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Yesterday, Corp Fin’s Office of Mergers & Acquisitions issued a no-action letter to Goldman Sachs Group addressing a retail voting program modeled after the one Exxon established last year. Goldman outlined the terms of its “voting instruction plan” (VIP) in its no-action request. The terms of the VIP program are similar to Exxon’s plan, but this Goodwin blog highlights some matters that weren’t addressed in Exxon’s no-action letter:

– Enrollment in retail voting program permitted before a meeting-specific definitive proxy statement is furnished. The Division’s no-action relief extends beyond Rules 14a-4(d)(2) and (d)(3) to Rules 14a-3(a), 14a-4(f) and 14a-12(a)(2), which generally require investors to receive a definitive proxy statement before or together with a proxy card and regulate solicitations made before a definitive proxy statement is furnished. The practical effect is that program enrollment communications may be sent, and investors may enroll, before the definitive proxy statement for a particular meeting is furnished and outside a particular annual or special meeting proxy solicitation. Investors must still receive the definitive proxy statement before or at the same time as the related proxy card or voting instruction form.

– Participant information may be omitted from enrollment communications. The separate relief under Rule 14a-12(a)(1) concerns the requirement that pre-proxy solicitation communications identify the participants in a solicitation and describe their interests. Under the relief, that information will instead be included in each definitive proxy statement. Program enrollment communications would remain subject to the applicable Rule 14a-12 legend and filing requirements. As a practical matter, enrollment communications may focus on how the program operates and the choices available to investors without including the participant information in each communication.

– Tailored employee and alumni outreach, including internal-system enrollment for current employees. The request contemplates communications tailored to current employees and partners, former partners and other former employees, as well as enrollment by current employees through an internal company system. This would permit the issuer to use regular employee and alumni communications and an internal enrollment channel, rather than relying only on enrollment materials distributed through the vote processing agent. The Division specifically noted Goldman Sachs’ representations that communications to current employees would not state or imply that enrollment was a condition of employment or partnership, that enrollment would have no bearing on compensation or advancement potential, and that the company would implement reasonable measures designed to prevent abuse or misuse of current-employee enrollment status.

– Potential administrative and technological improvements. The request contemplates updates to the company’s program’s enrollment and processing mechanics as the program matures. These updates may include allowing a single enrollment form to cover multiple registered or beneficial accounts, enabling additional broker-dealers to participate through one vote-processing agent, and offering enrollment through a centralized or persistent portal. These features could simplify enrollment and expand access through additional intermediaries while maintaining the investor protections described in the request.

Here’s Goldman’s press release announcing the VIP program.

Update: Looks like a big week for retail voting programs.  Here’s a no-action letter that Tesla received for its program today.

– John Jenkins