March 23, 2015

Proxy Access: BofA Becomes 10th to Adopt Own Bylaws

As noted in this Reuters article, Bank of America filed this Form 8-K to note that it has adopted a proxy access bylaw with a formula of 3%/3-year formula – along with a group cap of 20 shareholders & nomination cap of 20% of board seats. As noted in this piece, BofA conferred with the NY Comptroller’s office and other pension funds before making this move – even though the proponent at BofA was retail holder John Harrington.

Hat tip to Simpson Thacher’s Yafit Cohn for pointing out that BofA is the 10th company to adopt their own proxy access bylaws:

1. CF Industries Holdings (5%, 3 yrs, cap of 20%, group of 20)
2. General Electric (3%, 3 yrs, cap of 20%, group of 20)
3. HCP (5%, 3 yrs, cap of 20%, group of 10)
4. Boston Properties (3%, 3 yrs, cap of 25%, group of 5)
5. YUM! Brands (3%, 3 yrs, cap of 20%, group of 20)
6. Arch Coal (5%, 3 yrs, cap of 20%, group of 20)
7. Prudential Financial (3%, 3 yrs, cap of 20%, group of 20)
8. Cabot Oil & Gas (5%, 3 yrs, cap of 20%, group of 10)
9. Priceline Group (5%, 3 yrs, cap of 20%, group of 20)
10. Bank of America‎ (3%, 3 yrs, cap of 20%, group of 20)

Then there is Big Lots and Whiting Petroleum, which have reached agreements with the NY Comptroller’s office to adopt bylaws with the thresholds 3%, 3 yrs, cap of 25%, no group limit. These companies have not yet filed bylaw amendments.

Also note that Citigroup has filed its definitive proxy statement, in which the board supports the shareholder proponent’s proxy access proposal as earlier announced.

TIAA-CREF’s Bess Joffe Added – Tomorrow’s Webcast: “Proxy Access: The Halftime Show”

Tune in tomorrow for the webcast – “Proxy Access: The Halftime Show” – during which Morrow’s Tom Ball, Davis Polk’s Ning Chiu, Covington & Burling’s Keir Gumbs, Gibson Dunn’s Beth Ising, TIAA-CREF’s Bess Joffe and Sullivan & Cromwell’s Glen Schleyer will analyze how companies decided to handle the new wave of proxy access shareholder proposals – and how investors might react to that.

As this blog notes, a few companies have left shareholder proposals regarding special meetings off their preliminary proxy statements. These special meeting proposals are akin to proxy access proposals in that they were initially challenged under Rule 14a-8(i)(9) but then the SEC said it would take “no view” in this area and the initial Staff responses were reversed (see this Corp Fin reconsideration letter to the Illinois Tool Works proponent)…

SEC Meets on Wednesday to Adopt Reg A+ Rules

The SEC has announced that it will hold an open Commission meeting on Wednesday to adopt the Reg A+ rules as required by Section 401 of the JOBS Act. This memo summarizes the comments received by the SEC on its proposal. See this McGuireWoods memo

Speaking of comments, the ABA’s Business Law Section has submitted a comment letter on the S-K portion of the Corp Fin’s Disclosure Effectiveness project…

– Broc Romanek