructions do not enable a security holder to execute a proxy without having access to the
proxy statement and, if required by § 240.14a-3(b), the annual report to security holders;
and
(11) Information on how to obtain directions to be able to attend the
meeting and vote in person.
(e)(1) The Notice of Internet Availability of Proxy Materials may not be
incorporated into, or combined with, another document, except that it may be incorporated
into, or combined with, a notice of security holder meeting required under state law, unless
state law prohibits such incorporation or combination.
(2) The Notice of Internet Availability of Proxy Materials may contain
only the information required by paragraph (d) of this section and any additional
information required to be included in a notice of security holders meeting under state law;
provided that:
(i) The registrant must revise the information on the Notice of Internet
Availability of Proxy Materials, including any title to the document, to reflect the fact
that:
(A) The registrant is conducting a consent solicitation rather than a
proxy solicitation; or
(B) The registrant is not soliciting proxy or consent authority, but is
furnishing an information statement pursuant to § 240.14c-2; and
(ii) The registrant may include a statement on the Notice to educate
security holders that no personal information other than the identification or control
number is necessary to execute a proxy.
(f)(1) Except as provided in paragraph (h) of this section, the Notice of
Internet Availability of Proxy Materials must be sent separately from other types of
security holder communications and may not accompany any other document or materials,
including the form of proxy.
(2) Notwithstanding paragraph (f)(1) of this section, the registrant may
accompany the Notice of Internet Availability of Proxy Materials with:
(i) A pre-addressed, postage-paid reply card for requesting a copy of the
proxy materials;
(ii) A copy of any notice of security holder meeting required under state
law if that notice is not combined with the Notice of Internet Availability of Proxy
Materials;
(iii) In the case of an investment company registered under the Investment
Company Act of 1940, the company's prospectus, a summary prospectus that satisfies the
requirements of § 230.498(b) or § 230.498A(b) or (c) of this chapter, a Notice under
§ 270.30e-3 of this chapter, or a report that is required to be transmitted to stockholders
by section 30(e) of the Investment Company Act (15 U.S.C. 80a-29(e)) and its implementing
regulations (e.g., §§ 270.30e-1 and 270.30e-2 of this chapter); and
(iv) An explanation of the reasons for a registrant's use of the rules
detailed in this section and the process of receiving and reviewing the proxy materials and
voting as detailed in this section.
(g) Plain English. (1) To enhance the readability of the Notice of
Internet Availability of Proxy Materials, the registrant must use plain English principles
in the organization, language, and design of the notice.
(2) The registrant must draft the language in the Notice of Internet
Availability of Proxy Materials so that, at a minimum, it substantially complies with each
of the following plain English writing principles:
(i) Short sentences;
(ii) Definite, concrete, everyday words;
(iii) Active voice;
(iv) Tabular presentation or bullet lists for complex material, whenever
possible;
(v) No legal jargon or highly technical business terms; and
(vi) No multiple negatives.
(3) In designing the Notice of Internet Availability of Proxy Materials,
the registrant may include pictures, logos, or similar design elements so long as the design
is not misleading and the required information is clear.
(h) The registrant may send a form of proxy to security holders if:
(1) At least 10 calendar days or more have passed since the date it first
sent the Notice of Internet Availability of Proxy Materials to security holders and the form
of proxy is accompanied by a copy of the Notice of Internet Availability of Proxy Materials;
or
(2) The form of proxy is accompanied or preceded by a copy, via the same
medium, of the proxy statement and any annual report to security holders that is required by
§ 240.14a-3(b).
(i) The registrant must file a form of the Notice of Internet Availability
of Proxy Materials with the Commission pursuant to § 240.14a-6(b) no later than the date
that the registrant first sends the notice to security holders.
(j) Obligation to provide copies. (1) The registrant must send, at
no cost to the record holder or respondent bank and by U.S. first class mail or other
reasonably prompt means, a paper copy of the proxy statement, information statement, annual
report to security holders, and form of proxy (to the extent each of those documents is
applicable) to any record holder or respondent bank requesting such a copy within three
business days after receiving a request for a paper copy.
(2) The registrant must send, at no cost to the record holder or
respondent bank and via e-mail, an electronic copy of the proxy statement, information
statement, annual report to security holders, and form of proxy (to the extent each of those
documents is applicable) to any record holder or respondent bank requesting such a copy
within three business days after receiving a request for an electronic copy via e-mail.
(3) The registrant must provide copies of the proxy materials for one year
after the conclusion of the meeting or corporate action to which the proxy materials relate,
provided that, if the registrant receives the request after the conclusion of the meeting or
corporate action to which the proxy materials relate, the registrant need not send copies
via First Class mail and need not respond to such request within three business days.
(4) The registrant must maintain records of security holder requests to
receive materials in paper or via e-mail for future solicitations and must continue to
provide copies of the materials to a security holder who has made such a request until the
security holder revokes such request.
(k) Security holder information. (1) A registrant or its agent
shall maintain the Internet Web site on which it posts its proxy materials in a manner that
does not infringe on the anonymity of a person accessing such Web site.
(2) The registrant and its agents shall not use any e-mail address
obtained from a security holder solely for the purpose of requesting a copy of proxy
materials pursuant to paragraph (j) of this section for any purpose other than to send a
copy of those materials to that security holder. The registrant shall not disclose such
information to any person other than an employee or agent to the extent necessary to send a
copy of the proxy materials pursuant to paragraph (j) of this section.
(l) A person other than the registrant may solicit proxies pursuant to the
conditions imposed on registrants by this section, provided that:
(1) A soliciting person other than the registrant is required to provide
copies of its proxy materials only to security holders to whom it has sent a Notice of
Internet Availability of Proxy Materials; and
(2) A soliciting person other than the registrant must send its Notice of
Internet Availability of Proxy Materials by the later of:
(i) 40 Calendar days prior to the security holder meeting date or, if no
meeting is to be held, 40 calendar days prior to the date the votes, consents, or
authorizations may be used to effect the corporate action; or
(ii) The date on which it files its definitive proxy statement with the
Commission, provided its preliminary proxy statement is filed no later than 10 calendar days
after the date that the registrant files its definitive proxy statement.
(3) Content of the soliciting person's Notice of Internet Availability
of Proxy Materials. (i) If, at the time a soliciting person other than the registrant
sends its Notice of Internet Availability of Proxy Materials, the soliciting person is not
aware of all matters on the registrant's agenda for the meeting of security holders, the
soliciting person's Notice on Internet Availability of Proxy Materials must provide a clear
and impartial identification of each separate matter on the agenda to the extent known by
the soliciting person at that time. The soliciting person's notice also must include a clear
statement indicating that there may be additional agenda items of which the soliciting
person is not aware and that the security holder cannot direct a vote for those items on the
soliciting person's proxy card provided at that time.
(ii) If a soliciting person other than the registrant sends a form of
proxy not containing all matters intended to be acted upon, the Notice of Internet
Availability of Proxy Materials must clearly state whether execution of the form of proxy
will invalidate a security holder's prior vote on matters not presented on the form of
proxy.
(m) This section shall not apply to a proxy solicitation in connection
with a business combination transaction, as defined in § 230.165 of this chapter, as well as
transactions for cash consideration requiring disclosure under Item 14 of § 240.14a-101.
(n) Full Set Delivery Option. (1) For purposes of this paragraph
(n), the term full set of proxy materials shall include all of the following documents:
(i) A copy of the proxy statement;
(ii) A copy of the annual report to security holders if required by §
240.14a-3(b); and
(iii) A form of proxy.
(2) Notwithstanding paragraphs (e) and (f)(2) of this section, a
registrant or other soliciting person may:
(i) Accompany the Notice of Internet Availability of Proxy Materials with
a full set of proxy materials; or
(ii) Send a full set of proxy materials without a Notice of Internet
Availability of Proxy Materials if all of the information required in a Notice of Internet
Availability of Proxy Materials pursuant to paragraphs (d) and (n)(4) of this section is
incorporated in the proxy statement and the form of proxy.
(3) A registrant or other soliciting person that sends a full set of proxy
materials to a security holder pursuant to this paragraph (n) need not comply with
(i) The timing provisions of paragraphs (a) and (l)(2) of this section;
and
(ii) The obligation to provide copies pursuant to paragraph (j) of this
section.
(4) A registrant or other soliciting person that sends a full set of proxy
materials to a security holder pursuant to this paragraph (n) need not include in its Notice
of Internet Availability of Proxy Materials, proxy statement, or form of proxy the following
disclosures:
(i) Instructions regarding the nature of the communication pursuant to
paragraph (d)(2) of this section;
(ii) Instructions on how to request a copy of the proxy materials; and
(iii) Instructions on how to access the form of proxy pursuant to
paragraph (d)(10) of this section.
[72 FR 4168, Jan. 29, 2007, as amended at 72 FR 42238, Aug. 1, 2007; 72 FR
42238, Aug. 1, 2007; 73 FR 17814, Apr. 1, 2008; 75 FR 9081, Feb. 26, 2010; 83 FR 29158,
June 22, 2018; 85 FR 25964, May 1, 2020] ]
240.14a-17 — Electronic shareholder forums.
(a) A shareholder, registrant, or third party acting on behalf of a
shareholder or registrant may establish, maintain, or operate an electronic shareholder
forum to facilitate interaction among the registrant's shareholders and between the
registrant and its shareholders as the shareholder or registrant deems appropriate. Subject
to paragraphs (b) and (c) of this section, the forum must comply with the federal securities
laws, including Section 14(a) of the Act and its associated regulations, other applicable
federal laws, applicable state laws, and the registrant's governing documents.
(b) No shareholder, registrant, or third party acting on behalf of a
shareholder or registrant, by reason of establishing, maintaining, or operating an
electronic shareholder forum, will be liable under the federal securities laws for any
statement or information provided by another person to the electronic shareholder forum.
Nothing in this section prevents or alters the application of the federal securities laws,
including the provisions for liability for fraud, deception, or manipulation, or other
applicable federal and state laws to the person or persons that provide a statement or
information to an electronic shareholder forum.
(c) Reliance on the exemption in § 240.14a-2(b)(6) to participate in an
electronic shareholder forum does not eliminate a person's eligibility to solicit proxies
after the date that the exemption in § 240.14a-2(b)(6) is no longer available, or is no
longer being relied upon, provided that any such solicitation is conducted in accordance
with this regulation.
[73 FR 4458, Jan. 25, 2008]
240.14a-18 — Disclosure regarding nominating shareholders and nominees submitted for inclusion in a registrant's proxy materials pursuant to applicable state or foreign law, or a registrant's governing documents.
To have a nominee included in a registrant's proxy materials pursuant to a
procedure set forth under applicable state or foreign law, or the registrant's governing
documents addressing the inclusion of shareholder director nominees in the registrant's
proxy materials, the nominating shareholder or nominating shareholder group must provide
notice to the registrant of its intent to do so on a Schedule 14N (§ 240.14n-101) and file
that notice, including the required disclosure, with the Commission on the date first
transmitted to the registrant. This notice shall be postmarked or transmitted electronically
to the registrant by the date specified by the registrant's advance notice provision or,
where no such provision is in place, no later than 120 calendar days before the anniversary
of the date that the registrant mailed its proxy materials for the prior year's annual
meeting, except that, if the registrant did not hold an annual meeting during the prior
year, or if the date of the meeting has changed by more than 30 calendar days from the prior
year, then the nominating shareholder or nominating shareholder group must provide notice a
reasonable time before the registrant mails its proxy materials, as specified by the
registrant in a Form 8-K (§ 249.308 of this chapter) filed pursuant to Item 5.08 of Form
8-K.
Instruction to § 240.14a-18. The registrant is not responsible for any information
provided in the Schedule 14N (§ 240.14n-101) by the nominating shareholder or nominating
shareholder group, which is submitted as required by this section or otherwise provided by
the nominating shareholder or nominating shareholder group that is included in the
registrant's proxy materials.
[75 FR 56787, Sept. 16, 2010]
240.14a-19 — Solicitation of proxies in support of director nominees other than the registrant's nominees.
(a) No person may solicit proxies in support of director nominees other than the
registrant's nominees unless such person:
(1) Provides notice to the registrant in accordance with paragraph (b) of this section
unless the information required by paragraph (b) of this section has been provided in a
preliminary or definitive proxy statement previously filed by such person;
(2) Files a definitive proxy statement with the Commission in accordance with
§ 240.14a-6(b) by the later of:
(i) 25 calendar days prior to the security holder meeting date; or
(ii) Five (5) calendar days after the date that the registrant files its definitive proxy
statement; and
(3) Solicits the holders of shares representing at least 67% of the voting power of
shares entitled to vote on the election of directors and includes a statement to that
effect in the proxy statement or form of proxy.
(b) The notice shall:
(1) Be postmarked or transmitted electronically to the registrant at its principal
executive office no later than 60 calendar days prior to the anniversary of the previous
year's annual meeting date, except that, if the registrant did not hold an annual meeting
during the previous year, or if the date of the meeting has changed by more than 30
calendar days from the previous year, then notice must be provided by the later of 60
calendar days prior to the date of the annual meeting or the 10th calendar day following
the day on which public announcement of the date of the annual meeting is first made by
the registrant;
(2) Include the names of all nominees for whom such person intends to solicit proxies;
and
(3) Include a statement that such person intends to solicit the holders of shares
representing at least 67% of the voting power of shares entitled to vote on the election
of directors in support of director nominees other than the registrant's nominees.
(c) If any change occurs with respect to such person's intent to solicit the holders of
shares representing at least 67% of the voting power of shares entitled to vote on the
election of directors in support of director nominees other than the registrant's nominees
or with respect to the names of such person's nominees, such person shall notify the
registrant promptly.
(d) A registrant shall notify the person conducting a proxy solicitation subject to this
section of the names of all nominees for whom the registrant intends to solicit proxies
unless the names have been provided in a preliminary or definitive proxy statement
previously filed by the registrant. The notice shall be postmarked or transmitted
electronically no later than 50 calendar days prior to the anniversary of the previous
year's annual meeting date, except that, if the registrant did not hold an annual meeting
during the previous year, or if the date of the meeting has changed by more than 30
calendar days from the previous year, then notice must be provided no later than 50
calendar days prior to the date of the annual meeting. If any change occurs with respect
to the names of the registrant's nominees, the registrant shall notify the person
conducting a proxy solicitation subject to this section promptly.
(e) Notwithstanding the provisions of § 240.14a-4(b)(2), if any person is conducting a
proxy solicitation subject to this section, the form of proxy of the registrant and the
form of proxy of any person soliciting proxies pursuant to this section shall:
(1) Set forth the names of all persons nominated for election by the registrant and by
any person or group of persons that has complied with this section and the name of any
person whose nomination by a shareholder or shareholder group satisfies the requirements
of an applicable state or foreign law provision or a registrant's governing documents as
they relate to the inclusion of shareholder director nominees in the registrant's proxy
materials;
(2) Provide a means for the security holder to grant authority to vote for the nominees
set forth;
(3) Clearly distinguish between the nominees of the registrant, the nominees of the
person or group of persons that has complied with this section and the nominees of any
shareholder or shareholder group whose nominees are included in a registrant's proxy
materials pursuant to the requirements of an applicable state or foreign law provision or
a registrant's governing documents;
(4) Within each group of nominees referred to in paragraph (e)(3) of this section, list
nominees in alphabetical order by last name;
(5) Use the same font type, style and size for all nominees;
(6) Prominently disclose the maximum number of nominees for which authority to vote can
be granted; and
(7) Prominently disclose the treatment and effect of a proxy executed in a manner that
grants authority to vote for the election of fewer or more nominees than the number of
directors being elected and the treatment and effect of a proxy executed in a manner that
does not grant authority to vote with respect to any nominees.
(f) If any person is conducting a proxy solicitation subject to this section, the form of
proxy of the registrant and the form of proxy of any person soliciting proxies pursuant to
this section may provide a means for the security holder to grant authority to vote for
the nominees of the registrant set forth, as a group, and a means for the security holder
to grant authority to vote for the nominees of any other soliciting person set forth, as a
group, provided that there is a similar means for the security holder to withhold
authority to vote for such groups of nominees unless the number of nominees of the
registrant or of any other soliciting person is less than the number of directors being
elected. Means to grant authority to vote for any nominees as a group or to withhold
authority for any nominees as a group may not be provided if the form of proxy includes
one or more shareholder nominees in accordance with an applicable state or foreign law
provision or a registrant's governing documents as they relate to the inclusion of
shareholder director nominees in the registrant's proxy materials.
(g) This section shall not apply to:
(1) A consent solicitation; or
(2) A solicitation in connection with an election of directors at an investment company
registered under the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq. ) or a
business development company as defined by section 2(a)(48) of the Investment Company Act
of 1940 (15 U.S.C. 80a-2(a)(48)).
Instruction 1 to paragraphs (b)(1) and (d). Where the deadline falls on a Saturday,
Sunday, or holiday, the deadline will be treated as the first business day following the
Saturday, Sunday, or holiday.
Instruction 2 to paragraph (f). Where applicable state law gives legal effect to votes
cast against a nominee, the form of proxy may provide a means for the security holder to
grant authority to vote for the nominees of the registrant set forth, as a group, and a
means for the security holder to grant authority to vote for the nominees of any other
soliciting person set forth, as a group, provided that, in lieu of the ability to withhold
authority to vote as a group, there is a similar means for the security holder to vote
against such group of nominees (as well as a means for security holders to abstain from
voting for such group of nominees).
[86 FR 68330, Dec. 1, 2021]
240.14a-20 — Shareholder approval of executive compensation of TARP recipients.
If a solicitation is made by a registrant that is a TARP recipient,
as defined in section 111(a)(3) of the Emergency Economic Stabilization Act of 2008 (12
U.S.C. 5221(a)(3)), during the period in which any obligation arising from financial
assistance provided under the TARP, as defined in section 3(8) of the Emergency
Economic Stabilization Act of 2008 (12 U.S.C. 5202(8)), remains outstanding and the
solicitation relates to an annual (or special meeting in lieu of the annual) meeting of
security holders for which proxies will be solicited for the election of directors, as
required pursuant to section 111(e)(1) of the Emergency Economic Stabilization Act of 2008
(12 U.S.C. 5221(e)(1)), the registrant shall provide a separate shareholder vote to approve
the compensation of executives, as disclosed pursuant to Item 402 of Regulation S-K (§
229.402 of this chapter), including the compensation discussion and analysis, the
compensation tables, and any related material.
|
Note to § 240.14a-20:
TARP recipients that are smaller reporting companies entitled
to provide scaled disclosure pursuant to Item 402(l) of Regulation S-K are not
required to include a compensation discussion and analysis in their proxy
statements in order to comply with this section. In the case of these smaller
reporting companies, the required vote must be to approve the compensation of
executives as disclosed pursuant to Item 402(m) through (q) of Regulation
S-K.
|
[75 FR 2794, Jan. 19, 2010]
240.14a-21 — Shareholder approval of executive compensation, frequency of votes for approval of executive compensation and shareholder approval of golden parachute compensation.
(a) If a solicitation is made by a registrant, other than an emerging
growth company as defined in Rule 12b-2 (§ 240.12b-2), and the solicitation relates to an
annual or other meeting of shareholders at which directors will be elected and for which the
rules of the Commission require executive compensation disclosure pursuant to Item 402 of
Regulation S-K (§ 229.402 of this chapter), the registrant shall, for the first annual or
other meeting of shareholders on or after January 21, 2011, or for the first annual or other
meeting of shareholders on or after January 21, 2013 if the registrant is a smaller
reporting company, and thereafter no later than the annual or other meeting of shareholders
held in the third calendar year after the immediately preceding vote under this subsection,
include a separate resolution subject to shareholder advisory vote to approve the
compensation of its named executive officers, as disclosed pursuant to Item 402 of
Regulation S-K.
Instruction to paragraph (a):
The registrant's resolution shall indicate that the shareholder advisory
vote under this subsection is to approve the compensation of the registrant's named
executive officers as disclosed pursuant to Item 402 of Regulation S-K (§ 229.402 of this
chapter). The following is a non-exclusive example of a resolution that would satisfy the
requirements of this subsection: “RESOLVED, that the compensation paid to the company's
named executive officers, as disclosed pursuant to Item 402 of Regulation S-K, including the
Compensation Discussion and Analysis, compensation tables and narrative discussion is hereby
APPROVED.”
(b) If a solicitation is made by a registrant, other than an emerging
growth company as defined in Rule 12b-2 (§ 240.12b-2), and the solicitation relates to an
annual or other meeting of shareholders at which directors will be elected and for which the
rules of the Commission require executive compensation disclosure pursuant to Item 402 of
Regulation S-K (§ 229.402 of this chapter), the registrant shall, for the first annual or
other meeting of shareholders on or after January 21, 2011, or for the first annual or other
meeting of shareholders on or after January 21, 2013 if the registrant is a smaller
reporting company, and thereafter no later than the annual or other meeting of shareholders
held in the sixth calendar year after the immediately preceding vote under this subsection,
include a separate resolution subject to shareholder advisory vote as to whether the
shareholder vote required by paragraph (a) of this section should occur every 1, 2 or 3
years. Registrants required to provide a separate shareholder vote pursuant to § 240.14a-20
of this chapter shall include the separate resolution required by this section for the first
annual or other meeting of shareholders after the registrant has repaid all obligations
arising from financial assistance provided under the TARP, as defined in section 3(8) of the
Emergency Economic Stabilization Act of 2008 (12 U.S.C. 5202(8)), and thereafter no later
than the annual or other meeting of shareholders held in the sixth calendar year after the
immediately preceding vote under this subsection.
