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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Rules and Regulations 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 registrants governing documents as they relate to the inclusion of shareholder director nominees in the registrants 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 b2, 3, and 4. Paragraphs b2, 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.

c
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.

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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 registrants 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 d1i of this section, if the registrant is an investment company registered under the Investment Company Act of 1940 15 U.S.C. 80a1 et seq. or a business development company as defined by section 2a48 of the Investment Company Act of 1940 15
U.S.C. 80a2a48, 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 2a48 of the Investment Company Act of 1940, from seeking authority to vote for nominees named in the registrants 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 registrants nominees will serve if elected with any of the soliciting partys nominees;

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.

5. Amend 240.14a5 as follows:
a. Revise paragraph c;
b. In paragraph e2, remove the and at the end of the paragraph;

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c. In paragraph e3, remove the period and add ; and in its place; and d. Add paragraph e4.
The revisions and addition read as follows:

240.14a5 Presentation of information in proxy statement.

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.

e
4 The deadline for providing notice of a solicitation of proxies in support of director nominees other than the registrants nominees pursuant to 240.14a19 for the registrants next annual meeting unless the registrant is an investment company registered under the Investment Company Act of 1940 15 U.S.C. 80a1 et seq. or a business development company as defined by section 2a48 of the Investment Company Act of 1940 15
U.S.C. 80a2a48.

6. Amend 240.14a6 by revising note 3 to paragraph a to read as follows:
240.14a6

Filing requirements.

a

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 registrants proxy material pursuant to 240.14a8; and c any solicitation subject to 240.14a19. The inclusion of a security holder proposal in the registrants proxy material pursuant to 240.14a8 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 registrants proxy materials pursuant to an applicable state or foreign law provision, or a registrants governing documents as they relate to the inclusion of shareholder director nominees in the registrants 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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