The recently adopted universal proxy rules apply to annual meetings held on or after September 1, 2022. Because universal proxy will apply to contested director elections at all 2023 annual meetings, we recommend including disclosure regarding the universal proxy deadline in this year’s proxy statement, including for companies that hold their annual meeting well in advance of the September 1, 2022 mandatory compliance date. Sample disclosure for this purpose could be as follows: “to comply with the universal proxy rules (once effective), stockholders who intend to solicit proxies in support of director nominees other than the company’s nominees must provide notice that sets forth the information required by Rule 14a-19 under the Exchange Act no later than [INSERT DATE THAT IS 60 DAYS PRIOR TO ONE YEAR ANNIVERSARY OF 2022 ANNUAL MEETING]. This additional voluntary disclosure could be particularly useful for companies with no advance notice bylaws or with advance notice bylaws that provide a notice deadline of less than 60 days prior to the meeting, and could also be useful for companies that have longer advance notice deadlines, but move their meeting date and thereby create new accelerated deadlines.
New Rule 14a-5(e)(4) requires companies to disclose the deadline for providing notice of a solicitation of proxies in support of director nominees, other than the company’s nominees, for the company’s next annual meeting. New Rule 14a-19(b)(1) requires that the universal proxy notice be postmarked or transmitted electronically to the company at its principal executive office no later than 60 calendar days prior to the anniversary of the previous year’s annual meeting date. While the Rule 14a-5(e)(4) disclosure is not required for annual meetings held prior to September 1, 2022, we recommend voluntarily including this disclosure in this year’s proxy statement, including for companies that hold their annual meeting well in advance of September 1, 2022. For more information on the universal proxy rules, check out our Goodwin alert.