Proxy Contest Toolkit: Advance Notice Bylaws, Response Plans, and Solicitation Materials

Document type: Toolkit Practice area: Corporate — Governance Jurisdiction: United States (federal and state) Last reviewed: 5 September 2026

How to use this toolkit

Two principles.

The audience is your own shareholders, not the activist. Every tool here is ultimately about what the top twenty holders will conclude.

Most of the outcome is determined before the activist appears. Tools 1 through 4 are ordinary-year work, and a company that runs them meets a campaign with its strongest arguments already addressed. Tools 5 onward are response.

Tool 1 — Activist self-assessment scorecard

Run annually. Build the deck the activist would build.

SELF-ASSESSMENT — [Company] — [Date] — PRIVILEGED

PERFORMANCE
  TSR 1yr ___% 3yr ___% 5yr ___%   Peer median ___ / ___ / ___
  Index ___ / ___ / ___
  ** Where we trail, the explanation a skeptical analyst would
     accept: ______________________ **

SUM OF THE PARTS
  Segment | Revenue | EBITDA | Comparable multiple | Implied value
  Sum of parts $______  vs. enterprise value $______
  ** Gap: ______% **
  If material: separation costs ___ dis-synergies ___ tax
  leakage ___ — or a PLAN

CAPITAL ALLOCATION  (the richest source of activist material)
  Acquisition | Year | Price | Realized return vs. underwriting
  Buybacks: $____ , average price ____ vs. current ____
  Dividend policy · capex vs. depreciation

MARGINS by segment vs. closest comparable operators
  Segment | Ours | Comparable | Gap | Explanation

BOARD
  Director | Tenure | Skills vs. our strategy | Other boards |
  ** Would this director survive head-to-head against a credible
     outside nominee? **  [Universal proxy makes this the
     operative question.]

COMPENSATION: realized pay vs. performance · peer positioning ·
metric selection · anything an adviser would flag

GOVERNANCE FEATURES AN ADVISER WOULD CRITICIZE
  [ ] Classified board  [ ] Supermajority  [ ] No special meeting
  [ ] Dual class without sunset  [ ] Unresponsive to prior votes

** TOP THREE VULNERABILITIES **
 1. ______  Remediation: ______  Owner: ______  By: ______
 2. ______
 3. ______
Presented to the board on: ______   Action taken: ______

Annotation. The board line and the closing block are the tool. Under universal proxy, shareholders evaluate individual directors, so "would this person survive a head-to-head comparison" is now a concrete governance question rather than an abstraction. And a scorecard that produces no board action is worse than none — the company pays for the same findings twice, once in the assessment and again in the campaign.

Tool 2 — Advance notice bylaw provisions

Review and amend in an ordinary year. Amendments after a 13D or a nomination are defensive measures evaluated as such.

ADVANCE NOTICE — PROVISIONS TO INCLUDE

TIMING
  Notice not earlier than ___ days and not later than ___ days
  before the anniversary of the prior annual meeting.
  Adjustments where the meeting date moves by more than ___ days.

INFORMATION ABOUT THE NOMINATING HOLDER
 [ ] Name, address, record and beneficial ownership
 [ ] ** Derivative positions ** — options, swaps, and any
     instrument with value derived from the stock
 [ ] ** Short positions and hedges **
 [ ] Any pledge of shares
 [ ] ** Arrangements or understandings with any other person **
     regarding the nomination or the securities
 [ ] Any performance-related fee arrangement tied to the stock
 [ ] Holding period and intent to remain a holder through the
     meeting

INFORMATION ABOUT EACH NOMINEE
 [ ] Full biographical and background information
 [ ] All information required in a proxy statement for a nominee
 [ ] ** Any compensation or other arrangement between the
     nominee and the nominating holder or its affiliates
     ("golden leash") **
 [ ] Relationships with the company, its competitors, customers,
     or suppliers
 [ ] Written consent to be named and to serve
 [ ] Completed D&O questionnaire and representation agreement

REPRESENTATIONS
 [ ] Whether the holder intends to solicit proxies
 [ ] Compliance with the universal proxy requirements

UPDATE OBLIGATION: information updated as of the record date.

** LIMITS: requirements must be reasonable. Provisions that are
   unreasonable in scope, or adopted or applied inequitably in
   the face of a specific threat, have been invalidated. **

Annotation. The golden leash and derivative disclosure items are the ones that change campaigns. A nominee compensated by the fund based on the stock's performance is a different nominee, and a holder whose economic exposure is hedged is a different holder — and shareholders should know both. Neither is disclosed unless the bylaw requires it.

