names and addresses of such of the bankers, brokers or other persons specified in paragraph (a) (2) of this section as the security holder shall designate together with a statement of the approximate number of beneficial owners solicited or to be solicited through each such banker, broker or other person and a schedule of the handling and mailing costs of each such banker, broker or other person if such schedule has been supplied to the management of the issuer. The foregoing information shall be furnished promptly upon the request of the security holder or at daily or other reasonable intervals as it becomes available to the management of the issuer. [17 F.R. 11433, Dec. 18, 1952, as amended at 21 F.R. 578, Jan. 26, 1956]

§ 240.14a-8 Proposals holders.

of security

(a) If any security holder entitled to vote at a meeting of security holders of the issuer shall submit to the management of the issuer, within the time hereinafter specified, a proposal which is accompanied by notice of his intention to present the proposal for action at the meeting, the management shall set forth the proposal in its proxy statement and shall identify it in its form of proxy and provide means by which security holders can make the specification provided for by Rule 14a-4(b) (§ 240.14a-4 (b)). The management of the issuer shall not be required by this rule to include the proposal in its proxy statement for an annual meeting unless the proposal is submitted to the management not less than 60 days in advance of a day corresponding to the first date on which the management's proxy soliciting material was released to security holders in connection with the last annual meeting of security holders, except that if the date of the annual meeting has been changed as a result of a change in the fiscal year, a proposal shall be submitted a reasonable time before the solicitation is made. A proposal to be presented at any other meeting shall be submitted to the management of the issuer a reasonable time before the solicitation is made. This section does not apply, however, to elections to office or to counter proposals to matters to be submitted by the management.

(b) If the management opposes the proposal it shall also, at the request of the security holder, include in its proxy

statement a statement of the security holder, in not more than 100 words, in support of the proposal, which statement shall not include the name and address of the security holder. The proxy statement shall also include either the name and address of the security holder or a statement that such information will be furnished by the issuer or by the Commission to any person, orally or in writing as requested, promptly upon the receipt of any oral or written request therefor. If the name and address of the security holder is omitted from the proxy statement, it shall be furnished to the Commission at the time of filing the management's preliminary proxy material pursuant to Rule 14a-6(a) (§ 240.14a-6(a)). The statement and request of the security holder shall be furnished to the management at the same time that the proposal is furnished. Neither the management nor the issuer shall be responsible for such statement.

(c) Notwithstanding the foregoing, the management may omit a proposal and any statement in support thereof from its proxy statement and form of proxy under any of the following circumstances:

(1) If the proposal as submitted is, under the laws of the issuer's domicile, not a proper subject for action by security holders; or

(2) If it clearly appears that the proposal is submitted by the security holder primarily for the purpose of enforcing a personal claim or redressing a personal grievance against the issuer or its management, or primarily for the purpose of promoting general economic, political, racial, religious, social or similar causes;

or

(3) If the management has at the security holder's request included a proposal in its proxy statement and form of proxy relating to either of the last two annual meetings of security holders or any special meeting held subsequent to the earlier of such two annual meetings and such security holder has failed without good cause to present the proposal, in person or by proxy, for action at the meeting; or

(4) If substantially the same proposal has previously been submitted to security holders, in the management's proxy statement and form of proxy, relating to any annual or special meeting of security holders held within the preceding five calendar years, it may be omitted

from the management's proxy material relating to any meeting of security holders held within the three calendar years after the latest such previous submission: Provided, That:

(i) If the proposal was submitted at only one meeting during such preceding period, it received less than 3 percent of the total number of votes cast in regard thereto; or

(ii) If the proposal was submitted at only two meetings during such preceding period, it received at the time of its second submission less than 6 percent of the total number of votes cast in regard thereto; or

(iii) If the proposal was submitted at three or more meetings during such preceding period, it received at the time of its latest submission less than 10 percent of the total number of votes cast in regard thereto.

(5) If the proposal consists of a recommendation or request that the management take action with respect to a matter relating to the conduct of the ordinary business operations of the issuer.

(d) Whenever the management asserts that a proposal and any statement in support thereof may properly be omitted from its proxy statement and form of proxy, it shall file with the Commission, not later than 20 days prior to the date the preliminary copies of the proxy statement and form of proxy are filed pursuant to § 240.14a-6(a), or such shorter period prior to such date as the Commission may permit, a copy of the proposal and any statement in support thereof as received from the security holder, together with a statement of the reasons why the management deems such omission to be proper in the particular case, and, where such reasons are based on matters of law, a supporting opinion of counsel. The management shall at the same time, if it has not already done so, notify the security holder submitting the proposal of its intention to omit the proposal from its proxy statement and form of proxy and shall forward to him a copy of the statement of the reasons why the management deems the omission of the proposal to be proper and a copy of such supporting opinion of counsel.

