Securities Lawyer's Deskbook
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General Rules and Regulations
promulgated
under the
Securities Exchange Act of 1934





Rule 14a-2 -- Solicitations to Which Rule 14a-3 to Rule 14a-15 Apply


Rules 14a-3 to 14a-15, except as specified, apply to every solicitation of a proxy with respect to securities registered pursuant to section 12 of the Act, whether or not trading in such securities has been suspended. To the extent specified below, certain of these sections also apply to roll-up transactions that do not involve an entity with securities registered pursuant to section 12 of the Act.
  1. Rules 14a-3 to 14a-15 do not apply to the following:

    1. Any solicitation by a person in respect to securities carried in his name or in the name of his nominee (otherwise than as voting trustee) or held in his custody, if such person-

      1. Receives no commission or remuneration for such solicitation, directly or indirectly, other than reimbursement of reasonable expenses,

      2. Furnishes promptly to the person solicited (or such person's household in accordance with Rule 14a-3(e)(1)) a copy of all soliciting material with respect to the same subject matter or meeting received from all persons who shall furnish copies thereof for such purpose and who shall, if requested, defray the reasonable expenses to be incurred in forwarding such material, and

      3. In addition, does no more than impartially instruct the person solicited to forward a proxy to the person, if any, to whom the person solicited desires to give a proxy, or impartially request from the person solicited instructions as to the authority to be conferred by the proxy and state that a proxy will be given if no instructions are received by a certain date.

    2. Any solicitation by a person in respect of securities of which he is the beneficial owner;

    3. Any solicitation involved in the offer and sale of securities registered under the Securities Act of 1933: Provided, That this paragraph shall not apply to securities to be issued in any transaction of the character specified in paragraph (a) of Rule 145 under that Act;

    4. Any solicitation with respect to a plan of reorganization under Chapter 11 of the Bankruptcy Reform Act of 1978, as amended, if made after the entry of an order approving the written disclosure statement concerning a plan of reorganization pursuant to section 1125 of said Act and after, or concurrently with, the transmittal of such disclosure statement as required by section 1125 of said Act;

    5. [Removed and Reserved]

    6. Any solicitation through the medium of a newspaper advertisement which informs security holders of a source from which they may obtain copies of a proxy statement, form of proxy and any other soliciting material and does no more than:

      1. Name the registrant,

      2. State the reason for the advertisement, and

      3. Identify the proposal or proposals to be acted upon by security holders.

  2. Rules 14a-3 to 14a-6 (other than Rule 14a-6(g)), Rule 14a-8, and Rule 14a-10 to Rule 14a-15 do not apply to the following:

    1. Any solicitation by or on behalf of any person who does not, at any time during such solicitation, seek directly or indirectly, either on its own or another's behalf, the power to act as proxy for a security holder and does not furnish or otherwise request, or act on behalf of a person who furnishes or requests, a form of revocation, abstention, consent or authorization. Provided, however, That the exemption set forth in this paragraph shall not apply to:

      1. The registrant or an affiliate or associate of the registrant (other than an officer or director or any person serving in a similar capacity);

      2. An officer or director of the registrant or any person serving in a similar capacity engaging in a solicitation financed directly or indirectly by the registrant;

      3. An officer, director, affiliate or associate of a person that is ineligible to rely on the exemption set forth in this paragraph (other than persons specified in paragraph (b)(1)(i) of this section), or any person serving in a similar capacity;

      4. Any nominee for whose election as a director proxies are solicited;

      5. Any person soliciting in opposition to a merger, recapitalization, reorganization, sale of assets or other extraordinary transaction recommended or approved by the board of directors of the registrant who is proposing or intends to propose an alternative transaction to which such person or one of its affiliates is a party;

      6. Any person who is required to report beneficial ownership of the registrant's equity securities on a Schedule 13D, unless such person has filed a Schedule 13D and has not disclosed pursuant to Item 4 thereto an intent, or reserved the right, to engage in a control transaction, or any contested solicitation for the election of directors;