(c) If a solicitation is made by a registrant for a meeting of
shareholders at which shareholders are asked to approve an acquisition, merger,
consolidation or proposed sale or other disposition of all or substantially all the assets
of the registrant, the registrant shall include a separate resolution subject to shareholder
advisory vote to approve any agreements or understandings and compensation disclosed
pursuant to Item 402(t) of Regulation S-K (§ 229.402(t) of this chapter), unless such
agreements or understandings have been subject to a shareholder advisory vote under
paragraph (a) of this section. Consistent with section 14A(b) of the Exchange Act (15 U.S.C.
78n-1(b)), any agreements or understandings between an acquiring company and the named
executive officers of the registrant, where the registrant is not the acquiring company, are
not required to be subject to the separate shareholder advisory vote under this paragraph.
Instructions to § 240.14a-21:
1. Disclosure relating to the compensation of directors required by Item
402(k) (§ 229.402(k) of this chapter) and Item 402(r) of Regulation S-K (§ 229.402(r) of
this chapter) is not subject to the shareholder vote required by paragraph (a) of this
section. If a registrant includes disclosure pursuant to Item 402(s) of Regulation S-K (§
229.402(s) of this chapter) about the registrant's compensation policies and practices as
they relate to risk management and risk-taking incentives, these policies and practices
would not be subject to the shareholder vote required by paragraph (a) of this section. To
the extent that risk considerations are a material aspect of the registrant's compensation
policies or decisions for named executive officers, the registrant is required to discuss
them as part of its Compensation Discussion and Analysis under § 229.402(b) of this chapter,
and therefore such disclosure would be considered by shareholders when voting on executive
compensation.
2. If a registrant includes disclosure of golden parachute compensation
arrangements pursuant to Item 402(t) (§ 229.402(t) of this chapter) in an annual meeting
proxy statement, such disclosure would be subject to the shareholder advisory vote required
by paragraph (a) of this section.
3. Registrants that are smaller reporting companies entitled to provide
scaled disclosure in accordance with Item 402(l) of Regulation S-K (§
229.402(l) of this chapter) are not required to include a Compensation Discussion
and Analysis in their proxy statements in order to comply with this section. For smaller
reporting companies, the vote required by paragraph (a) of this section must be to approve
the compensation of the named executive officers as disclosed pursuant to Item 402(m)
through (q) of Regulation S-K (§ 229.402(m) through (q) of this chapter).
4. A registrant that has ceased being an emerging growth company shall
include the first separate resolution described under § 240.14a-21(a) not later than the end
of (i) in the case of a registrant that was an emerging growth company for less than two
years after the date of first sale of common equity securities of the registrant pursuant to
an effective registration statement under the Securities Act of 1933 (15 U.S.C 77a et seq.),
the three-year period beginning on such date; and (ii) in the case of any other registrant,
the one-year period beginning on the date the registrant is no longer an emerging growth
company.
[76 FR 6045, Feb. 2, 2011; as amended at 82 FR
17545, April 12, 2017]
240.14a-101 — Schedule 14A. Information required in proxy statement.
Schedule 14A Information
Proxy Statement Pursuant to
Section 14(a) of the Securities Exchange Act of 1934
(Amendment No.)
Filed by the Registrant []
Filed by a party other than the Registrant []
Check the appropriate box:
[]Preliminary Proxy Statement
[]Confidential, for Use of the Commission Only (as
permitted by Rule 14a-6(e)(2))
[]Definitive Proxy Statement
[]Definitive Additional Materials
[]Soliciting Material under § 240.14a-12
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other
than the Registrant)
Payment of Filing Fee (Check all boxes that apply):
[ ] No fee required
[ ] Fee paid previously with preliminary materials
[ ] Fee computed on table in exhibit required by Item 25(b) per
Exchange Act Rules 14a-6(i)(1) and 0-11
Notes
Notes: A. Where any item calls for information with
respect to any matter to be acted upon and such matter involves other matters with respect
to which information is called for by other items of this schedule, the information called
for by such other items also shall be given. For example, where a solicitation of security
holders is for the purpose of approving the authorization of additional securities which are
to be used to acquire another specified company, and the registrants' security holders will
not have a separate opportunity to vote upon the transaction, the solicitation to authorize
the securities is also a solicitation with respect to the acquisition. Under those facts,
information required by Items 11, 13 and 14 shall be furnished.
B. Where any item calls for information with respect
to any matter to be acted upon at the meeting, such item need be answered in the
registrant's soliciting material only with respect to proposals to be made by or on behalf
of the registrant.
C. Except as otherwise specifically provided, where
any item calls for information for a specified period with regard to directors, executive
officers, officers or other persons holding specified positions or relationships, the
information shall be given with regard to any person who held any of the specified positions
or relationship at any time during the period. Information, other than information required
by Item 404 of Regulation S-K (§ 229.404 of this chapter), need not be included for any
portion of the period during which such person did not hold any such position or
relationship, provided a statement to that effect is made.
D. Information may be incorporated by reference only
in the manner and to the extent specifically permitted in the items of this schedule. Where
incorporation by reference is used, the following shall apply:
1. Disclosure must not be incorporated by reference
from a second document if that second document incorporates information pertinent to such
disclosure by reference to a third document. A registrant incorporating any documents, or
portions of documents, shall include a statement on the last page(s) of the proxy statement
as to which documents, or portions of documents, are incorporated by reference. Information
shall not be incorporated by reference in any case where such incorporation would render the
statement incomplete, unclear or confusing.
2. If a document is incorporated by reference but not
delivered to security holders, include an undertaking to provide, without charge, to each
person to whom a proxy statement is delivered, upon written or oral request of such person
and by first class mail or other equally prompt means within one business day of receipt of
such request, a copy of any and all of the information that has been incorporated by
reference in the proxy statement (not including exhibits to the information that is
incorporated by reference unless such exhibits are specifically incorporated by reference
into the information that the proxy statement incorporates), and the address (including
title or department) and telephone numbers to which such a request is to be directed. This
includes information contained in documents filed subsequent to the date on which definitive
copies of the proxy statement are sent or given to security holders, up to the date of
responding to the request.
3. If a document or portion of a document other than
an annual report sent to security holders pursuant to the requirements of Rule 14a-3 (§
240.14a-3 of this chapter) with respect to the same meeting or solicitation of consents or
authorizations as that to which the proxy statement relates is incorporated by reference in
the manner permitted by Item 13(b) or 14(e)(1) of this schedule, the proxy statement must be
sent to security holders no later than 20 business days prior to the date on which the
meeting of such security holders is held or, if no meeting is held, at least 20 business
days prior to the date the votes, consents or authorizations may be used to effect the
corporate action.
4. Electronic filings. If any of the
information required by Items 13 or 14 of this Schedule is incorporated by reference from an
annual or quarterly report to security holders, such report, or any portion thereof
incorporated by reference, shall be filed in electronic format with the proxy statement.
This provision shall not apply to registered investment companies.
5. Interactive Data File. An Interactive Data File must be
included in accordance with § 232.405 of this chapter and the EDGAR Filer Manual where
applicable pursuant to § 232.405(b) of this chapter.
E. In Item 13 of this Schedule, the reference to
“meets the requirement of Form S-3” or “meets the requirements of General Instruction A.2 of
Form N-2” shall refer to a registrant who meets the following requirements:
(a) A registrant meets the requirements of Form S-3
if:
(1) The registrant meets the requirements of General
Instruction I.A. of Form S-3 (§ 239.13 of this chapter); and
(2) One of the following is met:
(i) The registrant meets the aggregate market value
requirement of General Instruction I.B.1 of Form S-3; or
(ii) Action is to be taken as described in Items 11,
12, and 14 of this schedule which concerns non-convertible debt or preferred securities
issued by a registrant meeting the requirements of General Instruction I.B.2. of Form S-3
(referenced in 17 CFR 239.13); or
(iii) The registrant is a majority-owned subsidiary
and one of the conditions of General Instruction I.C. of Form S-3 is met.
(b) A registrant meets the requirements of General
Instruction A.2 of Form N-2 (§§ 239.14 and 274.11a-1 of this chapter) if the registrant
meets the conditions included in such General Instruction, provided that General Instruction
A.2.c of Form N-2 is subject to the same limitations described in paragraph (a)(2) of this
Note E.
Item 1. Date, time and place information. (a) State the date, time and place of the
meeting of security holders, and the complete mailing address, including ZIP Code, of the
principal executive offices of the registrant, unless such information is otherwise
disclosed in material furnished to security holders with or preceding the proxy statement.
If action is to be taken by written consent, state the date by which consents are to be
submitted if state law requires that such a date be specified or if the person soliciting
intends to set a date.
(b) On the first page of the proxy statement, as
delivered to security holders, state the approximate date on which the proxy statement and
form of proxy are first sent or given to security holders.
(c) Furnish the information required to be in the
proxy statement by Rule 14a-5(e) (§ 240.14a-5(e) of this chapter).
Item 2. Revocability of proxy. State whether or not the person giving the proxy has
the power to revoke it. If the right of revocation before the proxy is exercised is limited
or is subject to compliance with any formal procedure, briefly describe such limitation or
procedure.
Item 3. Dissenters' right of appraisal. Outline briefly the rights of appraisal or
similar rights of dissenters with respect to any matter to be acted upon and indicate any
statutory procedure required to be followed by dissenting security holders in order to
perfect such rights. Where such rights may be exercised only within a limited time after the
date of adoption of a proposal, the filing of a charter amendment or other similar act,
state whether the persons solicited will be notified of such date.
Instructions. 1. Indicate whether a security holder's failure to vote against a
proposal will constitute a waiver of his appraisal or similar rights and whether a vote
against a proposal will be deemed to satisfy any notice requirements under State law with
respect to appraisal rights. If the State law is unclear, state what position will be taken
in regard to these matters.
2. Open-end investment companies registered under the
Investment Company Act of 1940 are not required to respond to this item.
Item 4. Persons Making the Solicitation — (a) Solicitations not subject to Rule
14a-12(c) (§ 240.14a-12(c)). (1) If the solicitation is made by the registrant, so state.
Give the name of any director of the registrant who has informed the registrant in writing
that he intends to oppose any action intended to be taken by the registrant and indicate the
action which he intends to oppose.
(2) If the solicitation is made otherwise than by the
registrant, so state and give the names of the participants in the solicitation, as defined
in paragraphs (a) (iii), (iv), (v) and (vi) of Instruction 3 to this Item.
(3) If the solicitation is to be made otherwise than
by the use of the mails or pursuant to § 240.14a-16, describe the methods to be employed. If
the solicitation is to be made by specially, engaged employees or paid solicitors, state (i)
the material features of any contract or arrangement for such solicitation and identify the
parties, and (ii) the cost or anticipated cost thereof.
(4) State the names of the persons by whom the cost
of solicitation has been or will be borne, directly or indirectly.
(b) Solicitations subject to Rule 14a-12(c) (§
240.14a-12(c)). (1) State by whom the solicitation is made and describe the methods
employed and to be employed to solicit security holders.
(2) If regular employees of the registrant or any
other participant in a solicitation have been or are to be employed to solicit security
holders, describe the class or classes of employees to be so employed, and the manner and
nature of their employment for such purpose.
(3) If specially engaged employees, representatives
or other persons have been or are to be employed to solicit security holders, state (i) the
material features of any contract or arrangement for such solicitation and the identity of
the parties, (ii) the cost or anticipated cost thereof and (iii) the approximate number of
such employees of employees or any other person (naming such other person) who will solicit
security holders).
(4) State the total amount estimated to be spent and
the total expenditures to date for, in furtherance of, or in connection with the
solicitation of security holders.
(5) State by whom the cost of the solicitation will
be borne. If such cost is to be borne initially by any person other than the registrant,
state whether reimbursement will be sought from the registrant, and, if so, whether the
question of such reimbursement will be submitted to a vote of security holders.
(6) If any such solicitation is terminated pursuant
to a settlement between the registrant and any other participant in such solicitation,
describe the terms of such settlement, including the cost or anticipated cost thereof to the
registrant.
Instructions. 1. With respect to solicitations subject to Rule 14a-12(c) (§
240.14a-12(c)), costs and expenditures within the meaning of this Item 4 shall include fees
for attorneys, accountants, public relations or financial advisers, solicitors, advertising,
printing, transportation, litigation and other costs incidental to the solicitation, except
that the registrant may exclude the amount of such costs represented by the amount normally
expended for a solicitation for an election of directors in the absence of a contest, and
costs represented by salaries and wages of regular employees and officers, provided a
statement to that effect is included in the proxy statement.
2. The information required pursuant to paragraph
(b)(6) of this Item should be included in any amended or revised proxy statement or other
soliciting materials relating to the same meeting or subject matter furnished to security
holders by the registrant subsequent to the date of settlement.
3. For purposes of this Item 4 and Item 5 of this
Schedule 14A:
(a) The terms “participant” and “participant in a
solicitation” include the following:
(i) In the case of a solicitation made on behalf of
the registrant, the registrant, each director of the registrant and each of the registrant's
nominees for election as a director;
(ii) In the case of a solicitation made otherwise
than on behalf of the registrant, each of the soliciting person's nominees for election as a
director;
(iii) Any committee or group which solicits proxies,
any member of such committee or group, and any person whether or not named as a member who,
acting alone or with one or more other persons, directly or indirectly takes the initiative,
or engages, in organizing, directing, or arranging for the financing of any such committee
or group;
(iv) Any person who finances or joins with another to
finance the solicitation of proxies, except persons who contribute not more than $500 and
who are not otherwise participants;
(v) Any person who lends money or furnishes credit or
enters into any other arrangements, pursuant to any contract or understanding with a
participant, for the purpose of financing or otherwise inducing the purchase, sale, holding
or voting of securities of the registrant by any participant or other persons, in support of
or in opposition to a participant; except that such terms do not include a bank, broker or
dealer who, in the ordinary course of business, lends money or executes orders for the
purchase or sale of securities and who is not otherwise a participant; and
(vi) Any person who solicits proxies.
(b) The terms “participant” and “participant in a
solicitation” do not include:
(i) Any person or organization retained or employed
by a participant to solicit security holders and whose activities are limited to the duties
required to be performed in the course of such employment;
(ii) Any person who merely transmits proxy soliciting
material or performs other ministerial or clerical duties;
(iii) Any person employed by a participant in the
capacity of attorney, accountant, or advertising, public relations or financial adviser, and
whose activities are limited to the duties required to be performed in the course of such
employment;
(iv) Any person regularly employed as an officer or
employee of the registrant or any of its subsidiaries who is not otherwise a participant;
or
(v) Any officer or director of, or any person
regularly employed by, any other participant, if such officer, director or employee is not
otherwise a participant.
Item 5. Interest of certain Persons in Matters To Be Acted Upon(a) Solicitations
not subject to Rule 14a-12(c) (§ 240.14a-12(c)). Describe briefly any substantial
interest, direct or indirect, by security holdings or otherwise, of each of the following
persons in any matter to be acted upon, other than elections to office:
(1) If the solicitation is made on behalf of the
registrant, each person who has been a director or executive officer of the registrant at
any time since the beginning of the last fiscal year.
(2) If the solicitation is made otherwise than on
behalf of the registrant, each participant in the solicitation, as defined in paragraphs (a)
(iii), (iv), (v), and (vi) of Instruction 3 to Item 4 of this Schedule 14A.
(3) Each nominee for election as a director of the
registrant.
(4) Each associate of any of the foregoing
persons.
(5) If the solicitation is made on behalf of the
registrant, furnish the information required by Item 402(t) of Regulation S-K (§ 229.402(t)
of this chapter).
Instruction to paragraph (a). Except in the case of a solicitation subject to this
regulation made in opposition to another solicitation subject to this regulation, this
sub-item (a) shall not apply to any interest arising from the ownership of securities of the
registrant where the security holder receives no extra or special benefit not shared on a
pro rata basis by all other holders of the same class.
(b) Solicitation subject to Rule 14a-12(c) (§
240.14a-12(c)). With respect to any solicitation subject to Rule 14a-12(c) (§
240.14a-12(c)):
(1) Describe briefly any substantial interest, direct
or indirect, by security holdings or otherwise, of each participant as defined in paragraphs
(a) (ii), (iii), (iv), (v) and (vi) of Instruction 3 to Item 4 of this Schedule 14A, in any
matter to be acted upon at the meeting, and include with respect to each participant the
following information, or a fair and accurate summary thereof:
(i) Name and business address of the participant.
(ii) The participant's present principal occupation
or employment and the name, principal business and address of any corporation or other
organization in which such employment is carried on.
(iii) State whether or not, during the past ten
years, the participant has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) and, if so, give dates, nature of conviction, name and
location of court, and penalty imposed or other disposition of the case. A negative answer
need not be included in the proxy statement or other soliciting material.
(iv) State the amount of each class of securities of
the registrant which the participant owns beneficially, directly or indirectly.
(v) State the amount of each class of securities of
the registrant which the participant owns of record but not beneficially.
(vi) State with respect to all securities of the
registrant purchased or sold within the past two years, the dates on which they were
purchased or sold and the amount purchased or sold on each such date.
(vii) If any part of the purchase price or market
value of any of the shares specified in paragraph (b)(1)(vi) of this Item is represented by
funds borrowed or otherwise obtained for the purpose of acquiring or holding such
securities, so state and indicate the amount of the indebtedness as of the latest
practicable date. If such funds were borrowed or obtained otherwise than pursuant to a
margin account or bank loan in the regular course of business of a bank, broker or dealer,
briefly describe the transaction, and state the names of the parties.
(viii) State whether or not the participant is, or
was within the past year, a party to any contract, arrangements or understandings with any
person with respect to any securities of the registrant, including, but not limited to joint
ventures, loan or option arrangements, puts or calls, guarantees against loss or guarantees
of profit, division of losses or profits, or the giving or withholding of proxies. If so,
name the parties to such contracts, arrangements or understandings and give the details
thereof.
(ix) State the amount of securities of the registrant
owned beneficially, directly or indirectly, by each of the participant's associates and the
name and address of each such associate.
(x) State the amount of each class of securities of
any parent or subsidiary of the registrant which the participant owns beneficially, directly
or indirectly.
(xi) Furnish for the participant and associates of
the participant the information required by Item 404(a) of Regulation S-K (§ 229.404(a) of
this chapter).
(xii) State whether or not the participant or any
associates of the participant have any arrangement or understanding with any person —
(A) with respect to any future employment by the
registrant or its affiliates; or
(B) with respect to any future transactions to which
the registrant or any of its affiliates will or may be a party.
If so, describe such arrangement or understanding and
state the names of the parties thereto.
(2) With respect to any person, other than a director
or executive officer of the registrant acting solely in that capacity, who is a party to an
arrangement or understanding pursuant to which a nominee for election as director is
proposed to be elected, describe any substantial interest, direct or indirect, by security
holdings or otherwise, that such person has in any matter to be acted upon at the meeting,
and furnish the information called for by paragraphs (b)(1) (xi) and (xii) of this Item.
(3) If the solicitation is made on behalf of the
registrant, furnish the information required by Item 402(t) of Regulation S-K (§ 229.402(t)
of this chapter).
Instruction to paragraph (b): For purposes of this Item 5, beneficial ownership shall
be determined in accordance with Rule 13d-3 under the Act (Section 240.13d-3 of this
chapter).
Item 6. Voting securities and principal holders thereof, (a) As to each class of
voting securities of the registrant entitled to be voted at the meeting (or by written
consents or authorizations if no meeting is held), state the number of shares outstanding
and the number of votes to which each class is entitled.
(b) State the record date, if any, with respect to
this solicitation. If the right to vote or give consent is not to be determined, in whole or
in part, by reference to a record date, indicate the criteria for the determination of
security holders entitled to vote or give consent.
(c) If action is to be taken with respect to the
election of directors and if the persons solicited have cumulative voting rights: (1) Make a
statement that they have such rights, (2) briefly describe such rights, (3) state briefly
the conditions precedent to the exercise thereof, and (4) if discretionary authority to
cumulate votes is solicited, so indicate.
(d) Furnish the information required by Item 403 of
Regulation S-K (§ 229.403 of this chapter) to the extent known by the persons on whose
behalf the solicitation is made.
(e) If, to the knowledge of the persons on whose
behalf the solicitation is made, a change in control of the registrant has occurred since
the beginning of its last fiscal year, state the name of the person(s) who acquired such
control, the amount and the source of the consideration used by such person or persons; the
basis of the control, the date and a description of the transaction(s) which resulted in the
change of control and the percentage of voting securities of the registrant now beneficially
owned directly or indirectly by the person(s) who acquired control; and the identity of the
person(s) from whom control was assumed. If the source of all or any part of the
consideration used is a loan made in the ordinary course of business by a bank as defined by
section 3(a)(6) of the Act, the identity of such bank shall be omitted provided a request
for confidentiality has been made pursuant to section 13(d)(1)(B) of the Act by the
person(s) who acquired control. In lieu thereof, the material shall indicate that the
identity of the bank has been so omitted and filed separately with the Commission.
