代理人Access Gets New Life

The decades-long battle to give investors more say in who stands for election to a company’s board of directors is heating up again.

In the past week or so, shareholders of at least two companies, MEMC Electronic Materials and Textron, have submitted shareholder proposals for the 2012 proxy calling on the companies to adopt a so-called proxy access policy, according to The U.S. Proxy Exchange (USPX), an advocacy group for small investors.

两种情况下的非绑定分辨率都基于USPX推出的模型提案。It calls on companies to permit shareholders to nominate one director, or if greater, a number of nominations equal to as many as 12 percent of the current number of board members, if they have continuously held 1 percent of the company’s stock for two years, or if they are part of a group of at least 100 shareholders, each of whom has owned at least a $2,000 stake in the company for one year.

The Securities and Exchange Commission last year proposed a rule, which a federal court subsquently disallowed, that would have required investor groups to own at least 3 percent of the company’s stock for at least three years, and capped the number of seats they could gain to 25 percent.

Activist and gadfly Kenneth Steiner, a Great Neck, NY, investment advisor, sponsored both resolutions, although he did have help from others, including fellow gadfly and retired aerospace engineer John Chevedden, with the MEMC proposal. Keep in mind that Steiner is something of a serial filer of proxy proposals, having sponsored the fourth largest number of shareholder resolutions during the 2008 through 2010 period, according to Proxy Monitor, a scorekeeper sponsored by the Manhattan Institute.

Currently, a company’s board of directors has sole responsibility for nominating directors. In a majority of cases, they can be elected if they receive one “yes” vote.

为了让投资者寻求选举自己的董事，他们必须推出一个非常昂贵的代理战斗。

投资者有许多企图在某些条件下获得至少三十年的某些条件提名自己的候选人，但无济于事。

第14A-11条提案，规则14A-11，在某些情况下，公司将要求公司在公司代理材料中纳入股东主任。然而，去年夏天由美国上诉法院腾出，这让委员会的行为“任意和反复无常”在制定规则时。

美国证券交易委员会决定不寻求盐土earing of the decision or seek Supreme Court review. Instead, it chose a different track.

When it adopted Rule 14a-11, it also adopted amendments to Rule 14a-8, the shareholder proposal rule. Under those amendments, it gave eligible shareholders permission to require companies to include proxy access resolutions in company proxy materials. The goal was to make it easier for shareholders to pursue proxy access on a company-by-company basis. In contrast, Rule 14a-11 would have required all companies to offer proxy access. The MEMC and Textron proposals followed the guidelines recently laid out by the United States Proxy Exchange (USPX), a grassroots shareholder activist group for individual investors.

“第一年是一项考验，”美国代表交流执行董事Glyn A. Holton说，该提案是愿意的代理访问提案国的模型提案。“如果他们是成功的，”Holton补充说：“将有更多[代理访问分辨率]。”

He stresses the key to the proxy access resolutions is that they have safeguards to prevent using this device to seek change of control at the company. This is why he does not plan to seek ties with activist hedge fund managers. His group also plans to target companies with governance policies they disagree with.

MEMC和TEXTRON决议都批评两家公司的赔偿政策。

The MEMC resolution points out that more than half of active board members hold no shares in the company. It also points out that the CEO’s options, which are not contingent on performance, were worth over $14 million in 2009 and that the company superseded Compensation Committee guidelines in 2010 to award the CEO a discretionary payment. It also noted that the stock fell 63 percent in the year ending November 9, 2001.

在Textron的情况下，该提案断言，基于现金的长期赔偿不会将执行绩效与长期股东权益价值联系起来。它补充说，潜在的3900万美元支付给首席执行官“并不是公司股东利益”，并指出，在上次选举中，12名董事中的五票收到了至少17％的负面投票，其中两个人超过了两项30％。

Meanwhile, on Thursday, ISS disclosed the results of comments it received from the investment and corporate community regarding all of its planned proxy policies for 2012. Regarding proxy axccess, it point outs ISS’s updated policy is designed to retain flexibility to address the wide variety of approaches to the issue.

This is shaping up to be a more interesting proxy season than the SEC’s court defeat earlier this year would’ve led one to expect.