Michael R. Levin is founder and editor of The Activist Investor. Related research from the Program on Corporate Governance includes Universal Proxies by Scott Hirst (discussed on the Forum here).
Like all good and sound SEC regulations, the one on Universal Proxy Cards (UPC) calls for some new notices—to shareholders, from the company, among activist investors, to the SEC, etc. etc.
The new UPC rule has some novel notice requirements for activists. Others are similar to existing notice processes. Complying with these should be straightforward. Yet, it’s not hard to miss one or another of these, and then it’s difficult and possibly fatal for a proxy contest. Best to know the notice structure and plan ahead well.
Here we explain how these notices work, as simply as we can. Citations below refer to sections, pages, and footnotes in the final regulation. You can find more resources at universalproxycard.com.
Notices serve two purposes
First, UPC means the company and activist (or multiple activists) must present the same list of BoD nominees to shareholders. So, they need to exchange that information far enough ahead of a shareholder meeting to allow each to include all nominees. This is new and unique to the UPC.
Second, the activist needs to inform shareholders about its nominees, which might seem obvious. The particulars of the UPC rule makes it a little tricky. In short, the SEC requires an activist to handle an existing notice (proxy statement) in a new way.
You see, while the SEC requires all nominee names on the UPC, that’s it. The rule doesn’t require anything further, like biographical data. So, shareholders receive a company proxy statement with all the usual information, including glorious detail about the company nominees. They receive a company UPC listing those nominee names.
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