Instruction. 1. State the terms of any loans or pledges obtained by the new control
group for the purpose of acquiring control, and the names of the lenders or pledgees.
2. Any arrangements or understandings among members
of both the former and new control groups and their associates with respect to election of
directors or other matters should be described.
Item 7. Directors and executive officers. If action is to be taken with respect to
the election of directors, furnish the following information in tabular form to the extent
practicable. If, however, the solicitation is made on behalf of persons other than the
registrant, the information required need be furnished only as to nominees of the persons
making the solicitation.
(a) The information required by Item 103(c)(2) of
Regulation S-K (§ 229.103(c)(2) of this chapter) with respect to directors and executive
officers.
(b) The information required by Items 401, 404(a) and
(b), 405, 407 and 408(b) of Regulation S-K (§§ 229.401, 229.404(a) and (b), 229.405,
229.407, and 229.408(b) of this chapter), other than the information required by:
(i) Paragraph (c)(3) of Item 407 of Regulation S-K
(§ 229.407(c)(3) of this chapter); and
(ii) Paragraphs (e)(4) and (e)(5) of Item 407 of
Regulation S-K (§§ 229.407(e)(4) and 229.407(e)(5) of this chapter) (which are required by
Item 8 of this Schedule 14A).
(c) [Reserved]
(d) If a registrant is required to include a
shareholder nominee or nominees submitted to the registrant for inclusion in the
registrant's proxy materials pursuant to a procedure set forth under applicable state or
foreign law, or the registrant's governing documents providing for the inclusion of
shareholder director nominees in the registrant's proxy materials, the registrant must
include in its proxy statement the disclosure required from the nominating shareholder or
nominating shareholder group under Item 6 of § 240.14n-101 with regard to the nominee or
nominees and the nominating shareholder or nominating shareholder group.
Instruction to Item 7. The information disclosed pursuant to paragraph (d) of this
Item 7 will not be deemed incorporated by reference into any filing under the Securities Act
of 1933 (15 U.S.C. 77a et seq.), the Securities Exchange Act of 1934 (15 U.S.C. 78a
et seq.), or the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.),
except to the extent that the registrant specifically incorporates that information by
reference.
(e) In lieu of the information required by this Item
7, investment companies registered under the Investment Company Act of 1940 (15 U.S.C. 80a)
must furnish the information required by Item 22(b) of this Schedule 14A.
(f) If a person is conducting a solicitation that is subject to
§ 240.14a-19, the registrant must include in its proxy statement a statement directing
shareholders to refer to any other soliciting person's proxy statement for information
required by Item 7 of this Schedule 14A with regard to such person's nominee or nominees and
a soliciting person other than the registrant must include in its proxy statement a
statement directing shareholders to refer to the registrant's or other soliciting person's
proxy statement for information required by Item 7 of this Schedule 14A with regard to the
registrant's or other soliciting person's nominee or nominees. The statement must explain to
shareholders that they can access the other soliciting person's proxy statement, and any
other relevant documents, without cost on the Commission's website.
Item 8. Compensation of directors and executive officers. Furnish the information
required by Item 402 of Regulation S-K (§ 229.402 of this chapter) and paragraphs (e)(4) and
(e)(5) of Item 407 of Regulation S-K (§ 229.407(e)(4) and (e)(5) of this chapter) if action
is to be taken with regard to:
(a) The election of directors;
(b) Any bonus, profit sharing or other compensation
plan, contract or arrangement in which any director, nominee for election as a director, or
executive officer of the registrant will participate;
(c) Any pension or retirement plan in which any such
person will participate; or
(d) The granting or extension to any such person of
any options, warrants or rights to purchase any securities, other than warrants or rights
issued to security holders as such, on a pro rata basis.
However, if the solicitation is made on behalf of
persons other than the registrant, the information required need be furnished only as to
nominees of the persons making the solicitation and associates of such nominees. In the case
of investment companies registered under the Investment Company Act of 1940 (15 U.S.C. 80a),
furnish the information required by Item 22(b)(13) of this Schedule 14A.
Instruction. If an otherwise reportable compensation plan became subject to such
requirements because of an acquisition or merger and, within one year of the acquisition or
merger, such plan was terminated for purposes of prospective eligibility, the registrant may
furnish a description of its obligation to the designated individuals pursuant to the
compensation plan. Such description may be furnished in lieu of a description of the
compensation plan in the proxy statement.
Item 9. Independent public accountants. If the solicitation is made on behalf of the
registrant and relates to: (1) The annual (or special meeting in lieu of annual) meeting of
security holders at which directors are to be elected, or a solicitation of consents or
authorizations in lieu of such meeting or (2) the election, approval or ratification of the
registrant's accountant, furnish the following information describing the registrant's
relationship with its independent public accountant:
(a) The name of the principal accountant selected or
being recommended to security holders for election, approval or ratification for the current
year. If no accountant has been selected or recommended, so state and briefly describe the
reasons therefor.
(b) The name of the principal accountant for the
fiscal year most recently completed if different from the accountant selected or recommended
for the current year or if no accountant has yet been selected or recommended for the
current year.
(c) The proxy statement shall indicate: (1) Whether
or not representatives of the principal accountant for the current year and for the most
recently completed fiscal year are expected to be present at the security holders' meeting,
(2) whether or not they will have the opportunity to make a statement if they desire to do
so, and (3) whether or not such representatives are expected to be available to respond to
appropriate questions.
(d) If during the registrant's two most recent fiscal
years or any subsequent interim period, (1) an independent accountant who was previously
engaged as the principal accountant to audit the registrant's financial statements, or an
independent accountant on whom the principal accountant expressed reliance in its report
regarding a significant subsidiary, has resigned (or indicated it has declined to stand for
re-election after the completion of the current audit) or was dismissed, or (2) a new
independent accountant has been engaged as either the principal accountant to audit the
registrant's financial statements or as an independent accountant on whom the principal
accountant has expressed or is expected to express reliance in its report regarding a
significant subsidiary, then, notwithstanding any previous disclosure, provide the
information required by Item 304(a) of Regulation S-K (§ 229.304 of this chapter).
(e)(1) Disclose, under the caption Audit Fees,
the aggregate fees billed for each of the last two fiscal years for professional services
rendered by the principal accountant for the audit of the registrant's annual financial
statements and review of financial statements included in the registrant's Form 10-Q (17 CFR
249.308a) or services that are normally provided by the accountant in connection with
statutory and regulatory filings or engagements for those fiscal years.
(2) Disclose, under the caption Audit-Related
Fees, the aggregate fees billed in each of the last two fiscal years for assurance and
related services by the principal accountant that are reasonably related to the performance
of the audit or review of the registrant's financial statements and are not reported under
paragraph (e)(1) of this section. Registrants shall describe the nature of the services
comprising the fees disclosed under this category.
(3) Disclose, under the caption Tax Fees, the
aggregate fees billed in each of the last two fiscal years for professional services
rendered by the principal accountant for tax compliance, tax advice, and tax planning.
Registrants shall describe the nature of the services comprising the fees disclosed under
this category.
(4) Disclose, under the caption All Other
Fees, the aggregate fees billed in each of the last two fiscal years for products and
services provided by the principal accountant, other than the services reported in
paragraphs (e)(1) through (e)(3) of this section. Registrants shall describe the nature of
the services comprising the fees disclosed under this category.
(5)(i) Disclose the audit committee's pre-approval
policies and procedures described in 17 CFR 210.2-01(c)(7)(i).
(ii) Disclose the percentage of services described in
each of paragraphs (e)(2) through (e)(4) of this section that were approved by the audit
committee pursuant to 17 CFR 210.2-01(c)(7)(i)(C).
(6) If greater than 50 percent, disclose the
percentage of hours expended on the principal accountant's engagement to audit the
registrant's financial statements for the most recent fiscal year that were attributed to
work performed by persons other than the principal accountant's full-time, permanent
employees.
(7) If the registrant is an investment company,
disclose the aggregate non-audit fees billed by the registrant's accountant for services
rendered to the registrant, and to the registrant's investment adviser (not including any
subadviser whose role is primarily portfolio management and is subcontracted with or
overseen by another investment adviser), and any entity controlling, controlled by, or under
common control with the adviser that provides ongoing services to the registrant for each of
the last two fiscal years of the registrant.
(8) If the registrant is an investment company,
disclose whether the audit committee of the board of directors has considered whether the
provision of non-audit services that were rendered to the registrant's investment adviser
(not including any subadviser whose role is primarily portfolio management and is
subcontracted with or overseen by another investment adviser), and any entity controlling,
controlled by, or under common control with the investment adviser that provides ongoing
services to the registrant that were not pre-approved pursuant to 17 CFR 210.2-01(c)(7)(ii)
is compatible with maintaining the principal accountant's independence.
Instruction to Item 9(e).
For purposes of Item 9(e)(2), (3), and (4),
registrants that are investment companies must disclose fees billed for services rendered to
the registrant and separately, disclose fees required to be approved by the investment
company registrant's audit committee pursuant to 17 CFR 210.2-01(c)(7)(ii). Registered
investment companies must also disclose the fee percentages as required by item 9(e)(5)(ii)
for the registrant and separately, disclose the fee percentages as required by item
9(e)(5)(ii) for the fees required to be approved by the investment company registrant's
audit committee pursuant to 17 CFR 210.2-01(c)(7)(ii).
Item 10. Compensation Plans. If action is to be taken with respect to any plan
pursuant to which cash or noncash compensation may be paid or distributed, furnish the
following information:
(a) Plans subject to security holder action.
(1) Describe briefly the material features of the plan being acted upon, identify each class
of persons who will be eligible to participate therein, indicate the approximate number of
persons in each such class, and state the basis of such participation.
(2)(i) In the tabular format specified below,
disclose the benefits or amounts that will be received by or allocated to each of the
following under the plan being acted upon, if such benefits or amounts are determinable:
| Plan name | ||
|---|---|---|
| Name and position | Dollar value ($) | Number of units |
| CEO | ||
| A | ||
| B | ||
| C | ||
| D | ||
| Executive Group | ||
| Non-Executive Director Group | ||
| Non-Executive Officer Employee Group | ||
(ii) The table required by paragraph (a)(2)(i) of
this Item shall provide information as to the following persons:
(A) Each person (stating name and position) specified
in paragraph (a)(3) of Item 402 of Regulation S-K (§ 229.402(a)(3) of this chapter);
Instruction: In the case of investment companies registered under the Investment
Company Act of 1940, furnish the information for Compensated Persons as defined in Item
22(b)(13) of this Schedule in lieu of the persons specified in paragraph (a)(3) of Item 402
of Regulation S-K (§ 229.402(a)(3) of this chapter).
(B) All current executive officers as a group;
(C) All current directors who are not executive
officers as a group; and
(D) All employees, including all current officers who
are not executive officers, as a group.
Instruction to New Plan Benefits
Table
Additional columns should be added for each plan with
respect to which security holder action is to be taken.
(iii) If the benefits or amounts specified in
paragraph (a)(2)(i) of this item are not determinable, state the benefits or amounts which
would have been received by or allocated to each of the following for the last completed
fiscal year if the plan had been in effect, if such benefits or amounts may be determined,
in the table specified in paragraph (a)(2)(i) of this Item:
(A) Each person (stating name and position) specified
in paragraph (a)(3) of Item 402 of Regulation S-K (§ 229.402(a)(3) of this chapter);
(B) All current executive officers as a group;
(C) All current directors who are not executive
officers as a group; and
(D) All employees, including all current officers who
are not executive officers, as a group.
(3) If the plan to be acted upon can be amended,
otherwise than by a vote of security holders, to increase the cost thereof to the registrant
or to alter the allocation of the benefits as between the persons and groups specified in
paragraph (a)(2) of this item, state the nature of the amendments which can be so made.
(b)(1) Additional information regarding specified
plans subject to security holder action. With respect to any pension or retirement
plan submitted for security holder action, state:
(i) The approximate total amount necessary to fund
the plan with respect to past services, the period over which such amount is to be paid and
the estimated annual payments necessary to pay the total amount over such period; and
(ii) The estimated annual payment to be made with
respect to current services. In the case of a pension or retirement plan, information called
for by paragraph (a)(2) of this Item may be furnished in the format specified by paragraph
(h)(2) of Item 402 of Regulation S-K (§ 229.402(h)(2) of this chapter).
Instruction to paragraph (b)(1)(ii). In the case of investment companies registered
under the Investment Company Act of 1940 (15 U.S.C. 80a), refer to Instruction 4 in Item
22(b)(13)(i) of this Schedule in lieu of paragraph (h)(2) of Item 402 of Regulation S-K (§
229.402(h)(2) of this chapter).
(2)(i) With respect to any specific grant of or any
plan containing options, warrants or rights submitted for security holder action, state:
(A) The title and amount of securities underlying
such options, warrants or rights;
(B) The prices, expiration dates and other material
conditions upon which the options, warrants or rights may be exercised;
(C) The consideration received or to be received by
the registrant or subsidiary for the granting or extension of the options, warrants or
rights;
(D) The market value of the securities underlying the
options, warrants, or rights as of the latest practicable date; and
(E) In the case of options, the federal income tax
consequences of the issuance and exercise of such options to the recipient and the
registrant; and
(ii) State separately the amount of such options
received or to be received by the following persons if such benefits or amounts are
determinable:
(A) Each person (stating name and position) specified
in paragraph (a)(3) of Item 402 of Regulation S-K (§ 229.402(a)(3) of this chapter);
(B) All current executive officers as a group;
(C) All current directors who are not executive
officers as a group;
(D) Each nominee for election as a director;
(E) Each associate of any of such directors,
executive officers or nominees;
(F) Each other person who received or is to receive 5
percent of such options, warrants or rights; and
(G) All employees, including all current officers who
are not executive officers, as a group.
(c) Information regarding plans and other
arrangements not subject to security holder action. Furnish the information required
by Item 201(d) of Regulation S-K (§ 229.201(d) of this chapter).
Instructions to paragraph (c).
1. If action is to be taken as described in paragraph
(a) of this Item with respect to the approval of a new compensation plan under which equity
securities of the registrant are authorized for issuance, information about the plan shall
be disclosed as required under paragraphs (a) and (b) of this Item and shall not be included
in the disclosure required by Item 201(d) of Regulation S-K (§ 229.201(d) of this chapter).
If action is to be taken as described in paragraph (a) of this Item with respect to the
amendment or modification of an existing plan under which equity securities of the
registrant are authorized for issuance, the registrant shall include information about
securities previously authorized for issuance under the plan (including any outstanding
options, warrants and rights previously granted pursuant to the plan and any securities
remaining available for future issuance under the plan) in the disclosure required by Item
201(d) of Regulation S-K (§ 229.201(d) of this chapter). Any additional securities that are
the subject of the amendments or modification of the existing plan shall be disclosed as
required under paragraphs (a) and (b) of this Item and shall not be included in the Item
201(d) disclosure.
Instructions
1. The term plan as used in this Item means
any plan as defined in paragraph (a)(6)(ii) of Item 402 of Regulation S-K (§
229.402(a)(6)(ii) of this chapter).
2. If action is to be taken with respect to a
material amendment or modification of an existing plan, the item shall be answered with
respect to the plan as proposed to be amended or modified and shall indicate any material
differences from the existing plan.
3. If the plan to be acted upon is set forth in a
written document, three copies thereof shall be filed with the Commission at the time copies
of the proxy statement and form of proxy are first filed pursuant to paragraph (a) or (b) of
§ 240.14a-6. Electronic filers shall file with the Commission a copy of such written plan
document in electronic format as an appendix to the proxy statement. It need not be provided
to security holders unless it is a part of the proxy statement.
4. Paragraph (b)(2)(ii) does not apply to warrants or
rights to be issued to security holders as such on a pro rata basis.
5. The Commission shall be informed, as supplemental
information, when the proxy statement is first filed, as to when the options, warrants or
rights and the shares called for thereby will be registered under the Securities Act or, if
such registration is not contemplated, the section of the Securities Act or rule of the
Commission under which exemption from such registration is claimed and the facts relied upon
to make the exemption available.
Item 11. Authorization or issuance of securities otherwise than for exchange. If
action is to be taken with respect to the authorization or issuance of any securities
otherwise than for exchange for outstanding securities of the registrant, furnish the
following information:
(a) State the title and amount of securities to be
authorized or issued.
(b) Furnish the information required by Item 202 of
Regulation S-K (§ 229.202 of this chapter). If the terms of the securities cannot be stated
or estimated with respect to any or all of the securities to be authorized, because no
offering thereof is contemplated in the proximate future, and if no further authorization by
security holders for the issuance thereof is to be obtained, it should be stated that the
terms of the securities to be authorized, including dividend or interest rates, conversion
prices, voting rights, redemption prices, maturity dates, and similar matters will be
determined by the board of directors. If the securities are additional shares of common
stock of a class outstanding, the description may be omitted except for a statement of the
preemptive rights, if any. Where the statutory provisions with respect to preemptive rights
are so indefinite or complex that they cannot be stated in summarized form, it will suffice
to make a statement in the form of an opinion of counsel as to the existence and extent of
such rights.
(c) Describe briefly the transaction in which the
securities are to be issued including a statement as to (1) the nature and approximate
amount of consideration received or to be received by the registrant and (2) the approximate
amount devoted to each purpose so far as determinable for which the net proceeds have been
or are to be used. If it is impracticable to describe the transaction in which the
securities are to be issued, state the reason, indicate the purpose of the authorization of
the securities, and state whether further authorization for the issuance of the securities
by a vote of security holders will be solicited prior to such issuance.
(d) If the securities are to be issued otherwise than
in a public offering for cash, state the reasons for the proposed authorization or issuance
and the general effect thereof upon the rights of existing security holders.
(e) Furnish the information required by Item 13(a) of
this schedule.
Item 12. Modification or exchange of securities. If action is to be taken with
respect to the modification of any class of securities of the registrant, or the issuance or
authorization for issuance of securities of the registrant in exchange for outstanding
securities of the registrant furnish the following information:
(a) If outstanding securities are to be modified,
state the title and amount thereof. If securities are to be issued in exchange for
outstanding securities, state the title and amount of securities to be so issued, the title
and amount of outstanding securities to be exchanged therefor and the basis of the
exchange.
(b) Describe any material differences between the
outstanding securities and the modified or new securities in respect of any of the matters
concerning which information would be required in the description of the securities in Item
202 of Regulation S-K (§ 229.202 of this chapter).
(c) State the reasons for the proposed modification
or exchange and the general effect thereof upon the rights of existing security holders.
(d) Furnish a brief statement as to arrears in
dividends or as to defaults in principal or interest in respect to the outstanding
securities which are to be modified or exchanged and such other information as may be
appropriate in the particular case to disclose adequately the nature and effect of the
proposed action.
(e) Outline briefly any other material features of
the proposed modification or exchange. If the plan of proposed action is set forth in a
written document, file copies thereof with the Commission in accordance with §
240.14a-6.
(f) Furnish the information required by Item 13(a) of
this Schedule.
Instruction. If the existing security is presently listed and registered on a
national securities exchange, state whether the registrant intends to apply for listing and
registration of the new or reclassified security on such exchange or any other exchange. If
the registrant does not intend to make such application, state the effect of the termination
of such listing and registration.
Item 13. Financial and other information. (See Notes D and E at the beginning
of this Schedule.)
(a) Information required. If action is to be
taken with respect to any matter specified in Item 11 or 12, furnish the following
information:
(1) Financial statements meeting the requirements of
Regulation S-X, including financial information required by Rule 3-05 and Article 11 of
Regulation S-X with respect to transactions other than pursuant to which action is to be
taken as described in this proxy statement (A smaller reporting company may provide the
information in Rules 8-04 and 8-05 of Regulation S-X (§§ 210.8-04 and 210.8-05 of this
chapter) in lieu of the financial information required by Rule 3-05 and Article 11 of
Regulation S-X);
(2) Item 302 of Regulation S-K, supplementary
financial information;
(3) Item 303 of Regulation S-K, management's
discussion and analysis of financial condition and results of operations;
(4) Item 304 of Regulation S-K, changes in and
disagreements with accountants on accounting and financial disclosure;
(5) Item 305 of Regulation S-K, quantitative and
qualitative disclosures about market risk; and
(6) A statement as to whether or not representatives
of the principal accountants for the current year and for the most recently completed fiscal
year:
(i) Are expected to be present at the security
holders' meeting;
(ii) Will have the opportunity to make a statement if
they desire to do so; and
(iii) Are expected to be available to respond to
appropriate questions.
(b) Incorporation by reference. The
information required pursuant to paragraph (a) of this Item may be incorporated by reference
into the proxy statement as follows:
(1) S-3 registrants and certain N-2
registrants.
If the registrant meets the requirements of Form S-3 or General Instruction A.2 of Form
N-2 (see Note E to this Schedule), it may incorporate by reference to previously-filed
documents any of the information required by paragraph (a) of this Item, provided that the
requirements of paragraph (c) are met. Where the registrant meets the requirements of Form
S-3 or General Instruction A.2 of Form N-2 and has elected to furnish the required
information by incorporation by reference, the registrant may elect to update the
information so incorporated by reference to information in subsequently-filed documents.
