Yesterday's discussion of an amicus brief filed by 17 law professors in a case challenging SB 826, California's female director quota mandate, reminded me of a related question that I raised a few years ago:
In reviewing some recent proxy bylaw provisions, I noted that some refer specifically to solicitations "by the Board of Directors". See, for example, this bylaw provision recently adopted by Monsanto Company. This reference to solicitations by the Board of Directors makes some sense in light of the instruction in SEC Rule 14a-4(a) that the form of proxy "indicate in bold-face type whether or not the proxy is solicited on behalf of the registrant's board of directors or, if provided other than by a majority of the board of directors, shall indicate in bold-face type on whose behalf the solicitation is made".
However, other SEC rules suggest that proxies are solicited by the registrant or even by management. For example, Item 4 of Schedule 14A instructs: " If the solicitation is made by the registrant, so state." See also Rules 14a-3(b)(13) and 14a-4(c)(3). Rules 14a-7(a)(1)(ii) & (2)(ii)(A) and 14a-12(c)(1) each refer to solicitations on "management's behalf".
This may seem to be a petty quibbling, but it does raise an interesting question - are proxies solicited by the Board, by the company or by management?
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