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E-Proxy – An Inside Counsel’s Perspective
Michael McGawn
Chipotle Mexican Grill, Inc.
(303) 222-5978
Discussion Outline
1) What is “mandatory e-proxy”?2) Making the call: to print or not to print?3) E-proxy in practice4) Thoughts on 2009
What is “mandatory e-proxy”?
• As of January 1, 2008, e-proxy was mandatory for large accelerated filers
• As of January 1, 2009, e-proxy will be mandatory for all registrants• Rule 14a-16(a) says that proxy materials must be posted on the
Internet, and a Notice of Internet Availability of Proxy Materials must be sent– Use of this electronic delivery exclusively is the “Notice only” model
• Rule 14a-16(n) allows registrants to, IN ADDITION, use traditional hard copy delivery (in which case the 40-day advance mailing requirement does not apply)– The “Full Set Delivery” model
• Can use different delivery models for different shareholders
Deciding how to handle e-proxy.
• Corporate strategy and philosophy• Makeup of shareholder base (retail vs. institutional)• Document prep timeline• Cost considerations
E-proxy in practice.
• Posting the materials– Issuer posts proxy materials on the Internet on or before the day
the Notice is sent and leaves them posted until conclusion of the meeting
• Choice of service providers• Usability considerations
• Delivering the notice– Issuer sends notice to shareholders regarding the electronic
availability of its proxy materials at least 40 calendar days prior to the shareholder meeting
• If using e-proxy only for street name holders, must provide the information required on the Notice to nominees in sufficient time for them to prepare, print and send the Notice at least 40 calendar days prior
– Don’t forget to file the notice as Additional Soliciting Material
E-proxy in practice.
• Delivering the notice (cont’d)– Notice must include:
• Required legend regarding availability of materials and ability to request paper or e-mail copies
• Date, time and location of meeting• Clear and impartial identification of each separate matter
to be voted on, and issuer recommendation• List of materials available on the Internet• Toll-free number, email address and web site where
shareholder can request materials• Any control/ID numbers needed to access a proxy card• Instructions on how to access the proxy card (but
shareholder cannot execute a proxy without having access to proxy statement)
• Information about attending the meeting and voting in person
E-proxy in practice.
E-proxy in practice.
• Providing hard copies upon request– Issuer must respond to shareholder request for paper or e-mail
copies of proxy materials at no charge to shareholder prior to the meeting and for one year after the meeting
• If request is made prior to meeting, issuer must respond by U.S. first class mail (or other reasonably prompt means) within three business days of request
• May (but are not required to) include with the Notice mailing a postage-paid reply card for proxy material requests
• Getting the vote– Issuer must provide means to vote on the Internet web site (e-
voting, printable proxy card, or toll-free telephone number)– Issuer may send a paper or e-mail proxy card without including
proxy materials, at least 10 calendar days after Notice was sent
E-proxy in practice.
• Shareholder reception
E-proxy in practice.
• Shareholder use of the materials– Voting results:2008 (198,800,755 votes eligible): 2007 (198,612,240 votes
eligible):
E-proxy in practice.
• Cost outcome
Thoughts on 2009.
• More scrutiny of costs
• More thought about different providers– In-house fulfillment
• Implications of 2009 as “Year 2”