Tool 3 — Response team roster and communications protocol

ACTIVISM RESPONSE TEAM — maintained current, reviewed annually

Role | Name | Mobile | Alternate
CEO · CFO · General Counsel · Head of IR · Head of HR ·
Head of Communications
Outside counsel (securities/governance) ______
Delaware counsel ______
Financial adviser ______
** Proxy solicitor ** ______
Communications firm ______
Stock surveillance ______

ACTIVATION: any of — 13D or 13G-to-13D conversion · surveillance
alert · letter from a holder · nomination notice · press inquiry
about a holder
Activated by: ______  Convenes within: ____ hours

COMMUNICATIONS APPROVAL PROTOCOL — active from activation

** EVERY communication reasonably calculated to result in the
   procurement of a proxy is a SOLICITATION ** under 15 U.S.C.
   § 78n(a) and 17 C.F.R. Part 240 — must be filed, and is
   subject to the antifraud provision.

REQUIRES APPROVAL BY [named approver] BEFORE RELEASE
  Press releases · shareholder letters · investor presentations ·
  website content · ** executive social media (including
  personal accounts) ** · conference remarks · employee
  communications about the campaign · customer and supplier
  messaging

RULES
  · Data, not tone
  · ** No personal attacks on the activist ** — reads as
    entrenchment, alienates holders who agree on substance
  · Correct errors ONCE, precisely, with the source
  · Do not litigate every characterization
  · One message, consistent internally and externally

SPOKESPEOPLE: ______  All others route to: ______
FILING: who files, and when: ______

Annotation. The executive social media line is the one that produces real problems. A chief executive who responds to an activist's post at eleven at night has made an unfiled solicitation and set a tone the board did not approve — and it happens in a meaningful share of campaigns.

Tool 4 — Tabletop scenario

ACTIVISM TABLETOP — half day — no advance materials

SCENARIO
 Tuesday 8:00 a.m. — [Fund] files a Schedule 13D disclosing 6.5%
 and a purpose including "engaging with the board regarding
 board composition and strategic alternatives."

RUN THE FIRST 72 HOURS IN REAL TIME
  Who convenes the team, and how long does it take?
  Who reads the filing and produces the assessment?
  Who briefs the board, in what form, by when?
  What goes out publicly, approved by whom?
  Who calls the top ten holders — and has anyone met them?

INJECTS
 10:00 — the CEO is on a plane
 11:30 — a reporter calls before the board has been briefed
 13:00 — a divisional president posts about it on LinkedIn
 15:00 — a top-five holder's PM calls: "we think they have a
         point about the coatings segment"
 Day 2 — counsel notes the advance notice deadline is 11 days
         away
 Day 3 — two other funds appear to have been accumulating

DEBRIEF — the findings this reliably surfaces
 [ ] Nobody was sure who approves public statements
 [ ] The response team list was stale
 [ ] Nobody had read the advance notice bylaws in three years
 [ ] There is no vote model and no relationship with the
     governance teams at the largest holders
 [ ] ** The self-assessment identified two of these arguments a
     year ago and nothing was done **

FIX LIST: item | owner | by
REPEAT: every 2 years, and after material change.
** Include the directors. **

Annotation. The last debrief item is the one that recurs at nearly every company and the reason to include directors in the exercise. A board that has role-played a campaign built on its own known weaknesses tends, afterwards, to authorize the remediation it had been deferring.

Tool 5 — Schedule 13D assessment

13D ASSESSMENT — [Filer] — filed [date] — PRIVILEGED

THE POSITION
  Shares ______  Percentage ____%  Acquired between ______
  Average price $______  vs. current $______
  Source of funds: ______
  ** Derivative positions disclosed: ______ **
  Economic exposure vs. voting position: ______

** ITEM 4 — PURPOSE ** (read this most carefully)
  Discloses plans regarding:
  [ ] Board composition   [ ] Strategic alternatives / sale
  [ ] Extraordinary transaction   [ ] Capital allocation
  [ ] Charter or bylaw changes   [ ] Management changes
  [ ] Nothing specific ("evaluating")
  Verbatim: ______________________
  ** What this tells us about the campaign's shape: ______ **

THE FILER
  Prior campaigns, outcomes, and typical settlement terms: ______
  Typical hold period: ______  Fund size and concentration: ____
  Known nominee bench: ______

** GROUP ANALYSIS ** (investigate before asserting — Tool 6)
  Other accumulators identified: ______
  Common prime broker / timing overlap: ______
  Prior joint filings or campaigns: ______