(Sec. 14, 48 Stat. 895; 15 U.S.C. 78n) [19 F.R. 247, Jan. 14, 1954; 32 F.R. 20964, Dec. 29, 1967]

(a) No solicitation subject to this regulation shall be made by means of any proxy statement, form of proxy, notice of meeting or other communication, written or oral, containing any statement which, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading or necessary to correct any statement in any earlier communication with respect to the solicitation of a proxy for the same meeting or subject matter which has become false or misleading.

(b) The fact that a proxy statement, form of proxy or other soliciting material has been filed with or examined by the Commission shall not be deemed a finding by the Commission that such material is accurate or complete or not false or misleading, or that the Commission has passed upon the merits of or approved any statement contained therein or any matter to be acted upon by security holders. No representation contrary to the foregoing shall be made.

NOTE: The following are some examples of what, depending upon particular facts and circumstances, may be misleading within the meaning of this section:

(a) Predictions as to specific future market values, earnings, or dividends.

(b) Material which directly or indirectly Impugns character, integrity or personal reputation, or directly or indirectly makes charges concerning improper, illegal or immoral conduct or associations, without factual foundation.

(c) Failure to so identify a proxy statement, form of proxy and other soliciting material as to clearly distinguish it from the soliciting material of any other person or persons soliciting for the same meeting or subject matter.

[17 F.R.

(d) Claims made prior to a meeting regarding the results of a solicitation. (Sec. 14, 48 Stat. 895; 15 U.S.C. 78n) 11434, Dec. 18, 1952, as amended at 21 F.R. 578, Jan. 26, 1956; 31 F.R. 212, Jan. 7, 1966] § 240.14a-10 Prohibition of certain solicitations.

No person making a solicitation which is subject to §§ 240.14a-1 to 240.14a-10 shall solicit:

or

(a) Any undated or postdated proxy;

(b) Any proxy which provides that it shall be deemed to be dated as of any

date subsequent to the date on which it is signed by the security holder. [17 F.R. 11434, Dec. 18, 1952]

§ 240.14a-11

Special provisions applicable to election contests.

(a) Solicitations to which this section applies. This section applies to any solicitation subject to §§ 240.14a-1 to 240.14a-11 by any person or group of persons for the purpose of opposing a solicitation subject to §§ 240.14a-1 to 240.14a-11 by any other person or group of persons with respect to the election or removal of directors at any annual or special meeting of security holders.

(b) Participant or participant in a solicitation. For purposes of this rule the terms "participant" and "participant in a solicitation" include the following:

(1) The issuer;

(2) Any director of the issuer, and any nominee for whose election as a director proxies are solicited;

(3) Any committee or group which solicits proxies, any member of such committee or group, and any person whether or not named as a member who, acting alone or with one or more other persons directly or indirectly takes the initiative, or engages, in organizing, directing, or arranging for the financing of, any such committee or group;

(4) Any person who finances or joins with another to finance the solicitation of proxies, except persons who contribute not more than $500 and who are not otherwise participants;

(5) Any person who lends money or furnishes credit or enters into any other arrangements, pursuant to any contract or understanding with a participant, for the purpose of financing or otherwise inducing the purchase, sale, holding or voting of securities of the issuer by any participant or other persons, in support of or in opposition to a participant; except that such terms do not include a bank, broker or dealer who, in the ordinary course of business, lends money or executes orders for the purchase or sale of securities and who is not otherwise a participant, and

(6) Any other person who solicits proxies. The foregoing terms do not, however, include (i) any person or organization retained or employed by a participant to solicit security holders and whose activities are limited to the performance of his duties in the course of

such employment; (ii) any person who merely transmits proxy soliciting material or performs other ministerial or clerical duties; (iii) any person employed by a participant in the capacity of attorney, accountant, or advertising, public relations or financial adviser, and whose activities are limited to the performance of his duties in the course of such employment; (iv) any person regularly employed as an officer or employee of the issuer or any of its subsidiaries who is not otherwise a participant; or (v) any officer or director of, or any person regularly employed by, any other participant, if such officer, director or employee is not otherwise a participant.

