On November 6, 2023, the Securities and Exchange Commission's Division of Corporation Finance launched a new online portal through which companies must submit all future Rule 14a-8 shareholder proposal no-action requests (“NARs"). The portal must also be used by shareholder proponents or their representatives and by companies to submit any responsive or supplemental correspondence relating to a Rule 14a-8 NAR. The new portal replaces the prior process, which the Division initiated in 2008, of submitting NARs and supplemental correspondence by email to [email protected]. We understand that the email address will continue to be monitored, but should not be used for any correspondence that is intended to be considered in connection with a Rule 14a-8 NAR.
The portal is accessible at https://www.sec.gov/forms/shareholder-proposal. The portal includes a web form that requires a submitting party to provide the following information: (i) whether the request is an initial request or supplemental correspondence; (ii) the identity of the submitting party (i.e. “company" or “proponent"); (iii) the submitting party's contact information, and if submitted by a company, the option to provide the proponent's contact information; (iv) the company's anticipated proxy print date; (v) the text of the proposal's “resolved clause"; and (vi) the Rule 14a‑8 bases for exclusion asserted, using a checkbox interface. The portal then allows a submitting party to upload relevant documents, such as a traditional NAR letter, in PDF, DOC, or DOCX format. The portal calls for different information when supplemental information is being submitted.
Importantly, the portal does not transmit the submitted documents to any counterparty. Instead, the submitting party must check a box to attest that it has sent the correspondence to any relevant counterparties by email and/or mail.
Going forward, any company wishing to submit either an NAR or provide supplemental correspondence should ensure that the submission is made via the online portal in order to be considered properly submitted.
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Thank you to Spencer Bankhead (bar admission pending) in our Orange County office for his help on this update.