CALENDAR
  Advance notice window: ______ to ______
  Nomination deadline: ______  Record date: ______
  Annual meeting: ______

IMMEDIATE ACTIONS
 [ ] Team convened  [ ] Board briefed in writing (24 hrs)
 [ ] Neutral acknowledgment issued
 [ ] Surveillance and register work started
 [ ] Substantive assessment scheduled (privileged)

Annotation. Item 4 is where the filing tells you what campaign you are in, and it is skimmed. A purpose disclosing plans regarding board composition means nominations are coming and the calendar is now the governing document; one that says only "evaluating" may be a position seeking engagement rather than seats.

Tool 6 — Group analysis worksheet

GROUP ANALYSIS — 15 U.S.C. § 78m(d)(3) — PRIVILEGED

THE STANDARD: a group exists where two or more persons act as a
partnership, syndicate, or ** other group for the purpose of
acquiring, holding, or disposing of securities. ** Parallel
conduct is not enough; an agreement to act in concert is.
** The rules have been amended on coordinated conduct and
communications — research currently, not from memory. **

EVIDENCE
 Fund | Position | Accumulation dates | Prime broker | Filings |
 Prior joint campaigns | Public statements together
 -----|----------|--------------------|--------------|

PATTERN INDICATORS
 [ ] Overlapping purchase windows
 [ ] Same executing counterparty
 [ ] Coordinated public statements or appearances
 [ ] Prior joint 13D filings
 [ ] Shared advisers or nominees
 [ ] Positions each conveniently below 5%

ASSESSMENT
  Strength of the evidence: strong / suggestive / thin
  If a group existed, disclosure was due: ______
  Shares acquired after that date: ______

** DECISION **
 [ ] Assert — only where evidence is strong or the disclosure
     deficiency is independently material
 [ ] ** Preserve and hold ** — a group claim that fails publicly
     reads as a technical attack by a board with no answer on
     the merits, costs credibility with institutions, and
     invites a counterclaim about our own disclosure

Annotation. The boxed decision is the discipline. Companies reach for the group claim because it is the only aggressive move available early, and a failed one is genuinely costly. Develop the record, preserve it, and hold it — accumulation frequently continues, and the analysis becomes stronger with time and free of charge.

Tool 7 — Nomination notice review

NOMINATION NOTICE REVIEW — [Holder] — received [date]

TIMELINESS
  Window: ______ to ______   Received: ______   Timely?  Y / N

HOLDER INFORMATION — required by bylaw §___
 [ ] Record and beneficial ownership
 [ ] ** Derivative positions ** — disclosed?  What do they show?
 [ ] Short positions / hedges — ** does economic exposure match
     the voting position? **
 [ ] Arrangements with other persons
 [ ] Intent to solicit / universal proxy representations

EACH NOMINEE
 Nominee | Bio complete? | Proxy-statement info? | ** Golden
 leash disclosed? ** | Relationships with company/competitors |
 Consent to serve | Questionnaire returned
 --------|---------------|----------------------|

DEFICIENCIES IDENTIFIED
 Item | Bylaw provision | Material or technical?

** DECISION — BE CONSERVATIVE **
 [ ] Accept
 [ ] ** Notify the holder in writing of the deficiency with an
     opportunity to cure ** (preferred where curable)
 [ ] Reject — only where the deficiency is material and the
     record is clean

 ** Rejecting a valid nomination on a strained reading is the
    second most dangerous thing a company can do: it becomes
    litigation lost in public and hands the activist a
    governance argument. **

 ** DO NOT amend the bylaws now. **

NOMINEE ASSESSMENT (for the vote model)
 Nominee | Relevant experience | Independence | Credibility to
 institutions | ** Which of OUR directors do they beat? **

Annotation. The last row is the one that matters most under universal proxy. The question is no longer whether the dissident's slate beats the company's slate; it is which individual matchups the company loses. A dissident nominee with directly relevant operating experience, opposite a long-tenured director without it, is a seat the company should assume it loses.