(2) All registrants. The registrant may
incorporate by reference any of the information required by paragraph (a) of this Item,
provided that the information is contained in an annual report to security holders or a
previously-filed statement or report, such report or statement is delivered to security
holders with the proxy statement and the requirements of paragraph (c) are met.
(c) Certain conditions applicable to incorporation
by reference. Registrants eligible to incorporate by reference into the proxy
statement the information required by paragraph (a) of this Item in the manner specified by
paragraphs (b)(1) and (b)(2) may do so only if:
(1) The information is not required to be included in
the proxy statement pursuant to the requirement of another Item;
(2) The proxy statement identifies on the last
page(s) the information incorporated by reference; and
(3) The material incorporated by reference
substantially meets the requirements of this Item or the appropriate portions of this
Item.
Instructions to Item 13.
1. Notwithstanding the provisions of this Item, any
or all of the information required by paragraph (a) of this Item not material for the
exercise of prudent judgment in regard to the matter to be acted upon may be omitted. In the
usual case the information is deemed material to the exercise of prudent judgment where the
matter to be acted upon is the authorization or issuance of a material amount of senior
securities, but the information is not deemed material where the matter to be acted upon is
the authorization or issuance of common stock, otherwise than in an exchange, merger,
consolidation, acquisition or similar transaction, the authorization of preferred stock
without present intent to issue or the authorization of preferred stock for issuance for
cash in an amount constituting fair value.
2. In order to facilitate compliance with Rule
2-02(a) of Regulation S-X, one copy of the definitive proxy statement filed with the
Commission shall include a manually signed copy of the accountant's report. If the financial
statements are incorporated by reference, a manually signed copy of the accountant's report
shall be filed with the definitive proxy statement.
3. Notwithstanding the provisions of Regulation S-X,
no schedules other than those prepared in accordance with Rules 12-15, 12-28 and 12-29 (or,
for management investment companies, Rules 12-12 through 12-14) of that regulation need be
furnished in the proxy statement.
4. Unless registered on a national securities
exchange or otherwise required to furnish such information, registered investment companies
need not furnish the information required by paragraph (a)(2) or (3) of this Item.
5. If the registrant submits preliminary proxy
material incorporating by reference financial statements required by this Item, the
registrant should furnish a draft of the financial statements if the document from which
they are incorporated has not been filed with or furnished to the Commission.
6. A registered investment company need not comply
with items (a)(2), (a)(3), and (a)(5) of this Item 13.
Item 14. Mergers, consolidations, acquisitions and similar matters. (See Notes A and
D at the beginning of this Schedule)
Instructions to Item 14:
1. In transactions in which the consideration offered
to security holders consists wholly or in part of securities registered under the Securities
Act of 1933, furnish the information required by Form S-4 (§ 239.25 of this chapter), Form
F-4 (§ 239.34 of this chapter), or Form N-14 (§ 239.23 of this chapter), as applicable,
instead of this Item. Only a Form S-4, Form F-4, or Form N-14 must be filed in accordance
with § 240.14a-6(j).
2. (a) In transactions in which the consideration
offered to security holders consists wholly of cash, the information required by paragraph
(c)(1) of this Item for the acquiring company need not be provided unless the information is
material to an informed voting decision (e.g., the security holders of the target company
are voting and financing is not assured).
(b) Additionally, if only the security holders of the
target company are voting:
i. The financial information in paragraphs
(b)(8)-(11) of this Item for the acquiring company and the target need not be provided;
and
ii. The information in paragraph (c)(2) of this Item
for the target company need not be provided.
If, however, the transaction is a going-private
transaction (as defined by § 240.13e-3), then the information required by paragraph (c)(2)
of this Item must be provided and to the extent that the going-private rules require the
information specified in paragraph (b)(8)-(b)(11) of this Item, that information must be
provided as well.
3. In transactions in which the consideration offered
to security holders consists wholly of securities exempt from registration under the
Securities Act of 1933 or a combination of exempt securities and cash, information about the
acquiring company required by paragraph (c)(1) of this Item need not be provided if only the
security holders of the acquiring company are voting, unless the information is material to
an informed voting decision. If only the security holders of the target company are voting,
information about the target company in paragraph (c)(2) of this Item need not be provided.
However, the information required by paragraph (c)(2) of this Item must be provided if the
transaction is a going-private (as defined by § 240.13e-3) or roll-up (as described by Item
901 of Regulation S-K (§ 229.901 of this chapter)) transaction.
4. The information required by paragraphs (b)(8)-(11)
and (c) need not be provided if the plan being voted on involves only the acquiring company
and one or more of its totally held subsidiaries and does not involve a liquidation or a
spin off.
5. To facilitate compliance with Rule 2-02(a) of
Regulation S-X (§ 210.2-02(a) of this chapter) (technical requirements relating to
accountants' reports), one copy of the definitive proxy statement filed with the Commission
must include a signed copy of the accountant's report. If the financial statements are
incorporated by reference, a signed copy of the accountant's report must be filed with the
definitive proxy statement. Signatures may be typed if the document is filed electronically
on EDGAR. See Rule 302 of Regulation S-T (§ 232.302 of this chapter).
6. Notwithstanding the provisions of Regulation S-X,
no schedules other than those prepared in accordance with § 210.12-15, § 210.12-28 and §
210.12-29 of this chapter (or, for management investment companies, §§ 210.12-12 through
210.12-14 of this chapter) of that regulation need be furnished in the proxy statement.
7. If the preliminary proxy material incorporates by
reference financial statements required by this Item, a draft of the financial statements
must be furnished to the Commission staff upon request if the document from which they are
incorporated has not been filed with or furnished to the Commission.
(a) Applicability. If action is to be taken
with respect to any of the following transactions, provide the information required by this
Item:
(1) A merger or consolidation;
(2) An acquisition of securities of another
person;
(3) An acquisition of any other going business or the
assets of a going business;
(4) A sale or other transfer of all or any
substantial part of assets; or
(5) A liquidation or dissolution.
(b) Transaction information. Provide the
following information for each of the parties to the transaction unless otherwise
specified:
(1) Summary term sheet. The information
required by Item 1001 of Regulation M-A (§ 229.1001 of this chapter).
(2) Contact information. The name, complete
mailing address and telephone number of the principal executive offices.
(3) Business conducted. A brief description of
the general nature of the business conducted.
(4) Terms of the transaction. The information
required by Item 1004(a)(2) of Regulation M-A (§ 229.1004 of this chapter).
(5) Regulatory approvals. A statement as to
whether any federal or state regulatory requirements must be complied with or approval must
be obtained in connection with the transaction and, if so, the status of the compliance or
approval.
(6) Reports, opinions, appraisals. If a
report, opinion or appraisal materially relating to the transaction has been received from
an outside party, and is referred to in the proxy statement, furnish the information
required by Item 1015(b) of Regulation M-A (§ 229.1015 of this chapter).
(7) Past contacts, transactions or
negotiations. The information required by Items 1005(b) and 1011(a)(1) of Regulation
M-A (§ 229.1005 of this chapter and § 229.1011 of this chapter), for the parties to the
transaction and their affiliates during the periods for which financial statements are
presented or incorporated by reference under this Item.
(8) [Reserved]
(9) [Reserved]
(10) [Reserved]
Instructions to paragraphs (b)(8), (b)(9) and (b)(10): [Reserved]
(11) Financial information. If material,
financial information required by Article 11 of Regulation S-X (§§ 210.10-01 through
229.11-03 of this chapter) with respect to this transaction.
Instructions to paragraph (b)(11):
1. Present any Article 11 information required with
respect to transactions other than those being voted upon (where not incorporated by
reference) together with the pro forma information relating to the transaction being voted
upon. In presenting this information, you must clearly distinguish between the transaction
being voted upon and any other transaction.
2. If current pro forma financial information with
respect to all other transactions is incorporated by reference, you need only present the
pro forma effect of this transaction.
(c) Information about the parties to the
transaction — (1) Acquiring company. Furnish the information required by Part B
(Registrant Information) of Form S-4 (§ 239.25 of this chapter) or Form F-4 (§ 239.34 of
this chapter), as applicable, for the acquiring company. However, financial statements need
only be presented for the latest two fiscal years and interim periods.
(2) Acquired company. Furnish the information
required by Part C (Information with Respect to the Company Being Acquired) of Form S-4 (§
239.25 of this chapter) or Form F-4 (§ 239.34 of this chapter), as applicable.
(d) Information about parties to the transaction:
registered investment companies and business development companies. If the acquiring
company or the acquired company is an investment company registered under the Investment
Company Act of 1940 or a business development company as defined by Section 2(a)(48) of the
Investment Company Act of 1940, provide the following information for that company instead
of the information specified by paragraph (c) of this Item:
(1) Information required by Item 101 of Regulation
S-K (§ 229.101 of this chapter), description of business;
(2) Information required by Item 102 of Regulation
S-K (§ 229.102 of this chapter), description of property;
(3) Information required by Item 103 of Regulation
S-K (§ 229.103 of this chapter), legal proceedings;
(4) Information required by Item 201(a), (b) and (c)
of Regulation S-K (§ 229.201(a), (b) and (c) of this chapter), market price of and dividends
on the registrant's common equity and related stockholder matters;
(5) Financial statements meeting the requirements of
Regulation S-X, including financial information required by Rule 3-05 and Article 11 of
Regulation S-X (§ 210.3-05 and § 210.11-01 through § 210.11-03 of this chapter) with respect
to transactions other than that as to which action is to be taken as described in this proxy
statement;
(6) [Reserved]
(7) Information required by Item 302 of Regulation
S-K (§ 229.302 of this chapter), supplementary financial information;
(8) Information required by Item 303 of Regulation
S-K (§ 229.303 of this chapter), management's discussion and analysis of financial condition
and results of operations; and
(9) Information required by Item 304 of Regulation
S-K (§ 229.304 of this chapter), changes in and disagreements with accountants on accounting
and financial disclosure.
Instruction to paragraph (d) of Item 14: Unless registered on a national securities
exchange or otherwise required to furnish such information, registered investment companies
need not furnish the information required by paragraphs (d)(6), (d)(7) and (d)(8) of this
Item.
(e) Incorporation by reference. (1) The
information required by paragraph (c) of this section may be incorporated by reference into
the proxy statement to the same extent as would be permitted by Form S-4 (§ 239.25 of this
chapter) or Form F-4 (§ 239.34 of this chapter), as applicable.
(2) Alternatively, the registrant may incorporate by
reference into the proxy statement the information required by paragraph (c) of this Item if
it is contained in an annual report sent to security holders in accordance with § 240.14a-3
of this chapter with respect to the same meeting or solicitation of consents or
authorizations that the proxy statement relates to and the information substantially meets
the disclosure requirements of Item 14 or Item 17 of Form S-4 (§ 239.25 of this chapter) or
Form F-4 (§ 239.34 of this chapter), as applicable.
(f) De-SPAC transactions. (1) If the transaction is a de-SPAC
transaction, as defined in § 229.1601(a) (Item 1601(a) of Regulation S-K), then the
disclosure provisions of §§ 229.1603, 229.1604(b)(1) through (6) and (c), 229.1605 through
229.1607, and 229.1609 (Items 1603, 1604(b)(1) through (6) and (c), 1605 through 1607, and
1609 of Regulation S-K) apply in addition to the provisions of this schedule and disclosure
thereunder must be provided in the proxy statement, and the structured data provisions of
§ 229.1610 (Item 1610 of Regulation S-K) apply to those disclosures. The information
required by § 229.1604(b)(1) through (6) must be briefly described in the front of the
disclosure document. To the extent that the applicable disclosure requirements of subpart
229.1600 of Regulation S-K are inconsistent with the disclosure requirements of this
schedule, the requirements of subpart 229.1600 are controlling.
(2) Provide the following additional information for the target
company:
(i) Information required by § 229.101 (Item 101 of Regulation S-K,
description of business);
(ii) Information required by § 229.102 (Item 102 of Regulation S-K,
description of property);
(iii) Information required by § 229.103 (Item 103 of Regulation S-K,
legal proceedings);
(iv) Information required by § 229.304 (Item 304 of Regulation S-K,
changes in and disagreements with accountants on accounting and financial disclosure);
(v) Information required by § 229.403 (Item 403 of Regulation S-K,
security ownership of certain beneficial owners and management), assuming the completion of
the de-SPAC transaction and any related financing transaction; and
(vi) Information required by § 229.701 (Item 701 of Regulation S-K,
recent sales of unregistered securities).
Item 15. Acquisition or disposition of property. If action is to be taken with
respect to the acquisition or disposition of any property, furnish the following
information:
(a) Describe briefly the general character and
location of the property.
(b) State the nature and amount of consideration to
be paid or received by the registrant or any subsidiary. To the extent practicable, outline
briefly the facts bearing upon the question of the fairness of the consideration.
(c) State the name and address of the transferer or
transferee, as the case may be and the nature of any material relationship of such person to
the registrant or any affiliate of the registrant.
(d) Outline briefly any other material features of
the contract or transaction.
Item 16. Restatement of accounts. If action is to be taken with respect to the
restatement of any asset, capital, or surplus account of the registrant furnish the
following information:
(a) State the nature of the restatement and the date
as of which it is to be effective.
(b) Outline briefly the reasons for the restatement
and for the selection of the particular effective date.
(c) State the name and amount of each account
(including any reserve accounts) affected by the restatement and the effect of the
restatement thereon. Tabular presentation of the amounts shall be made when appropriate,
particularly in the case of recapitalizations.
(d) To the extent practicable, state whether and the
extent, if any, to which, the restatement will, as of the date thereof, alter the amount
available for distribution to the holders of equity securities.
Item 17. Action with respect to reports. If action is to be taken with respect to any
report of the registrant or of its directors, officers or committees or any minutes of a
meeting of its security holders, furnish the following information:
(a) State whether or not such action is to constitute
approval or disapproval of any of the matters referred to in such reports or minutes.
(b) Identify each of such matters which it is
intended will be approved or disapproved, and furnish the information required by the
appropriate item or items of this schedule with respect to each such matter.
Item 18. Matters not required to be submitted. If action is to be taken with respect
to any matter which is not required to be submitted to a vote of security holders, state the
nature of such matter, the reasons for submitting it to a vote of security holders and what
action is intended to be taken by the registrant in the event of a negative vote on the
matter by the security holders.
Item 19. Amendment of character, bylaws or other documents. If action is to be taken
with respect to any amendment of the registrant's charter, bylaws or other documents as to
which information is not required above, state briefly the reasons for and the general
effect of such amendment.
Instructions. 1. Where the matter to be acted upon is the classification of
directors, state whether vacancies which occur during the year may be filled by the board of
directors to serve only until the next annual meeting or may be so filled for the remainder
of the full term.
2. Attention is directed to the discussion of
disclosure regarding anti-takeover and similar proposals in Release No. 34-15230 (October
13, 1978).
Item 20. Other proposed action. If action is to be taken on any matter not
specifically referred to in this Schedule 14A, describe briefly the substance of each such
matter in substantially the same degree of detail as is required by Items 5 to 19,
inclusive, of this Schedule, and, with respect to investment companies registered under the
Investment Company Act of 1940, Item 22 of this Schedule. Registrants required to provide a
separate shareholder vote pursuant to section 111(e)(1) of the Emergency Economic
Stabilization Act of 2008 (12 U.S.C. 5221(e)(1)) and § 240.14a-20 shall disclose that they
are providing such a vote as required pursuant to the Emergency Economic Stabilization Act
of 2008, and briefly explain the general effect of the vote, such as whether the vote is
non-binding.
Item 21. Voting procedures. As to each matter which is to be submitted to a vote of
security holders, furnish the following information:
(a) State the vote required for approval or election,
other than for the approval of auditors.
(b) Disclose the method by which votes will be
counted, including the treatment and effect under applicable state law and registrant
charter and bylaw provisions of abstentions, broker non-votes, and, to the extent
applicable, a security holder's withholding of authority to vote for a nominee in an
election of directors.
(c) When applicable, disclose how the soliciting person intends to
treat proxy authority granted in favor of any other soliciting person's nominees if such
other soliciting person abandons its solicitation or fails to comply with § 240.14a-19.
Item 22. Information required in investment company proxy statement. (a)
General.
(1) Definitions. Unless the context otherwise
requires, terms used in this Item that are defined in § 240.14a-1 (with respect to proxy
soliciting material), in § 240.14c-1 (with respect to information statements), and in the
Investment Company Act of 1940 shall have the same meanings provided therein and the
following terms shall also apply:
(i) Administrator. The term “Administrator”
shall mean any person who provides significant administrative or business affairs management
services to a Fund.
(ii) Affiliated broker. The term “Affiliated
Broker” shall mean any broker:
(A) That is an affiliated person of the Fund;
(B) That is an affiliated person of such person;
or
(C) An affiliated person of which is an affiliated
person of the Fund, its investment adviser, principal underwriter, or Administrator.
(iii) Distribution plan. The term
“Distribution Plan” shall mean a plan adopted pursuant to Rule 12b-1 under the Investment
Company Act of 1940 (§ 270.12b-1 of this chapter).
(iv) Family of Investment Companies. The term
“Family of Investment Companies” shall mean any two or more registered investment companies
that:
(A) Share the same investment adviser or principal
underwriter; and
(B) Hold themselves out to investors as related
companies for purposes of investment and investor services.
(v) Fund. The term “Fund” shall mean a
Registrant or, where the Registrant is a series company, a separate portfolio of the
Registrant.
(vi) Fund complex. The term “Fund Complex”
shall mean two or more Funds that:
(A) Hold themselves out to investors as related
companies for purposes of investment and investor services; or
(B) Have a common investment adviser or have an
investment adviser that is an affiliated person of the investment adviser of any of the
other Funds.
(vii) Immediate Family Member. The term
“Immediate Family Member” shall mean a person's spouse; child residing in the person's
household (including step and adoptive children); and any dependent of the person, as
defined in section 152 of the Internal Revenue Code (26 U.S.C. 152).
(viii) Officer. The term “Officer” shall mean
the president, vice-president, secretary, treasurer, controller, or any other officer who
performs policy-making functions.
(ix) Parent. The term “Parent” shall mean the
affiliated person of a specified person who controls the specified person directly or
indirectly through one or more intermediaries.
(x) Registrant. The term “Registrant” shall
mean an investment company registered under the Investment Company Act of 1940 (15 U.S.C.
80a) or a business development company as defined by section 2(a)(48) of the Investment
Company Act of 1940 (15 U.S.C. 80a-2(a)(48)).
(xi) Sponsoring Insurance Company. The term
“Sponsoring Insurance Company” of a Fund that is a separate account shall mean the insurance
company that establishes and maintains the separate account and that owns the assets of the
separate account.
(xii) Subsidiary. The term “Subsidiary” shall
mean an affiliated person of a specified person who is controlled by the specified person
directly, or indirectly through one or more intermediaries.
(2) [Reserved]
(3) General disclosure. Furnish the following
information in the proxy statement of a Fund or Funds:
(i) State the name and address of the Fund's
investment adviser, principal underwriter, and Administrator.
(ii) When a Fund proxy statement solicits a vote on
proposals affecting more than one Fund or class of securities of a Fund (unless the proposal
or proposals are the same and affect all Fund or class shareholders), present a summary of
all of the proposals in tabular form on one of the first three pages of the proxy statement
and indicate which Fund or class shareholders are solicited with respect to each
proposal.
(iii) Unless the proxy statement is accompanied by a
copy of the Fund's most recent annual report, state prominently in the proxy statement that
the Fund will furnish, without charge, a copy of the annual report and the most recent
semi-annual report succeeding the annual report, if any, to a shareholder upon request,
providing the name, address, and toll-free telephone number of the person to whom such
request shall be directed (or, if no toll-free telephone number is provided, a
self-addressed postage paid card for requesting the annual report). The Fund should provide
a copy of the annual report and the most recent semi-annual report succeeding the annual
report, if any, to the requesting shareholder by first class mail, or other means designed
to assure prompt delivery, within three business days of the request.
(iv) If the action to be taken would, directly or
indirectly, establish a new fee or expense or increase any existing fee or expense to be
paid by the Fund or its shareholders, provide a table showing the current and pro forma fees
(with the required examples) using the format prescribed in the appropriate registration
statement form under the Investment Company Act of 1940 (for open-end management investment
companies, Item 3 of Form N-1A (§ 239.15A); for closed-end management investment companies,
Item 3 of Form N-2 (§ 239.14); and for separate accounts that offer variable annuity
contracts, Item 4 of Form N-3 (§ 239.17a)).
Instructions. 1. Where approval is sought only for a change in asset breakpoints for
a pre-existing fee that would not have increased the fee for the previous year (or have the
effect of increasing fees or expenses, but for any other reason would not be reflected in a
pro forma fee table), describe the likely effect of the change in lieu of providing pro
forma fee information.
2. An action would indirectly establish or increase a
fee or expense where, for example, the approval of a new investment advisory contract would
result in higher custodial or transfer agency fees.
3. The tables should be prepared in a manner designed
to facilitate understanding of the impact of any change in fees or expenses.
4. A Fund that offers its shares exclusively to one
or more separate accounts and thus is not required to include a fee table in its prospectus
(see Item 3 of Form N-1A (§ 239.15A)) should nonetheless prepare a table showing current and
pro forma expenses and disclose that the table does not reflect separate account expenses,
including sales load.