      7. Any person who receives compensation from an ineligible person directly related to the solicitation of proxies, other than pursuant to Rule 14a-13;

      8. Where the registrant is an investment company registered under the Investment Company Act of 1940, an "interested person" of that investment company, as that term is defined in section 2(a)(19) of the Investment Company Act;

      9. Any person who, because of a substantial interest in the subject matter of the solicitation, is likely to receive a benefit from a successful solicitation that would not be shared pro rata by all other holders of the same class of securities, other than a benefit arising from the person's employment with the registrant; and

      10. Any person acting on behalf of any of the foregoing.

    2. Any solicitation made otherwise than on behalf of the registrant where the total number of persons solicited is not more than ten; and

    3. The furnishing of proxy voting advice by any person (the "advisor") to any other person with whom the advisor has a business relationship, if:

      1. The advisor renders financial advice in the ordinary course of his business;

      2. The advisor discloses to the recipient of the advice any significant relationship with the registrant or any of its affiliates, or a security holder proponent of the matter on which advice is given, as well as any material interests of the advisor in such matter.

      3. The advisor receives no special commission or remuneration for furnishing the proxy voting advice from any person other than a recipient of the advice and other persons who receive similar advice under this subsection; and

      4. The proxy voting advice is not furnished on behalf of any person soliciting proxies or on behalf of a participant in an election subject to the provisions of Rule 14a-12(c); and

    4. Any solicitation in connection with a roll-up transaction as defined in Item 901(c) of Regulation S-K in which the holder of a security that is the subject of a proposed roll-up transaction engages in preliminary communications with other holders of securities that are the subject of the same limited partnership roll-up transaction for the purpose of determining whether to solicit proxies, consents, or authorizations in opposition to the proposed limited partnership roll-up transaction; provided, however, that:

      1. This exemption shall not apply to a security holder who is an affiliate of the registrant or general partner or sponsor; and

      2. This exemption shall not apply to a holder of five percent 5% or more of the outstanding securities of a class that is the subject of the proposed roll-up transaction who engages in the business of buying and selling limited partnership interests in the secondary market unless that holder discloses to the persons to whom the communications are made such ownership interest and any relations of the holder to the parties of the transaction or to the transaction itself, as required by Rule 14a-6(n)(1) and specified in the Notice of Exempt Preliminary Roll-up Communication . If the communication is oral, this disclosure may be provided to the security holder orally. Whether the communication is written or oral, the notice required by Rule 14a-6(n) and Rule 14a-104 shall be furnished to the Commission.

    5. Publication or distribution by a broker or a dealer of a research report in accordance with Rule 138 or Rule 139 during a transaction in which the broker or dealer or its affiliate participates or acts in an advisory role.

    6. Any solicitation by or on behalf of any person who does not seek directly or indirectly, either on its own or another's behalf, the power to act as proxy for a shareholder and does not furnish or otherwise request, or act on behalf of a person who furnishes or requests, a form of revocation, abstention, consent, or authorization in an electronic shareholder forum that is established, maintained or operated pursuant to the provisions of Rule 240.14a-17, provided that the solicitation is made more than 60 days prior to the date announced by a registrant for its next annual or special meeting of shareholders. If the registrant announces the date of its next annual or special meeting of shareholders less than 60 days before the meeting date, then the solicitation may not be made more than two days following the date of the registrant's announcement of the meeting date. Participation in an electronic shareholder forum does not eliminate a person's eligibility to solicit proxies after the date that this exemption is no longer available, or is no longer being relied upon, provided that any such solicitation is conducted in accordance with this regulation.

Regulatory History


44 FR 68769, Nov. 29, 1979, as amended at 51 FR 42059, Nov. 20, 1986; 52 FR 21936, June 10, 1987; 57 FR 48290, Oct. 22, 1992; 59 FR 63684, Dec. 8, 1994; 65 FR 65736, 65749, Nov. 2, 2000; 70 FR 44722, 44829, Aug. 3, 2005; 72 FR 4148, 4166, Jan. 29, 2007; 73 FR 4450, 4458, Jan. 25, 2008.

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