Keep Notice & Access in check with the SEC

Much like the first crocus blooms, Spring also blooms an uncompromising reminder to public companies about the tactical requirements surrounding the shareholder communications of their annual report and proxy materials. Each year, we help our clients with some or all of the different parts of these requirements.

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Unless the issuer chooses to hardcopy print and mail the full annual report and proxy materials to all their shareholders by default, they can select to follow the SEC’s 2009 Notice of Internet Availability of Proxy Materials process. Generally called “Notice and Access,” this simply means an issuer can, 40 days prior to the annual shareholder meeting, ask investors – via a mailed card –  if they want to continue receiving hardcopy versions of the annual report and proxy materials or switch to online only. Public companies send a “notice” asking shareholders how they want “access” to the materials. 

Check these points each year:

  • All materials identified in the Notice of Internet Availability of Proxy Materials must be publicly accessible, free of charge, at the website address specified in the notice on or before the time that the notice is sent to the shareholder and all materials must remain available on that website through the conclusion of the annual shareholder meeting
  • All additional soliciting materials sent to shareholders, or made public after the Notice of Internet Availability of Proxy Materials has been sent, must be made publicly accessible at the specified website address no later than the day on which such materials are first sent to shareholders or made public.
  • The website address relied upon for compliance under this section can not be the SEC website
  • The issuer must provide shareholders with a means to execute a proxy as of the time the Notice of Internet Availability of Proxy Materials is first sent
  • The materials must be presented on the website in a format, or formats, convenient for both reading online and printing on paper

The Notice of Internet Availability of Proxy Materials must contain the following:

  • 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]” 
  • 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
  • The website address where the proxy materials are available
  • 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
  • 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
  • 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
  • A list of the materials being made available at the specified website
  • 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
  • Any control/identification numbers that the security holder needs to access his or her form of proxy
  • 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 Rule 14a-3(b), the annual report to security holders
  • Information on how to obtain directions to be able to attend the meeting and vote in person

Except for a pre-addressed, postage-paid reply card for requesting a copy of the proxy materials, 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.

Materials must be presented in plain English:

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: at a minimum, it substantially complies with each of the following plain English writing principles:

  • Short sentences
  • Definite, concrete, everyday word
  • Active voice
  • Tabular presentation or bullet lists for complex material, whenever possible
  • No legal jargon or highly technical business terms
  • No multiple negatives
  • I2015_booksn 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.

FOR COMPLETE DETAILS ON THIS, I SUGGEST YOU REQUEST OUR 2015 SEC REPORTING RULES GUIDEBOOK SET > CLICK HERE. IT CONTAINS 300 PAGES ON PROXY STATEMENTS.  

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