(c) Filing of information required by Schedule 14B. (1) No solicitation subject to this section shall be made by any person other than the management of an issuer unless at least five business days prior thereto, or such shorter period as the Commission may authorize upon a showing of good cause therefor, there has been filed, with the Commission and with each national securities exchange upon which any security of the issuer is listed and registered, by or on behalf of each participant in such solicitation, a statement in duplicate containing the information specified by Schedule 14B.

(2) Within five business days after a solicitation subject to this section is made by the management of an issuer, or such longer period as the Commission may authorize upon a showing of good cause therefor, there shall be filed, with the Commission and with each national securities exchange upon which any security of the issuer is listed and registered, by or on behalf of each participant in such solicitation, other than the issuer, a statement in duplicate containing the information specified by Schedule 14B.

(3) If any solicitation on behalf of management or any other person has been made, or if proxy material is ready for distribution, prior to a solicitation subject to this section in opposition thereto, a statement in duplicate containing the information specified in Schedule 14B shall be filed by or on behalf of each participant in such prior solicitation, other than the issuer, as soon as reasonably practicable after the commencement of the solicitation in opposition thereto, with the Commission and with each national securities ex

change on which any security of the issuer is listed and registered.

(4) If, subsequent to the filing of the statements required by subparagraphs (1), (2), and (3) of this paragraph, additional persons become participants in a solicitation subject to this section, there shall be filed, with the Commission and each appropriate exchange, by or on behalf of each such person a statement in duplicate containing the information specified by Schedule 14B, within three business days after such person becomes a participant, or such longer period as the Commission may authorize upon a showing of good cause therefor.

(5) If any material change occurs in the facts reported in any statement filed by or on behalf of any participant, an appropriate amendment to such statement shall be filled promptly with the Commission and each appropriate exchange.

(6) Each statement and amendment thereto filed pursuant to this paragraph shall be part of the official public files of the Commission and for purposes of this regulation shall be deemed a communication subject to the provisions of § 240.14a-9.

(d) Solicitations prior to furnishing required written proxy statement. Notwithstanding the provisions of Rule 14a3(a) ($240.14a-3 (a)), a solicitation subject to this section may be made prior to furnishing security holders a written proxy statement containing the information specified in Schedule 14A (§ 240.14a101) with respect to such solicitation: Provided, That

(1) The statements required by paragraph (c) of this section are filed by or on behalf of each participant in such solicitation.

(2) No form of proxy is furnished to security holders prior to the time the written proxy statement required by Rule 14a-3 (a) (§ 240.14a-3 (a)) is furnished to security holders: Provided, however, That this subparagraph (2) shall not apply where a proxy statement then meeting the requirements of Schedule 14A (§ 240.14a-101) has been furnished to security holders by or on behalf of the person making the solicitation.

(3) At least the information specified in Items 2(a) and 3(a) of the statement required by paragraph (c) of this section to be filed by each participant, or an appropriate summary thereof, is included in each communication sent or

given to security holders in connection with the solicitation.

(4) A written proxy statement meeting the requirements of this regulation is sent or given to security holders at the earliest practicable date.

(e) Solicitations prior to furnishing required written proxy statement; filing requirements. Three copies of any soliciting material proposed to be sent or given to security holders prior to the furnishing of the written proxy statement required by § 240.14a-3(a) shall be filed with the Commission in preliminary form, at least five business days prior to the date definitive copies of such material are first sent or given to security holders, or such shorter period as the Commission may authorize upon a showing of good cause therefor.

(f) Application of this section to annual report. Notwithstanding the provisions of § 240.14a-3 (b) and (c), three copies of any portion of the annual report referred to in § 240.14a-3 (b) which comments upon or refers to any solicitation subject to this section, or to any participant in any such solicitation, other than the solicitation by the management, shall be filed with the Commission as proxy material subject to S$ 240.14a-1 to 240.14a-11. Such por

tion of the annual report shall be filed with the Commission in preliminary form at least five business days prior to the date copies of the report are first sent or given to security holders.

(g) Application of § 240.14a-6. The provisions of paragraphs (c), (d), (e), (f) and (g) of § 240.14a-6 shall apply to the extent pertinent, to soliciting material subject to paragraphs (e) and (f) of this section.

