On May 20, 2009, the SEC voted to propose amendments to the proxy rules to enhance the rights of shareholders to nominate directors for corporate boards, including boards of investment companies. Under the proposed amendments, Rule 14a-11 under the Exchange Act would be created to allow eligible shareholders to have their nominees included in a company’s proxy materials. In addition, the proposed amendments would modify Rule 14a-8 under the Exchange Act to allow eligible shareholders to include proposals in a company’s proxy materials that would amend provisions of a company’s governing documents concerning the company’s director nomination procedures or other director nomination disclosure provisions. A shareholder submitting a proposal under modified Rule 14a-8 would be subject to the current eligibility requirements of the Rule.
Under proposed Rule 14a-11, a shareholder would be eligible to have their nominee included in a fund’s proxy materials if the shareholder owns: (i) at least 1% of the voting securities of a fund with net assets of $700 million or more; (ii) at least 3% of the voting securities of a fund with net assets between $75 million and $700 million; or (iii) at least 5% of the voting securities of a fund with net assets of $75 million or less. Shareholders would be allowed to aggregate holdings to meet these ownership thresholds. In addition to the ownership requirements, under proposed Rule 14a-11, a shareholder would also have to: (i) have held their shares for at least one year; (ii) sign a statement declaring their intent to continue to hold their shares through the annual meeting at which directors are elected; and (iii) certify that they are not holding their shares for the purpose of gaining control of the company or to gain more than a minority representation on the board of directors. An eligible shareholder would only be allowed to have one nominee or a number of nominees that would represent up to 25% of a company’s board of directors included in the company’s proxy materials. A nominating shareholder would be required to file a new Schedule 14N with the SEC that would include the information and certifications required under proposed Rule 14a-11. A company would not be liable for any false or misleading statements in information provided by the nominating shareholder unless the company knows or has reason to know the information is false or misleading.
Comments on the proposals will be due 60 days after publication in the Federal Register.