The Morgan Lewis alert also discusses how Regulation E-Delivery, if adopted, would change the delivery of proxy materials and prospectuses. For proxy statements, it explains:

Currently, Exchange Act Rule 14a-16 generally permits issuers to satisfy proxy delivery obligations by either mailing a “full set” of proxy materials (either in paper or electronically for shareholders who previously opted in) or using the SEC’s “notice-and-access” model, under which shareholders receive a paper Notice of Internet Availability directing them to proxy materials posted online.

If adopted, Reg E-Delivery would eliminate the paper Notice of Internet Availability as a standalone delivery method and move issuers to a default e-delivery of proxy materials through Reg E-Delivery’s permitted delivery methods. Shareholders could opt to receive a full set of proxy materials in paper, which would be the only alternative to e-delivery under the proposed rules. Reg E-Delivery also would eliminate the longstanding prohibition on using the notice-and-access framework for business combination proxy solicitations, thereby extending electronic delivery to transactions that historically required delivery of a full paper set of proxy materials.

For prospectuses:

Reg E-Delivery does not replace Rule 172 (i.e., “access equals delivery”), which permits many issuers and other offering participants to satisfy the final prospectus delivery obligation via the filing of the final prospectus on EDGAR. The adoption of Reg E-Delivery would provide another avenue for issuers for e-delivery, including with respect to offerings that are excluded from relying on Rule 172, such as offerings on Form S-8 and the corresponding requirement to distribute Section 10(a) prospectuses. In this regard, the proposed rules may significantly ease the burden on issuers to provide paper copies to former employees and other participants in employee benefit plans who do not have access to company email.

Under the proposed rules, an issuer could satisfy many Securities Act delivery obligations electronically without first obtaining affirmative consent, provided that

– the investor has supplied an electronic address;
– the issuer has provided the required disclosures regarding electronic delivery; and
– the investor has not opted out of electronic delivery.

Note that Reg E-Delivery would not change substantive Securities Act prospectus delivery obligations. Rather, it would change the way those obligations may be satisfied. Issuers could choose to continue delivering paper prospectuses, and shareholders would retain the right to receive paper copies free of charge.

– Meredith Ervine