CONSTITUCIÓN DE LA EMPRESA

The notice only option may be used in connection with the delivery of proxy materials for all share- holder meetings other than business combination transactions. To adopt the notice only option, companies must (1) send a notice of internet availability of proxy materials to shareholders at least 40 days before the meeting date or the date that consents may be used to effect a corporate action if no meeting is scheduled, (2) post the proxy materials on a publicly-accessible internet website which meets certain criteria by the time the notice is first sent to shareholders and (3) provide shareholders with a voting method at the time the notice is first sent to shareholders. Companies can satisfy the final requirement by providing electronic voting platforms, a toll-free telephone number for voting or a downloadable, printable proxy card on a website. To avoid an instance where shareholders execute a proxy without having reviewed the proxy statement, the telephone number for voting of the proxy may not be included in the notice, though the telephone number may be posted to the website. The requirements related to this “notice and access” model of proxy material distribution are often referred to as the e-proxy rules.

Contents of the Notice of Internet Availability of Proxy Materials. The rules provide that the notice

is required to contain certain prominent legends and other information.See “Appendix D—Selected Contents of the Notice of Internet Availability of Proxy Materials” for a list of the information required in the notice.

Amendments to E-Proxy Rules. On February 22, 2010, the SEC issued amendments to the e-proxy

rules, which were intended to improve the notice and access model by providing issuers and other soliciting persons with additional flexibility in designing and preparing the notice of internet avail- ability of proxy materials and in providing explanatory materials to shareholders regarding how to access the proxy materials, request paper copies and vote. The amendments replace the SEC’s prior legend requirement for the notice of internet availability of proxy materials with a shorter legend and requirements to include the information described in “Appendix D—Selected Contents of the Notice of Internet Availability of Proxy Materials.” The amended rules do not specify the exact language or format to be used to present the information, allowing companies the flexibility to tailor the language as they desire.

Prior to the amendments to the e-proxy rules, no other information could accompany the notice of internet availability of proxy materials other than the notice of a shareholders meeting required by state law. Under the amended e-proxy rules, a company may include with the notice an explanation of the notice and access model and the reasons for the use of such process. The explanation, however, must be limited to the process of receiving or reviewing proxy materials and voting, and the amended rules continue to prohibit any statements intended to persuade shareholders to vote in a specific way or alter their preferred method of delivery. The notice must conform to plain English requirements and constitutes “other soliciting material” that must be filed with the SEC no later than the date on which the notice is first sent to shareholders.

Delivery of Proxy Card. A proxy card may only be sent to shareholders ten or more days after send-

ing the notice, though the proxy card may be sent before the end of the ten-day period if it is accom- panied by the proxy statement and annual report. If a company chooses not to send the proxy statement and annual report with the proxy card, another copy of the notice of internet availability of proxy materials must accompany the proxy card.

Delivery of Written Proxy Materials.Companies adopting the notice only option must send paper

copies of the proxy materials to shareholders upon request, free of charge. Shareholders have the right to make a permanent election to receive either paper or e-mail copies of proxy materials in connection with future proxy solicitations, and companies are required to record such elections. Shareholder requests to receive paper proxy materials must be fulfilled by first class mail or other reasonably prompt method of delivery within three business days, provided such request is received prior to the company’s meeting. Thereafter, companies are obligated to provide copies of the proxy materials for a period of one year after the date of the shareholders meeting or corporate action to which the materi- als relate, though the materials need not be sent within three business days nor by first class mail.

Design of the Publicly Accessible Website. All proxy materials identified in the notice must be made publicly accessible, free of charge, at the website address specified in the notice, which cannot be the SEC’s Electronic Data Gathering, Analysis and Retrieval (EDGAR) website, on or before the date that the notice is sent to shareholders. The materials must be presented on the website in a format or for- mats convenient for both reading online and printing on paper, and must remain available on that website through the conclusion of the shareholders meeting. As noted above, the website must provide shareholders with at least one method to execute proxies as of the time the notice is first sent to shareholders, such as an electronic voting platform, a toll-free telephone number for voting, or a print- able or downloadable proxy card on the website.

Website and E-mail Confidentiality. Companies must ensure that their website is designed such

that users remain anonymous, including the elimination of any cookies or tracking features. Compa- nies also may not use an e-mail address provided solely to request a copy of proxy materials for any purpose other than to send copies of those materials to shareholders.

Potential State Law Conflicts with E-Proxy Rules. Notwithstanding the mandatory e-proxy

requirement, many companies may continue to elect the full set delivery option to avoid potential con- flicts with state law that might occur if written proxy materials are not provided. One such state law conflict was addressed in 2008 when California eliminated its requirement that shareholders must first provide an unrevoked consent before companies could lawfully send annual reports and any accom- panying materials electronically to them. As a result, companies incorporated in California or having a principal executive office in California may now take advantage of the notice only model. Other state laws, however, may continue to conflict with the e-proxy rules. Readers are urged to discuss their specific situations with legal counsel to address any particular issues they may face as a result of the e-proxy rules.

E-Proxy Rules and ERISA Requirements.Companies that have company stock funds in their 401(k)

plans or maintain employee stock ownership plans should be aware that the notice and access model alone will not likely satisfy the requirements of the Employee Retirement Income Security Act (ERISA) regarding notice to participants of their voting rights. Therefore, such companies should work with their plan administrators to confirm that they are complying with ERISA notice requirements if they are using the notice and access model.

Suggested Actions for Companies Planning to Employ the Notice only Option. It is recommended

that companies planning to adopt the notice only option consider the following:

Š Determine whether it is appropriate to continue to use the full set delivery option initially to allow time to evaluate the notice only option and to assess other companies’ experience with the new regime.

Š Begin planning and complete the company’s proxy materials earlier than in the past because, among other things, the notice only option will require that the materials be posted not later than 40 days prior to the shareholders meeting. In addition, careful coordination will be required between the company and its proxy solicitor (if any) and intermediaries because companies will be required to supply intermediaries with the information required for intermediaries to prepare their own notices and post the proxy materials to their own website, which will add several days to the process (intermediaries are likely to require at least five days for the process involved in compiling and distributing their own notice of internet availability of proxy materials).

Š Review state laws that may conflict with the e-proxy rules with legal counsel before utilizing the new regime.

Š Many companies’ bylaws require that proxy materials be sent by mail. This is an appropriate time to update bylaws to provide for electronic notice. Companies are advised to consult with legal counsel regarding this matter.

Š Companies should make sure they have plans in place to comply with website anonymity require- ments, to answer questions from shareholders regarding the distribution of proxy materials elec- tronically and to process requests from intermediaries for proxy materials.