The staff of the SEC’s Division of Corporation Finance has announced a significant policy shift in Proxy Rules Revised C&DI Question 126.06 regarding voluntary Notices of Exempt Solicitation under Exchange Act Rule 14a-103. While Rule 14a-6(g)(1) requires persons who engage in a solicitation pursuant to Exchange Act Rule 14a-2(b)(1) and beneficially own over $5 million of the class of securities that is the subject of the solicitation to file these notices, the staff had issued a previous iteration of this C&DI as recently as January 2025 in which it said it would not object to voluntary submissions by those owning shares below this threshold. The staff has announced it will now object to such voluntary submissions.
Question: Exchange Act Rule 14a-6(g)(1) requires any person who engages in a solicitation pursuant to Exchange Act Rule 14a-2(b)(1) and beneficially owns over $5 million of the class of securities that is the subject of the solicitation to furnish or mail to the Commission a statement containing the information specified in the Notice of Exempt Solicitation (Exchange Act Rule 14a-103) no later than three days after the date the written solicitation is first sent or given to any security holder. Rule 14a-103 requires the soliciting person to attach only those written soliciting materials “required to be submitted” pursuant to Rule 14a-6(g)(1). If a soliciting person is not subject to Rule 14a-6(g)(1), is it permitted to submit a Notice of Exempt Solicitation?
Answer: The requirements of Rule 14a-6(g)(1), including the submission of a Notice of Exempt Solicitation, only apply to a soliciting person who beneficially owns more than $5 million of the class of subject securities. The purpose of Rule 14a-6(g) is to provide for public notice of exempt solicitations by large shareholders. See Release No. 34-30849 (June 23, 1992). This rule was adopted over 30 years ago, before electronic filing on EDGAR became mandatory. Although the staff has previously not objected to voluntary submissions of Notices of Exempt Solicitation, it has observed in recent years that the vast majority of Notices of Exempt Solicitation are now voluntary submissions by persons who do not beneficially own more than $5 million of the class of subject securities, and the voluntary submission of such notices on EDGAR appears to be primarily a means to generate publicity. The staff is concerned by such widespread use of a Commission filing for reasons other than its intended purpose, and, accordingly, the staff will object to a voluntary submission of a Notice of Exempt Solicitation. [January 23, 2026]
This policy change is notable in light of the staff’s Statement Regarding the Division of Corporation Finance’s Role in the Exchange Act Rule 14a-8 Process for the Current Proxy Season (November 2025), which prompted speculation whether shareholder proposal proponents might increasingly turn to Notices of Exempt Solicitation as an alternative means of communicating with fellow shareholders.
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