2509004 Informal Interpretation

I wanted to confirm my analysis as to the applicability of 16 C.F.R. 802.21 in a scenario where a shareholder has beneficial ownership of voting securities and an irrevocable proxy to vote securities held by third parties.

I am representing a natural person who (i) has beneficial ownership of less than 25% of Company A voting securities and (ii) holds an irrevocable proxy to vote Company A voting securities held by other shareholders, which in aggregate with (i), would exceed 25% voting power. For purposes of assessing whether the natural person exceeds the “25%” threshold in 16 C.F.R. 801.1(h)(4), my understanding is that the percentage of voting securities would only include those voting securities that the natural person beneficially owns (whether directly or indirectly), and not those beneficially owned by a third party that the individual can vote via an irrevocable proxy. Can you please confirm you agree?