(v) If action is to be taken with respect to the
election of directors or the approval of an advisory contract, describe any purchases or
sales of securities of the investment adviser or its Parents, or Subsidiaries of either,
since the beginning of the most recently completed fiscal year by any director or any
nominee for election as a director of the Fund.
Instructions. 1. Identify the parties, state the consideration, the terms of payment
and describe any arrangement or understanding with respect to the composition of the board
of directors of the Fund or of the investment adviser, or with respect to the selection of
appointment of any person to any office with either such company.
2. Transactions involving securities in an amount not
exceeding one percent of the outstanding securities of any class of the investment adviser
or any of its Parents or Subsidiaries may be omitted.
(b) Election of Directors. If action is to be
taken with respect to the election of directors of a Fund, furnish the following information
in the proxy statement in addition to, in the case of business development companies, the
information (and in the format) required by Item 7 and Item 8 of this Schedule 14A.
Instructions to introductory text of paragraph (b). 1. Furnish information with
respect to a prospective investment adviser to the extent applicable.
2. If the solicitation is made by or on behalf of a
person other than the Fund or an investment adviser of the Fund, provide information only as
to nominees of the person making the solicitation.
3. When providing information about directors and
nominees for election as directors in response to this Item 22(b), furnish information for
directors or nominees who are or would be “interested persons” of the Fund within the
meaning of section 2(a)(19) of the Investment Company Act of 1940 (15 U.S.C. 80a-2(a)(19))
separately from the information for directors or nominees who are not or would not be
interested persons of the Fund. For example, when furnishing information in a table, you
should provide separate tables (or separate sections of a single table) for directors and
nominees who are or would be interested persons and for directors or nominees who are not or
would not be interested persons. When furnishing information in narrative form, indicate by
heading or otherwise the directors or nominees who are or would be interested persons and
the directors or nominees who are not or would not be interested persons.
4. No information need be given about any director
whose term of office as a director will not continue after the meeting to which the proxy
statement relates.
(1) Provide the information required by the following
table for each director, nominee for election as director, Officer of the Fund, person
chosen to become an Officer of the Fund, and, if the Fund has an advisory board, member of
the board. Explain in a footnote to the table any family relationship between the persons
listed.
| (1) | (2) | (3) | (4) | (5) | (6) |
|---|---|---|---|---|---|
| Name, Address, and Age | Position(s) Held with Fund | Term of Office and Length of Time Served | Principal Occupation(s) During Past 5 Years | Number of Portfolios in Fund Complex Overseen by Director or Nominee for Director | Other Directorships Held by Director or Nominee for Director |
Instructions to paragraph (b)(1). 1. For purposes of this paragraph, the term “family
relationship” means any relationship by blood, marriage, or adoption, not more remote than
first cousin.
2. No nominee or person chosen to become a director
or Officer who has not consented to act as such may be named in response to this Item. In
this regard, see Rule 14a-4(d) under the Exchange Act (§ 240.14a-4(d)).
3. If fewer nominees are named than the number fixed
by or pursuant to the governing instruments, state the reasons for this procedure and that
the proxies cannot be voted for a greater number of persons than the number of nominees
named.
4. For each director or nominee for election as
director who is or would be an “interested person” of the Fund within the meaning of section
2(a)(19) of the Investment Company Act of 1940 (15 U.S.C. 80a-2(a)(19)), describe, in a
footnote or otherwise, the relationship, events, or transactions by reason of which the
director or nominee is or would be an interested person.
5. State the principal business of any company listed
under column (4) unless the principal business is implicit in its name.
6. Include in column (5) the total number of separate
portfolios that a nominee for election as director would oversee if he were elected.
7. Indicate in column (6) directorships not included
in column (5) that are held by a director or nominee for election as director in any company
with a class of securities registered pursuant to section 12 of the Exchange Act (15 U.S.C.
78l), or subject to the requirements of section 15(d) of the Exchange Act (15
U.S.C. 78o(d)), or any company registered as an investment company under the Investment
Company Act of 1940, (15 U.S.C. 80a), as amended, and name the companies in which the
directorships are held. Where the other directorships include directorships overseeing two
or more portfolios in the same Fund Complex, identify the Fund Complex and provide the
number of portfolios overseen as a director in the Fund Complex rather than listing each
portfolio separately.
(2) For each individual listed in column (1) of the
table required by paragraph (b)(1) of this Item, except for any director or nominee for
election as director who is not or would not be an “interested person” of the Fund within
the meaning of section 2(a)(19) of the Investment Company Act of 1940 (15 U.S.C.
80a-2(a)(19)), describe any positions, including as an officer, employee, director, or
general partner, held with affiliated persons or principal underwriters of the Fund.
Instruction to paragraph (b)(2). When an individual holds the same position(s) with
two or more registered investment companies that are part of the same Fund Complex, identify
the Fund Complex and provide the number of registered investment companies for which the
position(s) are held rather than listing each registered investment company separately.
(3)(i) For each director or nominee for election as
director, briefly discuss the specific experience, qualifications, attributes, or skills
that led to the conclusion that the person should serve as a director for the Fund at the
time that the disclosure is made in light of the Fund's business and structure. If material,
this disclosure should cover more than the past five years, including information about the
person's particular areas of expertise or other relevant qualifications.
(ii) Describe briefly any arrangement or
understanding between any director, nominee for election as director, Officer, or person
chosen to become an Officer, and any other person(s) (naming the person(s)) pursuant to
which he was or is to be selected as a director, nominee, or Officer.
Instruction to paragraph (b)(3)(ii). Do not include arrangements or understandings
with directors or Officers acting solely in their capacities as such.
(4)(i) Unless disclosed in the table required by
paragraph (b)(1) of this Item, describe any positions, including as an officer, employee,
director, or general partner, held by any director or nominee for election as director, who
is not or would not be an “interested person” of the Fund within the meaning of section
2(a)(19) of the Investment Company Act of 1940 (15 U.S.C. 80a-2(a)(19)), or Immediate Family
Member of the director or nominee, during the past five years, with:
(A) The Fund;
(B) An investment company, or a person that would be
an investment company but for the exclusions provided by sections 3(c)(1) and 3(c)(7) of the
Investment Company Act of 1940 (15 U.S.C. 80a-3(c)(1) and (c)(7)), having the same
investment adviser, principal underwriter, or Sponsoring Insurance Company as the Fund or
having an investment adviser, principal underwriter, or Sponsoring Insurance Company that
directly or indirectly controls, is controlled by, or is under common control with an
investment adviser, principal underwriter, or Sponsoring Insurance Company of the Fund;
(C) An investment adviser, principal underwriter,
Sponsoring Insurance Company, or affiliated person of the Fund; or
(D) Any person directly or indirectly controlling,
controlled by, or under common control with an investment adviser, principal underwriter, or
Sponsoring Insurance Company of the Fund.
(ii) Unless disclosed in the table required by
paragraph (b)(1) of this Item or in response to paragraph (b)(4)(i) of this Item, indicate
any directorships held during the past five years by each director or nominee for election
as director in any company with a class of securities registered pursuant to section 12 of
the Exchange Act (15 U.S.C. 78l) or subject to the requirements of section 15(d) of
the Exchange Act (15 U.S.C. 78o(d)) or any company registered as an investment company under
the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.), as amended, and name
the companies in which the directorships were held.
Instruction to paragraph (b)(4). When an individual holds the same position(s) with
two or more portfolios that are part of the same Fund Complex, identify the Fund Complex and
provide the number of portfolios for which the position(s) are held rather than listing each
portfolio separately.
(5) For each director or nominee for election as
director, state the dollar range of equity securities beneficially owned by the director or
nominee as required by the following table:
(i) In the Fund; and
(ii) On an aggregate basis, in any registered
investment companies overseen or to be overseen by the director or nominee within the same
Family of Investment Companies as the Fund.
| (1) | (2) | (3) |
|---|---|---|
| Name of Director or Nominee | Dollar Range of Equity Securities in the Fund | Aggregate Dollar Range of Equity Securities in All Funds Overseen or to be Overseen by Director or Nominee in Family of Investment Companies |
Instructions to paragraph (b)(5). 1. Information should be provided as of the most
recent practicable date. Specify the valuation date by footnote or otherwise.
2. Determine “beneficial ownership” in accordance
with rule 16a-1(a)(2) under the Exchange Act (§ 240.16a-1(a)(2)).
3. If action is to be taken with respect to more than
one Fund, disclose in column (2) the dollar range of equity securities beneficially owned by
a director or nominee in each such Fund overseen or to be overseen by the director or
nominee.
4. In disclosing the dollar range of equity
securities beneficially owned by a director or nominee in columns (2) and (3), use the
following ranges: none, $1-$10,000, $10,001-$50,000, $50,001-$100,000, or over $100,000.
(6) For each director or nominee for election as
director who is not or would not be an “interested person” of the Fund within the meaning of
section 2(a)(19) of the Investment Company Act of 1940 (15 U.S.C. 80a-2(a)(19), and his
Immediate Family Members, furnish the information required by the following table as to each
class of securities owned beneficially or of record in:
(i) An investment adviser, principal underwriter, or
Sponsoring Insurance Company of the Fund; or
(ii) A person (other than a registered investment
company) directly or indirectly controlling, controlled by, or under common control with an
investment adviser, principal underwriter, or Sponsoring Insurance Company of the Fund:
| (1) | (2) | (3) | (4) | (5) | (6) |
|---|---|---|---|---|---|
| Name of Director or Nominee | Name of Owners and Relationships to Director or Nominee | Company | Title of Class | Value of Securities | Percent of Class |
Instructions to paragraph (b)(6). 1. Information should be provided as of the most
recent practicable date. Specify the valuation date by footnote or otherwise.
2. An individual is a “beneficial owner” of a
security if he is a “beneficial owner” under either rule 13d-3 or rule 16a-1(a)(2) under the
Exchange Act (§§ 240.13d-3 or 240.16a-1(a)(2)).
3. Identify the company in which the director,
nominee, or Immediate Family Member of the director or nominee owns securities in column
(3). When the company is a person directly or indirectly controlling, controlled by, or
under common control with an investment adviser, principal underwriter, or Sponsoring
Insurance Company, describe the company's relationship with the investment adviser,
principal underwriter, or Sponsoring Insurance Company.
4. Provide the information required by columns (5)
and (6) on an aggregate basis for each director (or nominee) and his Immediate Family
Members.
(7) Unless disclosed in response to paragraph (b)(6)
of this Item, describe any direct or indirect interest, the value of which exceeds $120,000,
of each director or nominee for election as director who is not or would not be an
“interested person” of the Fund within the meaning of section 2(a)(19) of the Investment
Company Act of 1940 (15 U.S.C. 80a-2(a)(19)), or Immediate Family Member of the director or
nominee, during the past five years, in:
(i) An investment adviser, principal underwriter, or
Sponsoring Insurance Company of the Fund; or
(ii) A person (other than a registered investment
company) directly or indirectly controlling, controlled by, or under common control with an
investment adviser, principal underwriter, or Sponsoring Insurance Company of the Fund.
Instructions to paragraph (b)(7). 1. A director, nominee, or Immediate Family Member
has an interest in a company if he is a party to a contract, arrangement, or understanding
with respect to any securities of, or interest in, the company.
2. The interest of the director (or nominee) and the
interests of his Immediate Family Members should be aggregated in determining whether the
value exceeds $120,000.
(8) Describe briefly any material interest, direct or
indirect, of any director or nominee for election as director who is not or would not be an
“interested person” of the Fund within the meaning of section 2(a)(19) of the Investment
Company Act of 1940 (15 U.S.C. 80a-2(a)(19)), or Immediate Family Member of the director or
nominee, in any transaction, or series of similar transactions, since the beginning of the
last two completed fiscal years of the Fund, or in any currently proposed transaction, or
series of similar transactions, in which the amount involved exceeds $120,000 and to which
any of the following persons was or is to be a party:
(i) The Fund;
(ii) An Officer of the Fund;
(iii) An investment company, or a person that would
be an investment company but for the exclusions provided by sections 3(c)(1) and 3(c)(7) of
the Investment Company Act of 1940 (15 U.S.C. 80a-3(c)(1) and (c)(7)), having the same
investment adviser, principal underwriter, or Sponsoring Insurance Company as the Fund or
having an investment adviser, principal underwriter, or Sponsoring Insurance Company that
directly or indirectly controls, is controlled by, or is under common control with an
investment adviser, principal underwriter, or Sponsoring Insurance Company of the Fund;
(iv) An Officer of an investment company, or a person
that would be an investment company but for the exclusions provided by sections 3(c)(1) and
3(c)(7) of the Investment Company Act of 1940 (15 U.S.C. 80a-3(c)(1) and (c)(7)), having the
same investment adviser, principal underwriter, or Sponsoring Insurance Company as the Fund
or having an investment adviser, principal underwriter, or Sponsoring Insurance Company that
directly or indirectly controls, is controlled by, or is under common control with an
investment adviser, principal underwriter, or Sponsoring Insurance Company of the Fund;
(v) An investment adviser, principal underwriter, or
Sponsoring Insurance Company of the Fund;
(vi) An Officer of an investment adviser, principal
underwriter, or Sponsoring Insurance Company of the Fund;
(vii) A person directly or indirectly controlling,
controlled by, or under common control with an investment adviser, principal underwriter, or
Sponsoring Insurance Company of the Fund; or
(viii) An Officer of a person directly or indirectly
controlling, controlled by, or under common control with an investment adviser, principal
underwriter, or Sponsoring Insurance Company of the Fund.
Instructions to paragraph (b)(8). 1. Include the name of each director, nominee, or
Immediate Family Member whose interest in any transaction or series of similar transactions
is described and the nature of the circumstances by reason of which the interest is required
to be described.
2. State the nature of the interest, the approximate
dollar amount involved in the transaction, and, where practicable, the approximate dollar
amount of the interest.
3. In computing the amount involved in the
transaction or series of similar transactions, include all periodic payments in the case of
any lease or other agreement providing for periodic payments.
4. Compute the amount of the interest of any
director, nominee, or Immediate Family Member of the director or nominee without regard to
the amount of profit or loss involved in the transaction(s).
5. As to any transaction involving the purchase or
sale of assets, state the cost of the assets to the purchaser and, if acquired by the seller
within two years prior to the transaction, the cost to the seller. Describe the method used
in determining the purchase or sale price and the name of the person making the
determination.
6. If the proxy statement relates to multiple
portfolios of a series Fund with different fiscal years, then, in determining the date that
is the beginning of the last two completed fiscal years of the Fund, use the earliest date
of any series covered by the proxy statement.
7. Disclose indirect, as well as direct, material
interests in transactions. A person who has a position or relationship with, or interest in,
a company that engages in a transaction with one of the persons listed in paragraphs
(b)(8)(i) through (b)(8)(viii) of this Item may have an indirect interest in the transaction
by reason of the position, relationship, or interest. The interest in the transaction,
however, will not be deemed “material” within the meaning of paragraph (b)(8) of this Item
where the interest of the director, nominee, or Immediate Family Member arises solely from
the holding of an equity interest (including a limited partnership interest, but excluding a
general partnership interest) or a creditor interest in a company that is a party to the
transaction with one of the persons specified in paragraphs (b)(8)(i) through (b)(8)(viii)
of this Item, and the transaction is not material to the company.
8. The materiality of any interest is to be
determined on the basis of the significance of the information to investors in light of all
the circumstances of the particular case. The importance of the interest to the person
having the interest, the relationship of the parties to the transaction with each other, and
the amount involved in the transaction are among the factors to be considered in determining
the significance of the information to investors.
9. No information need be given as to any transaction
where the interest of the director, nominee, or Immediate Family Member arises solely from
the ownership of securities of a person specified in paragraphs (b)(8)(i) through
(b)(8)(viii) of this Item and the director, nominee, or Immediate Family Member receives no
extra or special benefit not shared on a pro rata basis by all holders of the class of
securities.
10. Transactions include loans, lines of credit, and
other indebtedness. For indebtedness, indicate the largest aggregate amount of indebtedness
outstanding at any time during the period, the nature of the indebtedness and the
transaction in which it was incurred, the amount outstanding as of the latest practicable
date, and the rate of interest paid or charged.
11. No information need be given as to any routine,
retail transaction. For example, the Fund need not disclose that a director has a credit
card, bank or brokerage account, residential mortgage, or insurance policy with a person
specified in paragraphs (b)(8)(i) through (b)(8)(viii) of this Item unless the director is
accorded special treatment.
(9) Describe briefly any direct or indirect
relationship, in which the amount involved exceeds $120,000, of any director or nominee for
election as director who is not or would not be an “interested person” of the Fund within
the meaning of section 2(a)(19) of the Investment Company Act of 1940 (15 U.S.C.
80a-2(a)(19)), or Immediate Family Member of the director or nominee, that exists, or has
existed at any time since the beginning of the last two completed fiscal years of the Fund,
or is currently proposed, with any of the persons specified in paragraphs (b)(8)(i) through
(b)(8)(viii) of this Item. Relationships include:
(i) Payments for property or services to or from any
person specified in paragraphs (b)(8)(i) through (b)(8)(viii) of this Item;
(ii) Provision of legal services to any person
specified in paragraphs (b)(8)(i) through (b)(8)(viii) of this Item;
(iii) Provision of investment banking services to any
person specified in paragraphs (b)(8)(i) through (b)(8)(viii) of this Item, other than as a
participating underwriter in a syndicate; and
(iv) Any consulting or other relationship that is
substantially similar in nature and scope to the relationships listed in paragraphs
(b)(9)(i) through (b)(9)(iii) of this Item.
Instructions to paragraph (b)(9). 1. Include the name of each director, nominee, or
Immediate Family Member whose relationship is described and the nature of the circumstances
by reason of which the relationship is required to be described.
2. State the nature of the relationship and the
amount of business conducted between the director, nominee, or Immediate Family Member and
the person specified in paragraphs (b)(8)(i) through (b)(8)(viii) of this Item as a result
of the relationship since the beginning of the last two completed fiscal years of the Fund
or proposed to be done during the Fund's current fiscal year.
3. In computing the amount involved in a
relationship, include all periodic payments in the case of any agreement providing for
periodic payments.
4. If the proxy statement relates to multiple
portfolios of a series Fund with different fiscal years, then, in determining the date that
is the beginning of the last two completed fiscal years of the Fund, use the earliest date
of any series covered by the proxy statement.
5. Disclose indirect, as well as direct,
relationships. A person who has a position or relationship with, or interest in, a company
that has a relationship with one of the persons listed in paragraphs (b)(8)(i) through
(b)(8)(viii) of this Item may have an indirect relationship by reason of the position,
relationship, or interest.
6. In determining whether the amount involved in a
relationship exceeds $120,000, amounts involved in a relationship of the director (or
nominee) should be aggregated with those of his Immediate Family Members.
7. In the case of an indirect interest, identify the
company with which a person specified in paragraphs (b)(8)(i) through (b)(8)(viii) of this
Item has a relationship; the name of the director, nominee, or Immediate Family Member
affiliated with the company and the nature of the affiliation; and the amount of business
conducted between the company and the person specified in paragraphs (b)(8)(i) through
(b)(8)(viii) of this Item since the beginning of the last two completed fiscal years of the
Fund or proposed to be done during the Fund's current fiscal year.
8. In calculating payments for property and services
for purposes of paragraph (b)(9)(i) of this Item, the following may be excluded:
A. Payments where the transaction involves the
rendering of services as a common contract carrier, or public utility, at rates or charges
fixed in conformity with law or governmental authority; or
B. Payments that arise solely from the ownership of
securities of a person specified in paragraphs (b)(8)(i) through (b)(8)(viii) of this Item
and no extra or special benefit not shared on a pro rata basis by all holders of the class
of securities is received.
9. No information need be given as to any routine,
retail relationship. For example, the Fund need not disclose that a director has a credit
card, bank or brokerage account, residential mortgage, or insurance policy with a person
specified in paragraphs (b)(8)(i) through (b)(8)(viii) of this Item unless the director is
accorded special treatment.
(10) If an Officer of an investment adviser,
principal underwriter, or Sponsoring Insurance Company of the Fund, or an Officer of a
person directly or indirectly controlling, controlled by, or under common control with an
investment adviser, principal underwriter, or Sponsoring Insurance Company of the Fund,
serves, or has served since the beginning of the last two completed fiscal years of the
Fund, on the board of directors of a company where a director of the Fund or nominee for
election as director who is not or would not be an “interested person” of the Fund within
the meaning of section 2(a)(19) of the Investment Company Act of 1940 (15 U.S.C.
80a-2(a)(19)), or Immediate Family Member of the director or nominee, is, or was since the
beginning of the last two completed fiscal years of the Fund, an Officer, identify:
(i) The company;
(ii) The individual who serves or has served as a
director of the company and the period of service as director;
(iii) The investment adviser, principal underwriter,
or Sponsoring Insurance Company or person controlling, controlled by, or under common
control with the investment adviser, principal underwriter, or Sponsoring Insurance Company
where the individual named in paragraph (b)(10)(ii) of this Item holds or held office and
the office held; and
(iv) The director of the Fund, nominee for election
as director, or Immediate Family Member who is or was an Officer of the company; the office
held; and the period of holding the office.
Instruction to paragraph (b)(10). If the proxy statement relates to multiple
portfolios of a series Fund with different fiscal years, then, in determining the date that
is the beginning of the last two completed fiscal years of the Fund, use the earliest date
of any series covered by the proxy statement.
