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Proxy Proposals

While the brand-new rule 14a-11 is getting most of the proxy access publicity, an amendment to Exchange Act Rule 14a-8(i)(8) also requires in-house attention. The amended rule allows certain shareholders to submit proposals regarding the corporate board nomination process in proxy materials. Previously, companies could refuse to include shareholders' proposals.

Diane Frankle, a partner at DLA Piper, says 14a-8(i)(8) could be just as disruptive to corporate boards as 14a-11. The rule specifically requires companies to include in their proxy materials investor proposals related to developing a process in the company's bylaws for including shareholder nominees in the statements. It still allows companies to reject proposals if they are designed to limit any part of 14a-11.

Eligible shareholders must own a stake totaling at least $2,000 or at least
1 percent of the company's market value, whichever is less, for a minimum of one continuous year.

The Securities and Exchange Commission put a stay on 14a-8(i)(8) when it stayed 14a-11, pending the resolution of litigation brought by the U.S. Chamber of Commerce and Business Roundtable. As with 14a-11, prognosticators anticipate the rule will go into effect, largely unchanged, within six to eight months.

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