November 20, 2023
Corp Fin Staff Updates Proxy and Schedule 14A CDIs: Counting Days
It is beginning to look a lot like proxy season! On Friday, the Corp Fin Staff issued one revised and five new Proxy Rules and Schedule 14A Compliance and Disclosure Interpretations.
The revised CDI is most definitely a proxy season classic. Question 126.03 addresses the very important topic of counting the “10 calendar day” period specified in Rule 14a-6 for the purpose of determining when a definitive proxy statement can be filed after filing a preliminary proxy statement. The importance of determining the tolling of the 10-calendar day period in Rule 14a-6 cannot be understated, because the Corp Fin Staff will not call a registrant to indicate that the Staff does not plan to review a preliminary proxy statement, so the registrant must wait the full 10 calendar days before filing and mailing a definitive proxy statement. In the revised CDI below, the Staff clarifies that the explanation of the 10 calendar day period in the interpretation assumes that the preliminary proxy statement is submitted before 5:30 eastern time and thus receives an EDGAR filing date for the date that the preliminary proxy statement was submitted:
Question 126.03
Question: How are “days” counted for purposes of the “10 calendar day” period in Rule 14a-6?
Answer: For purposes of calculating the “10 calendar day” period in Rule 14a-6, the date of filing is day one pursuant to Rule 14a-6(k). For example, if the preliminary proxy statement is filed on Friday, October 20, 2023, then Sunday, October 29, 2023, would be day ten for purposes of Rule 14a-6. The registrant may send the definitive proxy statement to security holders starting at 12:01 a.m. on October 30, 2023. The foregoing assumes that the preliminary proxy statement is submitted on or before 5:30 p.m. Eastern Time on October 20, 2023. If the filing is submitted after 5:30 p.m., the 10-day period does not start until the next business day, which would be Monday, October 23, 2023. See Rule 13(a)(2) of Regulation S-T. [November 17, 2023]
For more guidance regarding preliminary proxy statements, be sure to check out our Preliminary Proxy Statements Handbook.
– Dave Lynn