(11) Provide in tabular form, to the extent
practicable, the information required by Items 401(f) and (g), 404(a), 405, and 407(h) of
Regulation S-K (§§ 229.401(f) and (g), 229.404(a), 229.405, and 229.407(h) of this
chapter).
Instruction to paragraph (b)(11). Information provided under paragraph (b)(8) of this
Item 22 is deemed to satisfy the requirements of Item 404(a) of Regulation S-K for
information about directors, nominees for election as directors, and Immediate Family
Members of directors and nominees, and need not be provided under this paragraph
(b)(11).
(12) Describe briefly any material pending legal
proceedings, other than ordinary routine litigation incidental to the Fund's business, to
which any director or nominee for director or affiliated person of such director or nominee
is a party adverse to the Fund or any of its affiliated persons or has a material interest
adverse to the Fund or any of its affiliated persons. Include the name of the court where
the case is pending, the date instituted, the principal parties, a description of the
factual basis alleged to underlie the proceeding, and the relief sought.
(13) In the case of a Fund that is an investment
company registered under the Investment Company Act of 1940 (15 U.S.C. 80a), for all
directors, and for each of the three highest-paid Officers that have aggregate compensation
from the Fund for the most recently completed fiscal year in excess of $60,000 (“Compensated
Persons”):
(i) Furnish the information required by the following
table for the last fiscal year:
| (1) | (2) | (3) | (4) | (5) |
|---|---|---|---|---|
| Name of Person, Position | Aggregate Compensation From Fund | Pension or Retirement Benefits Accrued as Part of Fund Expenses | Estimated Annual Benefits Upon Retirement | Total Compensation From Fund and Complex Paid to Directors |
Instructions to paragraph (b)(13)(i). 1. For column (1), indicate, if necessary, the
capacity in which the remuneration is received. For Compensated Persons that are directors
of the Fund, compensation is amounts received for service as a director.
2. If the Fund has not completed its first full year
since its organization, furnish the information for the current fiscal year, estimating
future payments that would be made pursuant to an existing agreement or understanding.
Disclose in a footnote to the Compensation Table the period for which the information is
furnished.
3. Include in column (2) amounts deferred at the
election of the Compensated Person, whether pursuant to a plan established under Section
401(k) of the Internal Revenue Code (26 U.S.C. 401(k)) or otherwise, for the fiscal year in
which earned. Disclose in a footnote to the Compensation Table the total amount of deferred
compensation (including interest) payable to or accrued for any Compensated Person.
4. Include in columns (3) and (4) all pension or
retirement benefits proposed to be paid under any existing plan in the event of retirement
at normal retirement date, directly or indirectly, by the Fund or any of its Subsidiaries,
or by other companies in the Fund Complex. Omit column (4) where retirement benefits are not
determinable.
5. For any defined benefit or actuarial plan under
which benefits are determined primarily by final compensation (or average final
compensation) and years of service, provide the information required in column (4) in a
separate table showing estimated annual benefits payable upon retirement (including amounts
attributable to any defined benefit supplementary or excess pension award plans) in
specified compensation and years of service classifications. Also provide the estimated
credited years of service for each Compensated Person.
6. Include in column (5) only aggregate compensation
paid to a director for service on the board and other boards of investment companies in a
Fund Complex specifying the number of such other investment companies.
(ii) Describe briefly the material provisions of any
pension, retirement, or other plan or any arrangement other than fee arrangements disclosed
in paragraph (b)(13)(i) of this Item pursuant to which Compensated Persons are or may be
compensated for any services provided, including amounts paid, if any, to the Compensated
Person under any such arrangements during the most recently completed fiscal year.
Specifically include the criteria used to determine amounts payable under any plan, the
length of service or vesting period required by the plan, the retirement age or other event
that gives rise to payments under the plan, and whether the payment of benefits is secured
or funded by the Fund.
(14) State whether or not the Fund has a separately
designated audit committee established in accordance with section 3(a)(58)(A) of the Act (15
U.S.C. 78c(a)(58)(A)). If the entire board of directors is acting as the Fund's audit
committee as specified in section 3(a)(58)(B) of the Act (15 U.S.C. 78c(a)(58)(B)), so
state. If applicable, provide the disclosure required by § 240.10A-3(d) regarding an
exemption from the listing standards for audit committees. Identify the other standing
committees of the Fund's board of directors, and provide the following information about
each committee, including any separately designated audit committee and any nominating
committee:
(i) A concise statement of the functions of the
committee;
(ii) The members of the committee and, in the case of
a nominating committee, whether or not the members of the committee are “interested persons”
of the Fund as defined in section 2(a)(19) of the Investment Company Act of 1940 (15 U.S.C.
80a-2(a)(19)); and
(iii) The number of committee meetings held during
the last fiscal year.
Instruction to paragraph (b)(14): For purposes of Item 22(b)(14), the term
“nominating committee” refers not only to nominating committees and committees performing
similar functions, but also to groups of directors fulfilling the role of a nominating
committee, including the entire board of directors.
(15)(i) Provide the information (and in the format)
required by Items 407(b)(1), (b)(2) and (f) of Regulation S-K (§ 229.407(b)(1), (b)(2) and
(f) of this chapter); and
(ii) Provide the following regarding the requirements
for the director nomination process:
(A) The information (and in the format) required by
Items 407(c)(1) and (c)(2) of Regulation S-K (§ 229.407(c)(1) and (c)(2) of this chapter);
and
(B) If the Fund is a listed issuer (as defined in §
240.10A-3 of this chapter) whose securities are listed on a national securities exchange
registered pursuant to section 6(a) of the Act (15 U.S.C. 78f(a)) or in an automated
inter-dealer quotation system of a national securities association registered pursuant to
section 15A of the Act (15 U.S.C. 78o-3(a)) that has independence requirements for
nominating committee members, identify each director that is a member of the nominating
committee that is not independent under the independence standards described in this
paragraph. In determining whether the nominating committee members are independent, use the
Fund's definition of independence that it uses for determining if the members of the
nominating committee are independent in compliance with the independence standards
applicable for the members of the nominating committee in the listing standards applicable
to the Fund. If the Fund does not have independence standards for the nominating committee,
use the independence standards for the nominating committee in the listing standards
applicable to the Fund.
Instruction to paragraph (b)(15)(ii)(B).
If the national securities exchange or inter-dealer
quotation system on which the Fund's securities are listed has exemptions to the
independence requirements for nominating committee members upon which the Fund relied,
disclose the exemption relied upon and explain the basis for the Fund's conclusion that such
exemption is applicable.
(16) In the case of a Fund that is a closed-end
investment company:
(i) Provide the information (and in the format)
required by Item 407(d)(1), (d)(2) and (d)(3) of Regulation S-K (§ 229.407(d)(1), (d)(2) and
(d)(3) of this chapter); and
(ii) Identify each director that is a member of the
Fund's audit committee that is not independent under the independence standards described in
this paragraph. If the Fund does not have a separately designated audit committee, or
committee performing similar functions, the Fund must provide the disclosure with respect to
all members of its board of directors.
(A) If the Fund is a listed issuer (as defined in §
240.10A-3 of this chapter) whose securities are listed on a national securities exchange
registered pursuant to section 6(a) of the Act (15 U.S.C. 78f(a)) or in an automated
inter-dealer quotation system of a national securities association registered pursuant to
section 15A of the Act (15 U.S.C. 78o-3(a)) that has independence requirements for audit
committee members, in determining whether the audit committee members are independent, use
the Fund's definition of independence that it uses for determining if the members of the
audit committee are independent in compliance with the independence standards applicable for
the members of the audit committee in the listing standards applicable to the Fund. If the
Fund does not have independence standards for the audit committee, use the independence
standards for the audit committee in the listing standards applicable to the Fund.
(B) If the Fund is not a listed issuer whose
securities are listed on a national securities exchange registered pursuant to section 6(a)
of the Act (15 U.S.C. 78f(a)) or in an automated inter-dealer quotation system of a national
securities association registered pursuant to section 15A of the Act (15 U.S.C. 78o-3(a)),
in determining whether the audit committee members are independent, use a definition of
independence of a national securities exchange registered pursuant to section 6(a) of the
Act (15 U.S.C. 78f(a)) or an automated inter-dealer quotation system of a national
securities association registered pursuant to section 15A of the Act (15 U.S.C. 780-3(a))
which has requirements that a majority of the board of directors be independent and that has
been approved by the Commission, and state which definition is used. Whatever such
definition the Fund chooses, it must use the same definition with respect to all directors
and nominees for director. If the national securities exchange or national securities
association whose standards are used has independence standards for the members of the audit
committee, use those specific standards.
Instruction to paragraph (b)(16)(ii).
If the national securities exchange or inter-dealer
quotation system on which the Fund's securities are listed has exemptions to the
independence requirements for nominating committee members upon which the Fund relied,
disclose the exemption relied upon and explain the basis for the Fund's conclusion that such
exemption is applicable. The same disclosure should be provided if the Fund is not a listed
issuer and the national securities exchange or inter-dealer quotation system selected by the
Fund has exemptions that are applicable to the Fund.
(17) In the case of a Fund that is an investment
company registered under the Investment Company Act of 1940 (15 U.S.C. 80a), if a director
has resigned or declined to stand for re-election to the board of directors since the date
of the last annual meeting of security holders because of a disagreement with the registrant
on any matter relating to the registrant's operations, policies or practices, and if the
director has furnished the registrant with a letter describing such disagreement and
requesting that the matter be disclosed, the registrant shall state the date of resignation
or declination to stand for re-election and summarize the director's description of the
disagreement. If the registrant believes that the description provided by the director is
incorrect or incomplete, it may include a brief statement presenting its view of the
disagreement.
(18) [Reserved]
(19) If a Fund is required to include a shareholder
nominee or nominees submitted to the Fund for inclusion in the Fund's proxy materials
pursuant to a procedure set forth under applicable state or foreign law or the Fund's
governing documents providing for the inclusion of shareholder director nominees in the
Fund's proxy materials, the Fund must include in its proxy statement the disclosure required
from the nominating shareholder or nominating shareholder group under Item 6 of §
240.14n-101 with regard to the nominee or nominees and the nominating shareholder or
nominating shareholder group.
Instruction to paragraph (b)(19). The information disclosed pursuant to paragraph
(b)(19) of this Item will not be deemed incorporated by reference into any filing under the
Securities Act of 1933 (15 U.S.C. 77a et seq.), the Securities Exchange Act of 1934
(15 U.S.C. 78a et seq.), or the Investment Company Act of 1940 (15 U.S.C. 80a-1 et
seq.), except to the extent that the Fund specifically incorporates that information
by reference.
(20) In the case of a Fund that is an investment company registered
under the Investment Company Act of 1940 (15 U.S.C. 80a) that is required to develop and
implement a policy regarding the recovery of erroneously awarded compensation pursuant to
§ 240.10D-1(b)(1), if at any time during the last completed fiscal year the Fund was
required to prepare an accounting restatement that required recovery of erroneously awarded
compensation pursuant to the Fund's compensation recovery policy required by the listing
standards adopted pursuant to 240.10D-1, or there was an outstanding balance as of the end
of the last completed fiscal year of erroneously awarded compensation to be recovered from
the application of the policy to a prior restatement, the Fund must provide the information
required by Item 18 of Form N-CSR, as applicable.
(c) Approval of investment advisory contract.
If action is to be taken with respect to an investment advisory contract, include the
following information in the proxy statement.
Instruction. Furnish information with respect to a prospective investment adviser to
the extent applicable (including the name and address of the prospective investment
adviser).
(1) With respect to the existing investment advisory
contract:
(i) State the date of the contract and the date on
which it was last submitted to a vote of security holders of the Fund, including the purpose
of such submission;
(ii) Briefly describe the terms of the contract,
including the rate of compensation of the investment adviser;
(iii) State the aggregate amount of the investment
adviser's fee and the amount and purpose of any other material payments by the Fund to the
investment adviser, or any affiliated person of the investment adviser, during the last
fiscal year of the Fund;
(iv) If any person is acting as an investment adviser
of the Fund other than pursuant to a written contract that has been approved by the security
holders of the company, identify the person and describe the nature of the services and
arrangements;
(v) Describe any action taken with respect to the
investment advisory contract since the beginning of the Fund's last fiscal year by the board
of directors of the Fund (unless described in response to paragraph (c)(1)(vi)) of this Item
22); and
(vi) If an investment advisory contract was
terminated or not renewed for any reason, state the date of such termination or non-renewal,
identify the parties involved, and describe the circumstances of such termination or
non-renewal.
(2) State the name, address and principal occupation
of the principal executive officer and each director or general partner of the investment
adviser.
Instruction. If the investment adviser is a partnership with more than ten general
partners, name:
(i) The general partners with the five largest
economic interests in the partnership, and, if different, those general partners comprising
the management or executive committee of the partnership or exercising similar
authority;
(ii) The general partners with significant management
responsibilities relating to the fund.
(3) State the names and addresses of all Parents of
the investment adviser and show the basis of control of the investment adviser and each
Parent by its immediate Parent.
Instructions. 1. If any person named is a corporation, include the percentage of its
voting securities owned by its immediate Parent.
2. If any person named is a partnership, name the
general partners having the three largest partnership interests (computed by whatever method
is appropriate in the particular case).
(4) If the investment adviser is a corporation and
if, to the knowledge of the persons making the solicitation or the persons on whose behalf
the solicitation is made, any person not named in answer to paragraph (c)(3) of this Item 22
owns, of record or beneficially, ten percent or more of the outstanding voting securities of
the investment adviser, indicate that fact and state the name and address of each such
person.
(5) Name each officer or director of the Fund who is
an officer, employee, director, general partner or shareholder of the investment adviser. As
to any officer or director who is not a director or general partner of the investment
adviser and who owns securities or has any other material direct or indirect interest in the
investment adviser or any other person controlling, controlled by or under common control
with the investment adviser, describe the nature of such interest.
(6) Describe briefly and state the approximate amount
of, where practicable, any material interest, direct or indirect, of any director of the
Fund in any material transactions since the beginning of the most recently completed fiscal
year, or in any material proposed transactions, to which the investment adviser of the Fund,
any Parent or Subsidiary of the investment adviser (other than another Fund), or any
Subsidiary of the Parent of such entities was or is to be a party.
Instructions. 1. Include the name of each person whose interest in any transaction is
described and the nature of the relationship by reason of which such interest is required to
be described. Where it is not practicable to state the approximate amount of the interest,
indicate the approximate amount involved in the transaction.
2. As to any transaction involving the purchase or
sale of assets by or to the investment adviser, state the cost of the assets to the
purchaser and the cost thereof to the seller if acquired by the seller within two years
prior to the transaction.
3. If the interest of any person arises from the
position of the person as a partner in a partnership, the proportionate interest of such
person in transactions to which the partnership is a party need not be set forth, but state
the amount involved in the transaction with the partnership.
4. No information need be given in response to this
paragraph (c)(6) of Item 22 with respect to any transaction that is not related to the
business or operations of the Fund and to which neither the Fund nor any of its Parents or
Subsidiaries is a party.
(7) Disclose any financial condition of the
investment adviser that is reasonably likely to impair the financial ability of the adviser
to fulfill its commitment to the fund under the proposed investment advisory contract.
(8) Describe the nature of the action to be taken on
the investment advisory contract and the reasons therefor, the terms of the contract to be
acted upon, and, if the action is an amendment to, or a replacement of, an investment
advisory contract, the material differences between the current and proposed contract.
(9) If a change in the investment advisory fee is
sought, state:
(i) The aggregate amount of the investment adviser's
fee during the last year;
(ii) The amount that the adviser would have received
had the proposed fee been in effect; and
(iii) The difference between the aggregate amounts
stated in response to paragraphs (i) and (ii) of this item (c)(9) as a percentage of the
amount stated in response to paragraph (i) of this item (c)(9).
(10) If the investment adviser acts as such with
respect to any other Fund having a similar investment objective, identify and state the size
of such other Fund and the rate of the investment adviser's compensation. Also indicate for
any Fund identified whether the investment adviser has waived, reduced, or otherwise agreed
to reduce its compensation under any applicable contract.
Instruction. Furnish the information in response to this paragraph (c)(10) of Item 22
in tabular form.
(11) Discuss in reasonable detail the material
factors and the conclusions with respect thereto that form the basis for the recommendation
of the board of directors that the shareholders approve an investment advisory contract.
Include the following in the discussion:
(i) Factors relating to both the board's selection of
the investment adviser and approval of the advisory fee and any other amounts to be paid by
the Fund under the contract. This would include, but not be limited to, a discussion of the
nature, extent, and quality of the services to be provided by the investment adviser; the
investment performance of the Fund and the investment adviser; the costs of the services to
be provided and profits to be realized by the investment adviser and its affiliates from the
relationship with the Fund; the extent to which economies of scale would be realized as the
Fund grows; and whether fee levels reflect these economies of scale for the benefit of Fund
investors. Also indicate in the discussion whether the board relied upon comparisons of the
services to be rendered and the amounts to be paid under the contract with those under other
investment advisory contracts, such as contracts of the same and other investment advisers
with other registered investment companies or other types of clients (e.g., pension funds
and other institutional investors). If the board relied upon such comparisons, describe the
comparisons that were relied on and how they assisted the board in determining to recommend
that the shareholders approve the advisory contract; and
(ii) If applicable, any benefits derived or to be
derived by the investment adviser from the relationship with the Fund such as soft dollar
arrangements by which brokers provide research to the Fund or its investment adviser in
return for allocating Fund brokerage.
Instructions. 1. Conclusory statements or a list of factors will not be considered
sufficient disclosure. Relate the factors to the specific circumstances of the Fund and the
investment advisory contract for which approval is sought and state how the board evaluated
each factor. For example, it is not sufficient to state that the board considered the amount
of the investment advisory fee without stating what the board concluded about the amount of
the fee and how that affected its determination to recommend approval of the contract.
2. If any factor enumerated in paragraph (c)(11)(i)
of this Item 22 is not relevant to the board's evaluation of the investment advisory
contract for which approval is sought, note this and explain the reasons why that factor is
not relevant.
(12) Describe any arrangement or understanding made
in connection with the proposed investment advisory contract with respect to the composition
of the board of directors of the Fund or the investment adviser or with respect to the
selection or appointment of any person to any office with either such company.
(13) For the most recently completed fiscal year,
state:
(i) The aggregate amount of commissions paid to any
Affiliated Broker; and
(ii) The percentage of the Fund's aggregate brokerage
commissions paid to any such Affiliated Broker.
Instruction. Identify each Affiliated Broker and the relationships that cause the
broker to be an Affiliated Broker.
(14) Disclose the amount of any fees paid by the Fund
to the investment adviser, its affiliated persons or any affiliated person of such person
during the most recent fiscal year for services provided to the Fund (other than under the
investment advisory contract or for brokerage commissions). State whether these services
will continue to be provided after the investment advisory contract is approved.
(d) Approval of distribution plan. If action
is to be taken with respect to a Distribution Plan, include the following information in the
proxy statement.
Instruction. Furnish information on a prospective basis to the extent applicable.
(1) Describe the nature of the action to be taken on
the Distribution Plan and the reason therefor, the terms of the Distribution Plan to be
acted upon, and, if the action is an amendment to, or a replacement of, a Distribution Plan,
the material differences between the current and proposed Distribution Plan.
(2) If the Fund has a Distribution Plan in
effect:
(i) Provide the date that the Distribution Plan was
adopted and the date of the last amendment, if any;
(ii) Disclose the persons to whom payments may be
made under the Distribution Plan, the rate of the distribution fee and the purposes for
which such fee may be used;
(iii) Disclose the amount of distribution fees paid
by the Fund pursuant to the plan during its most recent fiscal year, both in the aggregate
and as a percentage of the Fund's average net assets during the period;
(iv) Disclose the name of, and the amount of any
payments made under the Distribution Plan by the Fund during its most recent fiscal year to,
any person who is an affiliated person of the Fund, its investment adviser, principal
underwriter, or Administrator, an affiliated person of such person, or a person that during
the most recent fiscal year received 10% or more of the aggregate amount paid under the
Distribution Plan by the Fund;
(v) Describe any action taken with respect to the
Distribution Plan since the beginning of the Fund's most recent fiscal year by the board of
directors of the Fund; and
(vi) If a Distribution Plan was or is to be
terminated or not renewed for any reason, state the date or prospective date of such
termination or non-renewal, identify the parties involved, and describe the circumstances of
such termination or non-renewal.
(3) Describe briefly and state the approximate amount
of, where practicable, any material interest, direct or indirect, of any director or nominee
for election as a director of the Fund in any material transactions since the beginning of
the most recently completed fiscal year, or in any material proposed transactions, to which
any person identified in response to Item 22(d)(2)(iv) was or is to be a party.
Instructions. 1. Include the name of each person whose interest in any transaction is
described and the nature of the relationship by reason of which such interest is required to
be described. Where it is not practicable to state the approximate amount of the interest,
indicate the approximate amount involved in the transaction.
2. As to any transaction involving the purchase or
sale of assets, state the cost of the assets to the purchaser and the cost thereof to the
seller if acquired by the seller within two years prior to the transaction.
