Additional Proxy Materials

While annual meeting season for calendar year-end companies is heading towards the home stretch, numerous companies are still filing additional proxy materials. We have seen companies file these materials this year in various contexts, including to deal with an adverse voting recommendation from ISS or to provide additional disclosure.

One question that arises is whether a company should file additional soliciting materials under Rule 14a-12 or Rule 14a-6(b) once it has a definitive proxy statement on file. This is relevant for several reasons, including the fact that a company can do a combination filing on Form 8-K to satisfy its proxy filing obligation by checking the Rule 14a-12 box on the 8-K cover page if the filing is made pursuant to Rule 14a-12, but cannot do so if the filing is made pursuant to Rule 14a-6(b).

The SEC Staff has made clear in the following Q&A that once a definitive proxy statement is on file, any additional soliciting material needs to be filed pursuant to Rule 14a-6(b): “After a proxy statement is furnished to security holders, should subsequent communications be filed under Rule 14a-12? No. Subsequent communications are filed as ‘other soliciting material’ under Rule 14a-6(b).” As such, once a company’s definitive proxy statement has been filed with the SEC, it must file any additional proxy materials as “definitive additional materials” on Schedule 14A to satisfy its filing obligation.

See Division of Corporation Finance: Manual of Publicly Available Telephone Interpretations, Third Supplement, July 2001, I. Regulation M-A: Release No. 33-7760, October 22, 1999, D. Rule 14a-12, Question 4.