On April 8, 2026, the SEC’s Division of Corporation Finance issued a no-action letter addressing a structural conflict that arises for companies incorporated in the Netherlands, listed on a U.S. exchange, but without foreign private issuer (FPI) status, leaving them fully subject to U.S. domestic proxy rules under Regulation 14A. The conflict stems from a timing mismatch: Dutch law fixes the record date at 28 days before a shareholder meeting, while Rule 14a-16(a) requires distributing the Notice of Internet Availability of Proxy Materials at least 40 calendar days out. A company could technically satisfy U.S. proxy rules by abandoning notice and access and instead mailing full printed sets of proxy materials, but for a company with a large, dispersed shareholder base, that approach is far more expensive and impractical. The Division of Corporation Finance granted relief so long as the company (i) files its definitive proxy statement and annual report with the SEC and posts them on its website at least 40 days before the meeting; (ii) issues a press release announcing the availability of materials, the planned notice distribution date, and how shareholders can request paper copies; and (iii) distributes notice cards within five business days after the record date. This framework for conditioned relief mirrors the framework that the Division of Corporation Finance applied in a substantially similar no-action letter to another Dutch-incorporated, U.S.-listed company without FPI status in April 2025. These letters continue a pattern of Division relief addressing home-country/U.S. proxy rule conflicts. In a January 2014 no-action letter, the Division of Corporation Finance granted no-action relief to a Curaçao-incorporated, U.S.-listed company without FPI status that permitted the company to bypass the preliminary proxy filing requirement under Rule 14a-6(a) for routine shareholder votes that Curaçao law mandated.

These letters take on added significance given the SEC’s recent focus on FPI eligibility. Currently, a non-U.S. company falls outside FPI eligibility when, as of the last business day of its most recently completed second fiscal quarter, U.S. residents directly or indirectly hold of record more than 50% of its outstanding voting securities and the company fails any prong of the business contacts test: a majority of its executive officers or directors are U.S. citizens or residents, more than 50% of its assets are located in the U.S., or its business is administered principally in the U.S. As described in our June 2025 memo “SEC Considers Narrowing Foreign Private Issuer Definition,” the SEC is considering narrowing this definition. If adopted, more foreign companies could find themselves subject to U.S. proxy rules and other domestic reporting requirements. While these no-action letters demonstrate the Division of Corporation Finance’s willingness to accommodate practical solutions where home-country law conflicts with U.S. proxy rules, they should not be read as softening the impact of reclassification. Losing FPI status could impose far broader burdens that would likely not be mitigated through no-action relief, potentially including required adoption of U.S. GAAP, shortened filing deadlines for annual reports, new quarterly and current reporting obligations, application of selective disclosure rules under Regulation FD, and stricter NYSE and Nasdaq corporate governance requirements. No-action letters are fact-specific, and any company seeking to rely on this framework should obtain its own relief based on its own facts.