3. If the interest of any person arises from the
position of the person as a partner in a partnership, the proportionate interest of such
person in transactions to which the partnership is a party need not be set forth but state
the amount involved in the transaction with the partnership.
4. No information need be given in response to this
paragraph (d)(3) of Item 22 with respect to any transaction that is not related to the
business or operations of the Fund and to which neither the Fund nor any of its Parents or
Subsidiaries is a party.
(4) Discuss in reasonable detail the material factors
and the conclusions with respect thereto which form the basis for the conclusion of the
board of directors that there is a reasonable likelihood that the proposed Distribution Plan
(or amendment thereto) will benefit the Fund and its shareholders.
Instruction. Conclusory statements or a list of factors will not be considered
sufficient disclosure.
Item 23. Delivery of documents to security holders sharing an address. If one annual
report to security holders, proxy statement, or Notice of Internet Availability of Proxy
Materials is being delivered to two or more security holders who share an address in
accordance with § 240.14a-3(e)(1), furnish the following information:
(a) State that only one annual report to security
holders, proxy statement, or Notice of Internet Availability of Proxy Materials, as
applicable, is being delivered to multiple security holders sharing an address unless the
registrant has received contrary instructions from one or more of the security holders;
(b) Undertake to deliver promptly upon written or
oral request a separate copy of the annual report to security holders, proxy statement, or
Notice of Internet Availability of Proxy Materials, as applicable, to a security holder at a
shared address to which a single copy of the documents was delivered and provide
instructions as to how a security holder can notify the registrant that the security holder
wishes to receive a separate copy of an annual report to security holders, proxy statement,
or Notice of Internet Availability of Proxy Materials, as applicable;
(c) Provide the phone number and mailing address to
which a security holder can direct a notification to the registrant that the security holder
wishes to receive a separate annual report to security holders, proxy statement, or Notice
of Internet Availability of Proxy Materials, as applicable, in the future; and
(d) Provide instructions how security holders sharing
an address can request delivery of a single copy of annual reports to security holders,
proxy statements, or Notices of Internet Availability of Proxy Materials if they are
receiving multiple copies of annual reports to security holders, proxy statements, or
Notices of Internet Availability of Proxy Materials.
Item 24. Shareholder Approval of Executive Compensation. Registrants required to
provide any of the separate shareholder votes pursuant to § 240.14a-21 of this chapter shall
disclose that they are providing each such vote as required pursuant to section 14A of the
Securities Exchange Act (15 U.S.C. 78n-1), briefly explain the general effect of each vote,
such as whether each such vote is non-binding, and, when applicable, disclose the current
frequency of shareholder advisory votes on executive compensation required by Rule 14a-21(a)
and when the next such shareholder advisory vote will occur.
Item 25. Exhibits. Provide each of the following in an exhibit to
this Schedule 14A:
(a) The legal opinion required to be filed by Item 402(u)(4)(i) of
Regulation S-K (17 CFR 229.402(u));
(b) If the transaction is a de-SPAC transaction, as defined in § 229.1601(a) (Item 1601(a)
of Regulation S-K), all reports, opinions, or appraisals required to be filed or included by
§ 229.1607(c) (Item 1607(c) of Regulation S-K); and
(c) If a fee is required, the title of each class of securities to which
the transaction applies, aggregate number of securities to which the transaction applies,
per unit price or other underlying value of the transaction computed pursuant to § 240.0-11,
proposed maximum aggregate value of the transaction, fee rate, amount of filing fee and, as
applicable, information relating to reliance on § 240.0-11(a)(2) in the tabular form
indicated.
Registered funds that must pay registration fees using Form 24F-2 (§ 274.24) are not
required to respond to this Item.
Calculation of Filing Fee Tables
Table 1—Transaction Valuation
| Proposed maximum aggregate value of transaction | Fee rate | Amount of filing fee | |
|---|---|---|---|
|
Fees to Be Paid
| X | X | X |
|
Fees Previously Paid
| X | X | |
|
Total Transaction Valuation
| X | ||
|
Total Fees Due for Filing
| X | ||
|
Total Fees Previously Paid
| X | ||
|
Total Fee Offsets
| X | ||
|
Net Fee Due
| X |
Table 2—Fee Offset Claims and Sources
| Registrant or filer name | Form or filing type | File number | Initial filing date | Filing date | Fee offset claimed | Fee paid with fee offset source | |
|---|---|---|---|---|---|---|---|
| Fee Offset Claims | X | X | X | X | |||
| Fee Offset Sources | X | X | X | X | X |
Instructions to the Calculation of Filing Fee Tables and Related Disclosure
(“Instructions”):
1. General Requirements.
A. Applicable Table Requirements.
The “X” designation indicates the information required to be disclosed, as applicable, in
tabular format. Add as many rows of each table as necessary.
B. Fee Rate.
For the current fee rate, see https://www.sec.gov/ofm/Article/feeamt.html.
C. Explanations.
Disclose the (i) title of each class of securities to which the transaction applies; (ii)
aggregate number of securities to which the transaction apples; and (iii) per unit price or
other underlying value of the transaction computed pursuant to Exchange Act Rule 0-11 (set
forth the amount on which the filing fee is calculated and state how it was determined). If
not otherwise explained in response to these instructions, disclose specific details
relating to the fee calculation as necessary to clarify the information presented in each
table, including references to the applicable provisions of Rule 0-11 (§ 240.0-11 of this
chapter). All disclosure these Instructions require that is not specifically required to be
presented in tabular format must appear in narrative format immediately after the table(s)
to which it corresponds.
D. Submission Method.
If a filing fee exhibit is required to be provided pursuant to this Item 25(b), it must be
submitted as required by Rule 408 of Regulation S-T (§ 232.408 of this chapter).
2. Table 1: Transaction Valuation Table and Related Disclosure.
A. Fees to Be Paid and Fees Previously Paid.
i. Fees to Be Paid.
Provide the information Table 1 requires for the line item “Fees to Be Paid” as
follows:
a. Initial Filings.
For an initial filing on this schedule, provide the required information for the total
transaction valuation.
b. Amendments with Then-Current Total Transaction Valuation Higher than
Highest Total Transaction Valuation Previously Reported.
For amendments to this schedule that reflect a then-current total transaction valuation
higher than the highest total transaction valuation previously reported, provide the
required information for the incremental increase.
ii. Fees Previously Paid.
Provide the information Table 1 requires for the line item “Fees Previously Paid” for the
prior initial filing or amendment to this schedule that reflected a then-current total
transaction valuation that was the highest total transaction valuation previously
reported.
B. Other Tabular Information.
Provide the following information in the table for the line items “Fees to be Paid” and
“Fees Previously Paid”, as applicable:
i. The proposed maximum aggregate value of the transaction computed pursuant to Exchange
Act Rule 0-11;
ii. The fee rate; and
iii. The filing fee due without regard to any previous payments or offsets.
C. Totals.
i. Total Transaction Valuation.
Provide the sum of the proposed maximum aggregate values for the line items “Fees to Be
Paid” and “Fees Previously Paid”.
ii. Total Fees Due for Filing.
Provide the sum of the fees due without regard to any previous payments or offsets for the
line items “Fees to be Paid” and “Fees Previously Paid.”
iii. Total Fees Previously Paid.
Provide the aggregate of filing fees previously paid with this filing.
iv. Total Fee Offsets.
Provide the aggregate of the fee offsets that are claimed in Table 2 pursuant to
Instruction 3.
v. Net Fee Due.
Provide the difference between (a) the total fees due for this schedule from the Total Fees
Due for Filing row; and (b) the sum of (i) the aggregate of filing fees previously paid from
the Total Fees Previously Paid row; and (ii) the aggregate fee offsets claimed from the
Total Fee Offsets row.
D. Narrative Disclosure.
Explain how the transaction valuation was determined.
3. Table 2: Fee Offset Claims and Sources.
A. Terminology.
For purposes of this Instruction 3 and Table 2, the term “submission” means any (i) initial
filing of, or amendment (pre-effective or post-effective), to a fee-bearing document; or
(ii) fee-bearing form of prospectus filed under Rule 424 under the Securities Act (§ 230.424
of this chapter), in all cases that was accompanied by a contemporaneous fee payment. For
purposes of these instructions to Table 2, a contemporaneous fee payment is the payment of a
required fee that is satisfied through the actual transfer of funds, and does not include
any amount of a required fee satisfied through a claimed fee offset. Instruction 3.B.ii
requires a filer that claims a fee offset under Rule 0-11(a)(2) to identify previous
submissions with contemporaneous fee payments that are the original source to which the fee
offsets claimed on this filing can be traced. See Instruction 3.C for an example.
B. Rule 0-11(a)(2).
If relying on Rule 0-11(a)(2) to offset some or all of the filing fee due on this schedule
by amounts paid in connection with earlier filings (other than this Schedule 14A) relating
to the same transaction, provide the following information:
i. Fee Offset Claims.
For each earlier filed Securities Act registration statement or Exchange Act document
relating to the same transaction from which a fee offset is being claimed, provide the
information that Table 2 requires for the line item “Fee Offset Claims”. The “Fee Offset
Claimed” column requires the dollar amount of the previously paid filing fee to be offset
against the currently due fee.
Note to Instruction 3.B.i.
If claiming an offset from a Securities Act registration statement, provide a detailed
explanation of the basis for the claimed offset.
ii. Fee Offset Sources.
With respect to amounts claimed as an offset under Rule 0-11(a)(2), identify those
submissions with contemporaneous fee payments that are the original source to which those
amounts can be traced. For each submission identified, provide the information that Table 2
requires for the line item “Fee Offset Sources”. The “Fee Paid with Fee Offset Source”
column requires the dollar amount of the contemporaneous fee payment made with respect to
each identified submission that is the source of the fee offset claimed pursuant to Rule
0-11(a)(2).
C. Fee Offset Source Submission Identification Example.
A filer:
- Initially files a registration statement on Form S-1 on 1/15/20X1 (assigned file number 333-123456) with a fee payment of $10,000;
- Files pre-effective amendment number 1 to the Form S-1 (333-123456) on 2/15/20X1 with a fee payment of $15,000 and the registration statement goes effective on 2/20/20X1;
- Initially files a registration statement on Form S-1 on 1/15/20X4 (assigned file number 333-123467) with a fee payment of $25,000 and relies on Rule 457(p) to claim an offset of $10,000 related to the unsold securities registered on the previously filed Form S-1 (333-123456) and apply it to the $35,000 filing fee due and the registration statement goes effective on 2/15/20X4.
- Initially files a registration statement related to a tender offer on Form S-4 (assigned file number 333-123478) on 1/15/20X7 with a fee payment of $15,000 and relies on Rule 457(p) to claim an offset of $30,000 related to the unsold securities registered on the most recently effective Form S-1 (333-123467) filed on 1/15/20X4 and apply it to the $45,000 filing fee due.
- Initially files a Schedule TO related to the same tender offer on 1/22/20X7 and relies on Rule 0-11(a)(2) to claim an offset of $45,000 from the fee paid directly and by offset claimed on the Form S-4 (333-123478) filed 1/15/20X7 and apply it to the $45,000 filing fee due.
For the Schedule TO filed on 1/22/20X7, the filer can satisfy the submission identification
requirement when it claims the $45,000 fee offset from the Form S-4 (333-123478) filed on
1/15/20X7 by referencing any combination of the Form S-4 (333-123478) filed on 1/15/20X7,
the Form S-1 (333-123467) filed on 1/15/20X4, the pre-effective amendment to the Form S-1
(333-123456) filed on 2/15/20X1 or the initial filing of the Form S-1 (333-123456) on
1/15/20X1 in relation to which contemporaneous fee payments were made equal to $45,000. One
example could be:
- The Form S-4 (333-123478) filed on 1/15/20X7 in relation to the payment of $15,000 made with that submission;
- the Form S-1 (333-123467) filed on 1/15/20X4 in relation to the payment of $25,000 made with that submission; and
- the pre-effective amendment to the Form S-1 (333-123456) filed on 2/15/20X1 in relation to the payment of $5,000 out of the payment of $15,000 made with that submission (it would not matter if the filer cited to this pre-effective amendment and/or the initial submission of this Form S-1 (333-123456) on 1/15/20X1 as long as singly or together they were cited as relating to a total of $5,000 in this example).
In this example, the filer could not satisfy the submission identification requirement
solely by citing to the Form S-4 (333-123478) filed on 1/15/20X7 because even though the
offset claimed and available from that filing was $45,000, the contemporaneous fee payment
made with that filing ($15,000) was less than the offset being claimed. As a result, the
filer must also identify a prior submission or submissions with an aggregate of
contemporaneous fee payment(s) of $30,000 as the original source(s) to which the rest of the
claimed offset can be traced.
[51 FR 42063, Nov. 20, 1986; 51 FR 45576, Dec. 19, 1986; 80 FR
50103, Aug. 18, 2015; as amended at 84 FR 2402, Feb. 2, 2019; 84 FR 12674, Apr. 2, 2019;
85 FR 25964, May 1, 2020; 85 FR 63726, Oct. 8, 2020; 86 FR 2080, Jan. 11, 2021; 86 FR
68330, Dec. 1, 2021; 86 FR 70166, Dec. 9, 2021; 87 FR 55134, Sept. 8, 2022; 87 FR 73076,
Nov. 28, 2022; 87 FR 80362, Dec. 29, 2022; 89 FR 14158, Feb. 26, 2024; 90 FR 9684, Feb.
18, 2025]
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Editorial Note:
For Federal Register citations
affecting § 240.14a-101, see the List of CFR Sections Affected, which appears in
the Finding Aids section of the printed volume and at www.fdsys.gov.
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240.14a-102 — [Reserved]
240.14a-103 — Notice of Exempt Solicitation. Information to be included in statements submitted by or on behalf of a person pursuant to § 240.14a-6(g).
U.S. Securities and Exchange
Commission Washington, DC 20549
Notice of Exempt
Solicitation
1. Name of the Registrant:
2. Name of person relying on exemption:
3. Address of person relying on exemption:
4. Written materials. Attach written material
required to be submitted pursuant to Rule 14a-6(g)(1) [§ 240.14a-6(g)(1)].
[57 FR 48294, Oct. 22, 1992]
240.14a-104 — Notice of Exempt Preliminary Roll-up Communication. Information regarding ownership interests and any potential conflicts of interest to be included in statements submitted by or on behalf of a person pursuant to § 240.14a-2(b)(4) and § 240.14a-6(n).
United States Securities and
Exchange Commission Washington, D.C. 20549
Notice of Exempt Preliminary
Roll-Up Communication
1. Name of registrant appearing on Securities Act of
1933 registration statement for the roll-up transaction (or, if registration statement has
not been filed, name of entity into which partnerships are to be rolled up):
2. Name of partnership that is the subject of the
proposed roll-up transaction:
3. Name of person relying on exemption:
4. Address of person relying on exemption:
5. Ownership interest of security holder in
partnership that is the subject of the proposed roll-up transaction:
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Note:
To the extent that the holder owns securities in any other
entities involved in this roll-up transaction, disclosure of these interests
also should be made.
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6. Describe any and all relations of the holder to
the parties to the transaction or to the transaction itself:
a. The holder is engaged in the business of buying
and selling limited partnership interests in the secondary market would be adversely
affected if the roll-up transaction were completed.
b. The holder would suffer direct (or indirect)
material financial injury if the roll-up transaction were completed since it is a service
provider to an affected limited partnership.
c. The holder is engaged in another transaction that
may be competitive with the pending roll-up transaction.
d. Any other relations to the parties involved in the
transaction or to the transaction itself, or any benefits enjoyed by the holder not shared
on a pro rata basis by all other holders of the same class of securities of the partnership
that is the subject of the proposed roll-up transaction.
[59 FR 63685, Dec. 8, 1994]
240.14Ad-1 — Report of proxy voting record.
(a) Subject to paragraphs (b) and (c) of this section, every institutional investment
manager (as that term is defined in section 13(f)(6)(A) of the Act (15 U.S.C. 78m(f)(6)(A)))
that is required to file reports under section 13(f) of the Act (15 U.S.C. 78m(f)) must file
an annual report on Form N-PX (§§ 249.326 and 274.129 of this chapter) not later than August
31 of each year, for the most recent 12-month period ended June 30, containing the
institutional investment manager's proxy voting record for each shareholder vote pursuant to
sections 14A(a) and (b) of the Act (15 U.S.C. 78n-1(a) and (b)) with respect to each
security over which the manager exercised voting power (as defined in paragraph (d) of this
section).
(b) An institutional investment manager is not required to file a report on Form N-PX
(§§ 249.326 and 274.129 of this chapter) for the 12-month period ending June 30 of the
calendar year in which the manager's initial filing on Form 13F (§ 249.325 of this chapter)
is due pursuant to § 240.13f-1. For purposes of this paragraph (b), “initial filing” on Form
13F means any quarterly filing on Form 13F if no filing on Form 13F was required for the
immediately preceding calendar quarter.
(c) An institutional investment manager is not required to file a report on Form N-PX
(§§ 249.326 and 274.129 of this chapter) with respect to any shareholder vote at a meeting
that occurs after September 30 of the calendar year in which the manager's final filing on
Form 13F (§ 249.325 of this chapter) is due pursuant to § 240.13f-1. An institutional
investment manager is required to file a Form N-PX for the period July 1 through September
30 of the calendar year in which the manager's final filing on Form 13F is due pursuant to
§ 240.13f-1; this filing is required to be made not later than March 1 of the immediately
following calendar year. For purposes of this paragraph (c), “final filing” on Form 13F
means any quarterly filing on Form 13F if no filing on Form 13F is required for the
immediately subsequent calendar quarter.
(d) For purposes of this section:
(1) Voting power means the ability, through any contract, arrangement,
understanding, or relationship, to vote a security or direct the voting of a security,
including the ability to determine whether to vote a security or to recall a loaned
security.
(2) Exercise of voting power means using voting power to influence a voting decision
with respect to a security.
[87 FR 78770, Dec. 22, 2022]
240.14b-1 — Obligation of registered brokers and dealers in connection with the prompt forwarding of certain communications to beneficial owners.
(a) Definitions. Unless the context otherwise requires, all terms
used in this section shall have the same meanings as in the Act and, with respect to proxy
soliciting material, as in § 240.14a-1 thereunder and, with respect to information
statements, as in § 240.14c-1 thereunder. In addition, as used in this section, the term
“registrant” means:
(1) The issuer of a class of securities registered pursuant to section 12
of the Act; or
(2) An investment company registered under the Investment Company Act of
1940.
(b) Dissemination and beneficial owner information requirements. A
broker or dealer registered under Section 15 of the Act shall comply with the following
requirements for disseminating certain communications to beneficial owners and providing
beneficial owner information to registrants.
(1) The broker or dealer shall respond, by first class mail or other
equally prompt means, directly to the registrant no later than seven business days after the
date it receives an inquiry made in accordance with § 240.14a-13(a) or § 240.14c-7(a) by
indicting, by means of a search card or otherwise:
(i) The approximate number of customers of the broker or dealer who are
beneficial owners of the registrant's securities that are held of record by the broker,
dealer, or its nominee;
(ii) The number of customers of the broker or dealer who are beneficial
owners of the registrant's securities who have objected to disclosure of their names,
addresses,and securities positions if the registrant has indicated, pursuant to §
240.14a-13(a)(1)(ii)(A) or § 240.14c-7(a)(1)(ii)(A), that it will distribute the annual
report to security holders to beneficial owners of its securities whose names, addresses and
securities positions are disclosed pursuant to paragraph (b)(3) of this section; and
(iii) The identity of the designated agent of the broker or dealer, if
any, acting on its behalf in fulfilling its obligations under paragraph (b)(3) of this
section; Provided, however, that if the broker or dealer has informed the registrant
that a designated office(s) or department(s) is to receive such inquiries, receipt for
purposes of paragraph (b)(1) of this section shall mean receipt by such designated office(s)
or department(s).
(2) The broker or dealer shall, upon receipt of the proxy, other proxy
soliciting material, information statement, and/or annual report to security holders from
the registrant or other soliciting person, forward such materials to its customers who are
beneficial owners of the registrant's securities no later than five business days after
receipt of the proxy material, information statement or annual report to security holders.
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Note to paragraph (b)(2):
At the request of a registrant, or on its own initiative so
long as the registrant does not object, a broker or dealer may, but is not
required to, deliver one annual report to security holders, proxy statement,
information statement, or Notice of Internet Availability of Proxy Materials to
more than one beneficial owner sharing an address if the requirements set forth
in § 240.14a-3(e)(1) (with respect to annual reports to security holders, proxy
statements, and Notices of Internet Availability of Proxy Materials) and §
240.14c-3(c) (with respect to annual reports to security holders, information
statements, and Notices of Internet Availability of Proxy Materials) applicable
to registrants, with the exception of § 240.14a-3(e)(1)(i)(E), are satisfied
instead by the broker or dealer.
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(3) The broker or dealer shall, through its agent or directly:
(i) Provide the registrant, upon the registrant's request, with the names,
addresses, and securities positions, compiled as of a date specified in the registrant's
request which is no earlier than five business days after the date the registrant's request
is received, of its customers who are beneficial owners of the registrant's securities and
who have not objected to disclosure of such information; Provided , however, that if
the broker or dealer has informed the registrant that a designated office(s) or
department(s) is to receive such requests, receipt shall mean receipt by such designated
office(s) or department(s); and
(ii) Transmit the data specified in paragraph (b)(3)(i) of this section to
the registrant no later than five business days after the record date or other date
specified by the registrant.
