John Newell is Counsel and Manager of Public Company Practice at Goodwin Procter LLP. This post is based on a Goodwin publication by Mr. Newell, Daniel P. Adams, David H. Roberts, and Bradley C. Weber.
The staff of the Division of Corporation Finance of the Securities and Exchange Commission has issued three additional responses to company no-action requests to exclude shareholder-proposed amendments to proxy access bylaw provisions previously adopted by the company. Each of the three SEC responses states that the SEC staff does not believe that the company can exclude the shareholder proposals on the basis that either:
- the shareholder’s proposed amendments (which included three or five specific amendments) constitute more than one proposal and could therefore be excluded by the company in reliance on Rule 14a-8(c); or
- the company had substantially implemented the shareholder’s proposed amendments through its initial adoption of a proxy access bylaw that differed in its ancillary provisions from the amendments subsequently proposed by the shareholder.