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D. Rule 14a-12
us SEC - C&DI - Proxy Rules and Schedules
Question 1
Q: If a company in a merger transaction issues a press release announcing the transaction and files the press release under Rule 14a-12, is the company then obligated to file all subsequent written communications as soliciting material simply because it began its solicitation?
A: No. The company is not required to file every written communication it makes as soliciting material. The company is required to file only those written communications that relate to or are made in connection with the transaction that are reasonably viewed as soliciting material. However, communications that would not ordinarily be solicitations when the company is not soliciting its shareholders may be viewed as solicitations if made when the company is soliciting its shareholders (i.e., the circumstances under which the communications are made have changed). A solicitation is a communication that is reasonably likely to result in the giving, withholding or revocation of a proxy. See Rule 14a-1(l). The company must analyze each written communication on a case-by-case basis to determine whether the communication relates to the transaction and whether the communication is a solicitation. If so, then the party must file the written communication under Rule 14a-12.
Question 2
Q: Must a written communication filed under Rule 14a-12 include participant information if the solicitation is not contested?
A: Yes. Written communications filed under Rule 14a-12 must include participant information or a prominent legend advising security holders where they can obtain this information. This is a change from old Rules 14a-11 and 14a-12, which required participant information only in contested solicitations. See Rule 14a-12
If the solicitation relates to a merger in which securities are offered, the offeror may be subject to the proxy rules if it is soliciting proxies on its own behalf or on behalf of the target's security holders. In this event, the offeror's filings under Rule 425 will satisfy the filing requirement under Rule 14a-12. The participant information required by Rule 14a-12 would still be necessary. See Question B.9.
Question 3
Q: Can you rely on the exemption provided by Rule 14a-12 to engage in soliciting activities before a proxy statement is furnished to security holders if you do not ever intend to file or disseminate a proxy statement? We note that the requirement to furnish a proxy statement "as soon as practicable" was eliminated in adopting revised Rule 14a-12.
A: No. In order to rely on Rule 14a-12, soliciting parties must intend to furnish a proxy statement to security holders. The "as soon as practicable" requirement was eliminated so that soliciting parties would not have a technical requirement to deliver a proxy statement should the solicitation be discontinued for any reason. One basis for permitting free communications under Rule 14a-12 was that security holders will receive a complete disclosure document containing all material information before having to make a voting decision.
Question 4
Q: After a proxy statement is furnished to security holders, should subsequent communications be filed under Rule 14a-12?
A: No. Subsequent communications are filed as "other soliciting material" under Rule 14a-6(b).
Question 5
Q: Does the Regulation M restricted period begin when the proxy statement and proxy card are mailed to security holders or when soliciting materials are first filed under Rule 14a-12?
A: The restricted period under Regulation M begins when the proxy statement and proxy card are mailed to security holders.
This is a work of the U.S. Government
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