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Note 1:
Where a broker or dealer employs a designated agent to act on
its behalf in performing the obligations imposed on the broker or dealer by
paragraph (b)(3) of this section, the five business day time period for
determining the date as of which the beneficial owner information is to be
compiled is calculated from the date the designated agent receives the
registrant's request. In complying with the registrant's request for beneficial
owner information under paragraph (b)(3) of this section, a broker or dealer
need only supply the registrant with the names, addresses, and securities
positions of non-objecting beneficial owners.
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Note 2:
If a broker or dealer receives a registrant's request less
than five business days before the requested compilation date, it must provide a
list compiled as of a date that is no more than five business days after receipt
and transmit the list within five business days after the compilation date.
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(c) Exceptions to dissemination and beneficial owner information
requirements. A broker or dealer registered under section 15 of the Act shall be
subject to the following with respect to its dissemination and beneficial owner information
requirements.
(1) With regard to beneficial owners of exempt employee benefit plan
securities, the broker or dealer shall:
(i) Not include information in its response pursuant to paragraph (b)(1)
of this section or forward proxies (or in lieu thereof requests for voting instructions),
proxy soliciting material, information statements, or annual reports to security holders
pursuant to paragraph (b)(2) of this section to such beneficial owners; and
(ii) Not include in its response, pursuant to paragraph (b)(3) of this
section, data concerning such beneficial owners.
(2) A broker or dealer need not satisfy:
(i) Its obligations under paragraphs (b)(2), (b)(3) and (d) of this
section if the registrant or other soliciting person, as applicable, does not provide
assurance of reimbursement of the broker's or dealer's reasonable expenses, both direct and
indirect, incurred in connection with performing the obligations imposed by paragraphs
(b)(2), (b)(3) and (d) of this section; or
(ii) Its obligation under paragraph (b)(2) of this section to forward
annual reports to security holders to non-objecting beneficial owners identified by the
broker or dealer, through its agent or directly, pursuant to paragraph (b)(3) of this
section if the registrant notifies the broker or dealer pursuant to § 240.14a-13(c) or §
240.14c-7(c) that the registrant will send the annual report to security holders to such
non-objecting beneficial owners identified by the broker or dealer and delivered in a list
to the registrant pursuant to paragraph (b)(3) of this section.
(3) In its response pursuant to paragraph (b)(1) of this section, a broker
or dealer shall not include information about annual reports to security holders, proxy
statements or information statements that will not be delivered to security holders sharing
an address because of the broker or dealer's reliance on the procedures referred to in the
Note to paragraph (b)(2) of this section.
(d) Upon receipt from the soliciting person of all of the information
listed in § 240.14a-16(d), the broker or dealer shall:
(1) Prepare and send a Notice of Internet Availability of Proxy Materials
containing the information required in paragraph (e) of this section to beneficial owners no
later than:
(i) With respect to a registrant, 40 calendar days prior to the security
holder meeting date or, if no meeting is to be held, 40 calendar days prior to the date the
votes, consents, or authorizations may be used to effect the corporate action; and
(ii) With respect to a soliciting person other than the registrant, the
later of:
(A) 40 calendar days prior to the security holder meeting date or, if no
meeting is to be held, 40 calendar days prior to the date the votes, consents, or
authorizations may be used to effect the corporate action; or
(B) 10 calendar days after the date that the registrant first sends its
proxy statement or Notice of Internet Availability of Proxy Materials to security
holders.
(2) Establish a Web site at which beneficial owners are able to access the
broker or dealer's request for voting instructions and, at the broker or dealer's option,
establish a Web site at which beneficial owners are able to access the proxy statement and
other soliciting materials, provided that such Web sites are maintained in a manner
consistent with paragraphs (b), (c), and (k) of § 240.14a-16;
(3) Upon receipt of a request from the registrant or other soliciting
person, send to security holders specified by the registrant or other soliciting person a
copy of the request for voting instructions accompanied by a copy of the intermediary's
Notice of Internet Availability of Proxy Materials 10 calendar days or more after the broker
or dealer sends its Notice of Internet Availability of Proxy Materials pursuant to paragraph
(d)(1); and
(4) Upon receipt of a request for a copy of the materials from a
beneficial owner:
(i) Request a copy of the soliciting materials from the registrant or
other soliciting person, in the form requested by the beneficial owner, within three
business days after receiving the beneficial owner's request;
(ii) Forward a copy of the soliciting materials to the beneficial owner,
in the form requested by the beneficial owner, within three business days after receiving
the materials from the registrant or other soliciting person; and
(iii) Maintain records of security holder requests to receive a paper or
e-mail copy of the proxy materials in connection with future proxy solicitations and provide
copies of the proxy materials to a security holder who has made such a request for all
securities held in the account of that security holder until the security holder revokes
such request.
(5) Notwithstanding any other provisions in this paragraph (d), if the
broker or dealer receives copies of the proxy statement and annual report to security
holders (if applicable) from the soliciting person with instructions to forward such
materials to beneficial owners, the broker or dealer:
(i) Shall either:
(A) Prepare a Notice of Internet Availability of Proxy Materials and
forward it with the proxy statement and annual report to security holders (if applicable);
or
(B) Incorporate any information required in the Notice of Internet
Availability of Proxy Materials that does not appear in the proxy statement into the broker
or dealer's request for voting instructions to be sent with the proxy statement and annual
report (if applicable);
(ii) Need not comply with the following provisions:
(A) The timing provisions of paragraph (d)(1)(ii) of this section; and
(B) Paragraph (d)(4) of this section; and
(iii) Need not include in its Notice of Internet Availability of Proxy
Materials or request for voting instructions the following disclosures:
(A) Legends 1 and 3 in § 240.14a-16(d)(1); and
(B) Instructions on how to request a copy of the proxy materials.
(e) Content of Notice of Internet Availability of Proxy Materials.
The broker or dealer's Notice of Internet Availability of Proxy Materials shall:
(1) Include all information, as it relates to beneficial owners, required
in a registrant's Notice of Internet Availability of Proxy Materials under § 240.14a-16(d),
provided that the broker or dealer shall provide its own, or its agent's, toll-free
telephone number, an e-mail address, and an Internet Web site to service requests for copies
from beneficial owners;
(2) Include a brief description, if applicable, of the rules that permit
the broker or dealer to vote the securities if the beneficial owner does not return his or
her voting instructions; and
(3) Otherwise be prepared and sent in a manner consistent with paragraphs
(e), (f), and (g) of § 240.14a-16.
[57 FR 1099, Jan. 10, 1992, as amended at 65 FR
65751, Nov. 2, 2000; 72 FR 4170, Jan. 29, 2007; 72 FR 42238, Aug. 1, 2007; 73 FR 17814,
Apr. 1, 2008]
240.14b-2 — Obligation of banks, associations and other entities that exercise fiduciary powers in connection with the prompt forwarding of certain communications to beneficial owners.
(a) Definitions. Unless the context otherwise requires, all terms
used in this section shall have the same meanings as in the Act and, with respect to proxy
soliciting material, as in § 240.14a-1 thereunder and, with respect to information
statements, as in § 240.14c-1 thereunder. In addition, as used in this section, the
following terms shall apply:
(1) The term bank means a bank, association, or other entity that
exercises fiduciary powers.
(2) The term beneficial owner includes any person who has or
shares, pursuant to an instrument, agreement, or otherwise, the power to vote, or to direct
the voting of a security.
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Note 1:
If more than one person shares voting power, the provisions of
the instrument creating that voting power shall govern with respect to whether
consent to disclosure of beneficial owner information has been given.
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Note 2:
If more than one person shares voting power or if the
instrument creating that voting power provides that such power shall be
exercised by different persons depending on the nature of the corporate action
involved, all persons entitled to exercise such power shall be deemed beneficial
owners; Provided, however, that only one such beneficial owner need be
designated among the beneficial owners to receive proxies or requests for voting
instructions, other proxy soliciting material, information statements, and/or
annual reports to security holders, if the person so designated assumes the
obligation to disseminate, in a timely manner, such materials to the other
beneficial owners.
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(3) The term registrant means:
(i) The issuer of a class of securities registered pursuant to section 12
of the Act; or
(ii) An investment company registered under the Investment Company Act of
1940.
(b) Dissemination and beneficial owner information requirements. A
bank shall comply with the following requirements for disseminating certain communications
to beneficial owners and providing beneficial owner information to registrants.
(1) The bank shall:
(i) Respond, by first class mail or other equally prompt means, directly
to the registrant, no later than one business day after the date it receives an inquiry made
in accordance with § 240.14a-13(a) or § 240.14c-7(a) by indicating the name and address of
each of its respondent banks that holds the registrant's securities on behalf of beneficial
owners, if any; and
(ii) Respond, by first class mail or other equally prompt means, directly
to the registrant no later than seven business days after the date it receives an inquiry
made in accordance with § 240.14a-13(a) or § 240.14c-7(a) by indicating, by means of a
search card or otherwise:
(A) The approximate number of customers of the bank who are beneficial
owners of the registrant's securities that are held of record by the bank or its
nominee;
(B) If the registrant has indicated, pursuant to § 240.14a-13(a)(1)(ii)(A)
or § 240.14c-7(a)(1)(ii)(A), that it will distribute the annual report to security holders
to beneficial owners of its securities whose names, addresses, and securities positions are
disclosed pursuant to paragraphs (b)(4) (ii) and (iii) of this section:
(1) With respect to customer accounts opened on or before December
28, 1986, the number of beneficial owners of the registrant's securities who have
affirmatively consented to disclosure of their names, addresses, and securities positions;
and
(2) With respect to customer accounts opened after December 28,
1986, the number of beneficial owners of the registrant's securities who have not objected
to disclosure of their names, addresses, and securities positions; and
(C) The identity of its designated agent, if any, acting on its behalf in
fulfilling its obligations under paragraphs (b)(4) (ii) and (iii) of this section;
Provided, however, that, if the bank or respondent bank has informed the registrant
that a designated office(s) or department(s) is to receive such inquiries, receipt for
purposes of paragraphs (b)(1) (i) and (ii) of this section shall mean receipt by such
designated office(s) or department(s).
(2) Where proxies are solicited, the bank shall, within five business days
after the record date:
(i) Execute an omnibus proxy, including a power of substitution, in favor
of its respondent banks and forward such proxy to the registrant; and
(ii) Furnish a notice to each respondent bank in whose favor an omnibus
proxy has been executed that it has executed such a proxy, including a power of
substitution, in its favor pursuant to paragraph (b)(2)(i) of this section.
(3) Upon receipt of the proxy, other proxy soliciting material,
information statement, and/or annual report to security holders from the registrant or other
soliciting person, the bank shall forward such materials to each beneficial owner on whose
behalf it holds securities, no later than five business days after the date it receives such
material and, where a proxy is solicited, the bank shall forward, with the other proxy
soliciting material and/or the annual report to security holders, either:
(i) A properly executed proxy:
(A) Indicating the number of securities held for such beneficial
owner;
(B) Bearing the beneficial owner's account number or other form of
identification, together with instructions as to the procedures to vote the securities;
(C) Briefly stating which other proxies, if any, are required to permit
securities to be voted under the terms of the instrument creating that voting power or
applicable state law; and
(D) Being accompanied by an envelope addressed to the registrant or its
agent, if not provided by the registrant; or
(ii) A request for voting instructions (for which registrant's form of
proxy may be used and which shall be voted by the record holder bank or respondent bank in
accordance with the instructions received), together with an envelope addressed to the
record holder bank or respondent bank.
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Note to paragraph (b)(3):
At the request of a registrant, or on its own initiative so
long as the registrant does not object, a bank may, but is not required to,
deliver one annual report to security holders, proxy statement, information
statement, or Notice of Internet Availability of Proxy Materials to more than
one beneficial owner sharing an address if the requirements set forth in §
240.14a-3(e)(1) (with respect to annual reports to security holders, proxy
statements, and Notices of Internet Availability of Proxy Materials) and §
240.14c-3(c) (with respect to annual reports to security holders, information
statements, and Notices of Internet Availability of Proxy Materials) applicable
to registrants, with the exception of § 240.14a-3(e)(1)(i)(E), are satisfied
instead by the bank.
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(4) The bank shall:
(i) Respond, by first class mail or other equally prompt means, directly
to the registrant no later than one business day after the date it receives an inquiry made
in accordance with § 240.14a-13(b)(1) or § 240.14c-7(b)(1) by indicating the name and
address of each of its respondent banks that holds the registrant's securities on behalf of
beneficial owners, if any;
(ii) Through its agent or directly, provide the registrant, upon the
registrant's request, and within the time specified in paragraph (b)(4)(iii) of this
section, with the names, addresses, and securities position, compiled as of a date specified
in the registrant's request which is no earlier than five business days after the date the
registrant's request is received, of:
(A) With respect to customer accounts opened on or before December 28,
1986, beneficial owners of the registrant's securities on whose behalf it holds securities
who have consented affirmatively to disclosure of such information, subject to paragraph
(b)(5) of this section; and
(B) With respect to customer accounts opened after December 28, 1986,
beneficial owners of the registrant's securities on whose behalf it holds securities who
have not objected to disclosure of such information;
Provided, however, that if the record holder bank or respondent bank has informed the
registrant that a designated office(s) or department(s) is to receive such requests, receipt
for purposes of paragraphs (b)(4) (i) and (ii) of this section shall mean receipt by such
designated office(s) or department(s); and
(iii) Through its agent or directly, transmit the data specified in
paragraph (b)(4)(ii) of this section to the registrant no later than five business days
after the date specified by the registrant.
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Note 1:
Where a record holder bank or respondent bank employs a
designated agent to act on its behalf in performing the obligations imposed on
it by paragraphs (b)(4) (ii) and (iii) of this section, the five business day
time period for determining the date as of which the beneficial owner
information is to be compiled is calculated from the date the designated agent
receives the registrant's request. In complying with the registrant's request
for beneficial owner information under paragraphs (b)(4) (ii) and (iii) of this
section, a record holder bank or respondent bank need only supply the registrant
with the names, addresses and securities positions of affirmatively consenting
and non-objecting beneficial owners.
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Note 2:
If a record holder bank or respondent bank receives a
registrant's request less than five business days before the requested
compilation date, it must provide a list compiled as of a date that is no more
than five business days after receipt and transmit the list within five business
days after the compilation date.
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(5) For customer accounts opened on or before December 28, 1986, unless
the bank has made a good faith effort to obtain affirmative consent to disclosure of
beneficial owner information pursuant to paragraph (b)(4)(ii) of this section, the bank
shall provide such information as to beneficial owners who do not object to disclosure of
such information. A good faith effort to obtain affirmative consent to disclosure of
beneficial owner information shall include, but shall not be limited to, making an
inquiry:
(i) Phrased in neutral language, explaining the purpose of the disclosure
and the limitations on the registrant's use thereof;
(ii) Either in at least one mailing separate from other account mailings
or in repeated mailings; and
(iii) In a mailing that includes a return card, postage paid
enclosure.
(c) Exceptions to dissemination and beneficial owner information
requirements. The bank shall be subject to the following respect to its dissemination
and beneficial owner requirements.
(1) With regard to beneficial owners of exempt employee benefit plan
securities, the bank shall not:
(i) Include information in its response pursuant to paragraph (b)(1) of
this section; or forward proxies (or in lieu thereof requests for voting instructions),
proxy soliciting material, information statements, or annual reports to security holders
pursuant to paragraph (b)(3) of this section to such beneficial owners; or
(ii) Include in its response pursuant to paragraphs (b)(4) and (b)(5) of
this section data concerning such beneficial owners.
(2) The bank need not satisfy:
(i) Its obligations under paragraphs (b)(2), (b)(3), (b)(4) and (d) of
this section if the registrant or other soliciting person, as applicable, does not provide
assurance of reimbursement of its reasonable expenses, both direct and indirect, incurred in
connection with performing the obligations imposed by paragraphs (b)(2), (b)(3), (b)(4) and
(d) of this section; or
(ii) Its obligation under paragraph (b)(3) of this section to forward
annual reports to security holders to consenting and non-objecting beneficial owners
identified pursuant to paragraphs (b)(4) (ii) and (iii) of this section if the registrant
notifies the record holder bank or respondent bank, pursuant to § 240.14a-13(c) or §
240.14c-7(c), that the registrant will send the annual report to security holders to
beneficial owners whose names addresses and securities positions are disclosed pursuant to
paragraphs (b)(4) (ii) and (iii) of this section.
(3) For the purposes of determining the fees which may be charged to
registrants pursuant to § 240.14a-13(b)(5), § 240.14c-7(a)(5), and paragraph (c)(2) of this
section for performing obligations under paragraphs (b)(2), (b)(3), and (b)(4) of this
section, an amount no greater than that permitted to be charged by brokers or dealers for
reimbursement of their reasonable expenses, both direct and indirect, incurred in connection
with performing the obligations imposed by paragraphs (b)(2) and (b)(3) of § 240.14b-1,
shall be deemed to be reasonable.
(4) In its response pursuant to paragraph (b)(1)(ii)(A) of this section, a
bank shall not include information about annual reports to security holders, proxy
statements or information statements that will not be delivered to security holders sharing
an address because of the bank's reliance on the procedures referred to in the Note to
paragraph (b)(3) of this section.
(d) Upon receipt from the soliciting person of all of the information
listed in § 240.14a-16(d), the bank shall:
(1) Prepare and send a Notice of Internet Availability of Proxy Materials
containing the information required in paragraph (e) of this section to beneficial owners no
later than:
(i) With respect to a registrant, 40 calendar days prior to the security
holder meeting date or, if no meeting is to be held, 40 calendar days prior to the date the
votes, consents, or authorizations may be used to effect the corporate action; and
(ii) With respect to a soliciting person other than the registrant, the
later of:
(A) 40 calendar days prior to the security holder meeting date or, if no
meeting is to be held, 40 calendar days prior to the date the votes, consents, or
authorizations may be used to effect the corporate action; or
(B) 10 calendar days after the date that the registrant first sends its
proxy statement or Notice of Internet Availability of Proxy Materials to security
holders.
(2) Establish a Web site at which beneficial owners are able to access the
bank's request for voting instructions and, at the bank's option, establish a Web site at
which beneficial owners are able to access the proxy statement and other soliciting
materials, provided that such Web sites are maintained in a manner consistent with
paragraphs (b), (c), and (k) of § 240.14a-16;
(3) Upon receipt of a request from the registrant or other soliciting
person, send to security holders specified by the registrant or other soliciting person a
copy of the request for voting instructions accompanied by a copy of the intermediary's
Notice of Internet Availability of Proxy Materials 10 days or more after the bank sends its
Notice of Internet Availability of Proxy Materials pursuant to paragraph (d)(1); and
(4) Upon receipt of a request for a copy of the materials from a
beneficial owner:
(i) Request a copy of the soliciting materials from the registrant or
other soliciting person, in the form requested by the beneficial owner, within three
business days after receiving the beneficial owner's request;
(ii) Forward a copy of the soliciting materials to the beneficial owner,
in the form requested by the beneficial owner, within three business days after receiving
the materials from the registrant or other soliciting person; and
(iii) Maintain records of security holder requests to receive a paper or
e-mail copy of the proxy materials in connection with future proxy solicitations and provide
copies of the proxy materials to a security holder who has made such a request for all
securities held in the account of that security holder until the security holder revokes
such request.
(5) Notwithstanding any other provisions in this paragraph (d), if the
bank receives copies of the proxy statement and annual report to security holders (if
applicable) from the soliciting person with instructions to forward such materials to
beneficial owners, the bank:
(i) Shall either:
(A) Prepare a Notice of Internet Availability of Proxy Materials and
forward it with the proxy statement and annual report to security holders (if applicable);
or
(B) Incorporate any information required in the Notice of Internet
Availability of Proxy Materials that does not appear in the proxy statement into the bank's
request for voting instructions to be sent with the proxy statement and annual report (if
applicable);
(ii) Need not comply with the following provisions:
(A) The timing provisions of paragraph (d)(1)(ii) of this section; and
(B) Paragraph (d)(4) of this section; and
(iii) Need not include in its Notice of Internet Availability of Proxy
Materials or request for voting instructions the following disclosures:
(A) Legends 1 and 3 in § 240.14a-16(d)(1); and
(B) Instructions on how to request a copy of the proxy materials.
(e) Content of Notice of Internet Availability of Proxy Materials.
The bank's Notice of Internet Availability of Proxy Materials shall:
(1) Include all information, as it relates to beneficial owners, required
in a registrant's Notice of Internet Availability of Proxy Materials under § 240.14a-16(d),
provided that the bank shall provide its own, or its agent's, toll-free telephone number,
e-mail address, and Internet Web site to service requests for copies from beneficial owners;
and
(2) Otherwise be prepared and sent in a manner consistent with paragraphs
(e), (f), and (g) of § 240.14a-16.
[57 FR 1100, Jan. 10, 1992, as amended at 65 FR 65751, Nov. 2, 2000; 72 FR
4171, Jan. 29, 2007; 72 FR 42239, Aug. 1, 2007; 73 FR 17814, Apr. 1, 2008; 85 FR 33290,
June 1, 2020]