(h) Use of reprints or reproductions. In any solicitation subject to this section, soliciting material which includes, in whole or part, any reprints or reproductions of any previously published material shall:

(1) State the name of the author and publication, the date of prior publication, and identify any person who is quoted without being named in the previously published material.

(2) Except in the case of a public official document or statement, state whether or not the consent of the author and publication has been obtained to the use of the previously published material as proxy soliciting material.

(3) If any participant using the previously published material, or anyone on

his behalf, paid, directly or indirectly, for the preparation or prior publication of the previously published material, or has made or proposes to make any payments or give any other consideration in connection with the publication or republication of such material, state the circumstances.

(Sec. 14, 48 Stat. 895; 15 U.S.C. 78n) [21 FR. 579, Jan. 26, 1956, as amended at 31 F.R. 212, Jan. 7, 1966; 32 F.R. 20964, ec. 29, 1967; 33 F.R. 2993, Feb. 15, 1968]

§ 240.14a-12 Solicitation prior to furnishing required proxy statement.

(a) Notwithstanding the provisions of Rule 14a-3(a) (§ 240.14a-3(2)), a solicitation (other than one subject to Rule 14a-11 ( 240.14a-11)) may be made prior to furnishing security holders a written proxy statement containing the information specified in Schedule 14A (§ 240.14a-101) with respect to such solicitation if

(1) The solicitation is made in opposition to a prior solicitation or an invitation for tenders or other publicized activity, which if successful, could reasonably have the effect of defeating the action proposed to be taken at the meeting;

(2) No form of proxy is furnished to security holders prior to the time the written proxy statement required by Rule 14a-3(a) (§ 240.14a-3 (a)) is furnished to security holders: Provided, however, That this subparagraph (2) shall not apply where a proxy statement then meeting the requirements of Schedule 14A (§ 240.14a-101) has been furnished to security holders by or on behalf of the person making the solicitation;

(3) The identity of the person or persons by or on whose behalf the solicitation is made and a description of their interests direct or indirect, by security holdings or otherwise, are set forth in each communication sent or given to security holders in connection with the solicitation, and

(4) A written proxy statement meeting the requirements of this regulation is sent or given to security holders at the earliest practicable date.

(b) Three copies of any soliciting material proposed to be sent or given to security holders prior to the furnishing of the written proxy statement required by Rule 14a-3 (a) (§ 240.14a-3(a)) shall be filed with the Commission in preliminary form at least 5 business days prior

to the date definitive copies of such material are first sent or given to security holders, or such shorter period as the Commission may authorize upon a showing of good cause therefor.

(Sec. 14, 48 Stat. 895; 15 U.S.C. 78n) [31 F.R. 212, Jan. 7, 1966]

§ 240.14a-101

Schedule 14A. Information required in proxy statement.' NOTES: A. Where any item calls for information with respect to any matter to be acted upon and such matter involves other matters with respect to which information is called for by other items of this schedule, the information called for by such other items shall also be given. For example, a merger, consolidation, or acquisition or disposition of assets specified in Item 14, in which the security holders to be solicited will become or continue to be security holders of the surviving or acquiring company, shall be deemed to involve the election of directors if any person who will serve as a director of such company was not elected to such office by security holders of the issuer of the securities in respect of which proxies are to be solicited. In such case, Items 6 and 7 shall be answered with respect to each such person who will serve as a director of the surviving or acquiring company.

B. Where any item calls for information with respect to any matter to be acted upon at the meeting, such item need be answered in the management's soliciting material only with respect to proposals to be made by or on behalf of the management of the issuer.

C. Except as otherwise specifically provided, where any item calls for information for a specified period in regard to directors, officers or other persons hoiding specified positions or relationships, the information shall be given in regard to any person who held any of the specified positions or relationships at any time during the period. However, information need not be included for any portion of the period during which such person did not hold any such position or relationship provided a statement to that effect is made. Item 1. Revocability of proxy. State whether or not the person giving the proxy has the power to revoke it. If the right of revocation before the proxy is exercised is limited or is subject to compliance with any formal procedure, briefly describe such limitation or procedure.

Item 2. Dissenters' rights of appraisal. Outline briefly the rights of appraisal or similar rights of dissenters with respect to any matter to be acted upon and indicate any statutory procedure required to be followed by dissenting security holders in order to perfect such rights. Where such rights may be exercised only within a limited time after the date of adoption of a proposal, the filing of a charter amendment or other simi

130 F.R. 14046, Nov. 6, 1965.