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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Rules and Regulations Due date
Action required
No later than 20 business days before the record date for the meeting. existing 17 CFR 240.14a13 Rule 14a13.

Registrant must conduct broker searches to determine the number of copies of proxy materials necessary to supply such material to beneficial owners.
Dissident must file its definitive proxy statement with the Commission.

By the later of 25 calendar days before the meeting date or five calendar days after the registrant files its definitive proxy statement. new Rule 14a19a2.

F. Access to Information About All Nominees 1. Proposed Rules The Commission proposed new Item 7h of Schedule 14A relettered as Item 7f in this document to require that each party in a contested election refer shareholders to the other partys proxy statement for information about the other partys nominees and explain that shareholders can access the other partys proxy statement without cost on the Commissions website. The Commission also proposed to revise Rule 14a5c to permit the parties to refer to information that would be furnished in a filing of the other party to satisfy their disclosure obligations.123
Taken together, these proposed changes were intended to enable shareholders to access information with respect to all nominees when they receive a universal proxy card. Finally, the Commission proposed to change the definition of participant in Instruction 3 to Items 4
and 5 of Schedule 14A to ensure that, even though all nominees would be included on the universal proxy card, only the partys own nominees would be considered participants in that partys solicitation.

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2. Comments Received Several commenters expressed support for the requirements that each soliciting person in a contested election must refer shareholders to the other partys proxy statement for information about the other partys nominees and must explain that shareholders can access the other partys proxy statement without cost on the Commissions website.124 Many of these commenters indicated that such a statement is sufficient and no additional information, such as instructions as to how to access proxy statements on the Commissions website or a hyperlink to that website, is necessary.125 One of these commenters noted that requiring a reference to proxy materials available on 123 Prior
to these rule changes, Rule 14a5c permits parties only to refer to information that has already been furnished in a filing of another party.
124 See letters from CII; Fidelity; CFA Institute;
SBAFL; Carpenters; NY Comptroller; CalSTRS;
Colorado PERA; AFSCME.
125 See letters from CII; SBAFL; Carpenters; NY
Comptroller; CalSTRS; Colorado PERA; AFSCME.

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the Commissions website will allow shareholders to make an informed voting decision where they receive a proxy statement and universal proxy card from only one soliciting party.126
Several commenters expressed concern that retail investors would not receive proxy materials from dissidents electing to solicit the minimum required.127 One of these commenters indicated that shareholders omitted from the dissidents solicitation would be at an informational disadvantage, making it difficult for those shareholders to make informed voting decisions which would potentially discourage shareholders from participating in the election.128 Two commenters suggested adopting an additional requirement to include a tollfree telephone number where shareholders could request paper copies of proxy materials free of charge.129 To permit retail investors to obtain dissident materials without having to navigate the Commission website, two commenters suggested permitting broker-dealers to provide dissident proxy materials to shareholders upon request and requiring dissidents to bear any associated costs.130
Two commenters argued that requiring both the registrant and dissident to publicize the election campaign of the opposing side in the contest is an inappropriate attempt by the Commission to compel corporate speech, in contravention of the First Amendment.131
3. Final Amendments We are adopting, as proposed: i New Item 7f of Schedule 14A, ii the changes to Rule 14a5c described above, and iii the changes to Items 4
and 5 of Schedule 14A described above, in each case for the reasons detailed in the Proposing Release.132 Although we acknowledge the views of the dissenting commenters described above, the final rule changes will sufficiently enable 126 See
letter from Fidelity.
letters from BM; SIFMA; ABC; CCMC;
CGCIV; Davis Polk; letter dated Jan. 9, 2017 from Business Roundtable BR.
128 See letter from BR.
129 See letters from Fidelity; SIFMA.
130 See letters from Fidelity; SIFMA.
131 See letters from CCMC; CGCIV.
132 See Proposing Release at Section II.B.5.b.
127 See
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shareholders to access information with respect to all nominees when they receive a universal proxy card.
Requiring a new toll-free telephone number is unnecessary, given that existing rules already mandate that proxy statements include information on how to obtain paper copies.133 In our view, the Commission website, including the EDGAR system, is sufficiently user-friendly, with available aids and ongoing enhancements, for all investors to access proxy statements filed with the Commission through a simple search, and we therefore disagree that retail investors will lack the information to locate such materials.
Furthermore, proxy solicitors and others involved in the contest are available to assist retail investors in this regard.
Given these facts, the imposition of additional costs on dissidents in connection with additional delivery procedures, such as through required reimbursement of broker-dealers, would not be justified.
Finally, we do not agree with commenters that suggest that the final rule runs afoul of the First Amendment.
Far from being controversial corporate speech, 134 the rule simply provides shareholders voting by proxy with the same informationthe names of all the candidates for whom they can voteas they would receive if they attended the shareholder meeting in person, and is squarely within the economic or investor protection benefits that our rules ordinarily strive to achieve. 135
Under the existing proxy rules, soliciting parties in a contest commonly direct shareholders to required disclosure that appears in the other sides proxy statement.136

133 See
17 CFR 240.14a16 Rule 14a16.
letters from CCMC; CGCIV.
135 Natl Assn of Manufacturers v. SEC, 800 F.3d 518, 521 D.C. Cir. 2015 internal quotation marks omitted. Similarly, we do not agree with the commenters suggestion that the rule requires a corporation to subsidize and publicize speech with which it may not agree; the rule requirements may be met by, for example, the registrant simply pointing out that the opponents materials can be accessed at no cost on the Commissions website.
136 See Rule 14a5c.
134 See
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