Alert March 08, 2018

NYSE Eliminates Proxy Statement Paper Filing Requirement for Proxy Materials

Summary

The Securities and Exchange Commission has approved a New York Stock Exchange proposal to eliminate the requirement to send hard copies of proxy materials to the NYSE if the proxy materials are available on the SEC’s EDGAR system.

NYSE Amendments

The NYSE proposed amending its rules to eliminate its requirement that companies provide hard copies of proxy materials that were available on the SEC’s EDGAR system in a proposal published by the SEC in December 2017. The text of the proposed amendments was provided in an exhibit to the proposal. The proposed NYSE amendments include several exceptions for cases where a company’s proxy materials are not available, or are available only in part, on EDGAR. The SEC has approved the NYSE amendments.

The principal change is that NYSE rules will no longer require listed companies to provide hard copies of proxy materials to the NYSE, as long as the proxy materials are included in an electronic filing available on the SEC’s EDGAR system.

If proxy materials are available on EDGAR but were “not filed pursuant to Schedule 14A” under the Securities Exchange Act of 1934, the company must provide the NYSE with information sufficient to identify the filing by one of the means specified in Section 204.00(A) not later than the date on which the material is sent, or given, to any security holders. This applies, for example, to proxy materials filed on Form S-4 and to foreign private issuers that file proxy materials under Form 8-K or Form 6-K.

Exceptions: Hard Copies Required

As amended, NYSE rules will continue to require notice of an electronic filing, or hard copies of materials filed with the SEC, to be sent to the NYSE in certain cases. These include the following:

  • If proxy materials are not included in their entirety (together with the proxy card) in an SEC filing available on EDGAR, NYSE rules continue to require the company to provide hard copies of any materials not available on EDGAR.
  • If SEC rules do not require electronic filing via EDGAR, the company must provide one hard copy of any such SEC filing, including pursuant to a hardship exemption granted by the SEC of Form 6-K filings.

If NYSE rules require the company to submit hard copies of proxy materials pursuant to either of these provisions, the company must file three hard copies (reduced from six by the amendment) with the NYSE not later than the date on which the material is physically or electronically delivered to shareholders.