Tool 8 — Vote model template

VOTE MODEL — [Company] — updated weekly

TOP 50 HOLDERS
 Rank | Holder | Shares | % | Type (index/active/retail/insider)
 | Likely disposition | What would change it | Relationship
 owner | ** Who decides (governance team / PM) ** | Last contact

SUMMARY
  Committed to us ____%   Leaning ____%   Undecided ____%
  Leaning dissident ____%  Committed dissident ____%
  Retail (est. turnout ____%) ____%

** SEAT-BY-SEAT MODEL — universal proxy **
 Seat | Our nominee | Their nominee | Our nominee's
 vulnerability | Assessment
 -----|-------------|---------------|-------------------
 [Model each seat separately. Shareholders can mix.]
 ** Weakest incumbent: ______  Strongest challenger: ______ **

MECHANICS
  Record date ______  Shares outstanding ______
  Quorum requirement ______  Broker non-vote treatment ______
  Employee plan shares ______ (pass-through rules: ______)
  ** Standard: plurality in a contested election — highest
     vote-getters win regardless of majority support **

PROXY ADVISERS
  Firm | Submission made | Draft report | Recommendation |
  Estimated votes influenced

GAP TO WIN EACH SEAT: ______  Path: ______

Annotation. The seat-by-seat block is what makes this a modern vote model. Pre-universal-proxy models tracked a single slate-versus-slate number; that number is now close to meaningless. Identify the weakest incumbent early, because the honest answer frequently reshapes the settlement discussion.

Tool 9 — Institutional engagement plan and proxy adviser submission

ENGAGEMENT PLAN

PRIORITY 1 — top 10 holders, contacted within 2 weeks
 Holder | Contact (PM) | Contact (governance team) | Meeting
 date | Their concerns | What would change their vote | Follow-up

MEETING STRUCTURE
  Who attends (include a director for governance discussions)
  Materials: segment economics · capital allocation record with
  REALIZED returns · board skills matrix · steps taken and WHEN
  ** Ask questions and listen. Holders frequently say exactly
     what would change their vote. **

PRIORITY 2 — holders 11-30
PRIORITY 3 — retail program via the solicitor

PROXY ADVISER SUBMISSION — OUTLINE

1. THE COMPANY AND THE STRATEGY — two pages, plain
2. PERFORMANCE — TSR against a defensible peer set, with the
   explanation for any gap
3. ** CAPITAL ALLOCATION RECORD ** — acquisitions with realized
   returns, buyback timing, capex discipline
4. SEGMENT ECONOMICS — and the answer to the sum-of-the-parts
   argument, with separation costs, dis-synergies, tax leakage
5. ** THE BOARD ** — skills matrix mapped to the strategy;
   refreshment history; why each nominee is the right person
   [Adverse reports now target INDIVIDUAL incumbents — address
    the vulnerable director's record specifically]
6. GOVERNANCE — against the firm's published policy, point by
   point
7. ** WHAT WE HAVE DONE AND WHEN ** — dates matter; action
   after the campaign began is discounted
8. THE ACTIVIST'S STRONGEST ARGUMENT, engaged directly

RULES: submit early enough to be considered · respond to a draft
report factually and promptly · ** never attack the advisers
publicly **

Annotation. Item 7 is the one companies get wrong. A remediation announced two weeks after the 13D reads as a concession; the same change made a year earlier reads as governance. That is the entire argument for the annual self-assessment in Tool 1, expressed as a line in a submission.

Tool 10 — Settlement term sheet

SETTLEMENT TERM SHEET — [Company] / [Fund]

** THE TEST BEFORE NEGOTIATING: would we appoint these people if
   the fund did not exist? **

1. BOARD COMPOSITION
   Fund designee(s): ______  Mutually agreed independent: ______
   Directors not standing for re-election: ______
   Board size after: ______
   ** COMMITTEE MEMBERSHIP: ______ ** (the hardest term; without
   it a director has limited influence)

2. STANDSTILL
   Duration: ______ (tie to the next nomination window)
   [ ] No nominations, proposals, or solicitations
   [ ] Accumulation cap ____%
   [ ] ** No group formation with others **
   [ ] No litigation; no proxy contest support for third parties

3. VOTING COMMITMENT
   [ ] Director elections only  (ordinary)
   [ ] All matters  (aggressive; draws adviser criticism)

4. ** INFORMATION AND CONFIDENTIALITY **
   [ ] May the designee share board information with the Fund?
       Y / N — scope: ______
   [ ] Fund bound by confidentiality: ______
   [ ] ** Fund's trading restrictions acknowledged ** — a
       designee's knowledge may be attributed to the Fund,
       materially limiting its ability to trade
   [Address expressly. This is the recurring conflict.]

5. NON-DISPARAGEMENT — mutual, through ______
6. TERMINATION AND FALL-AWAY — if the designee resigns, is not
   renominated, or the Fund's position falls below ____%
7. EXPENSE REIMBURSEMENT — $______ (a negotiated line item)
8. COMPANY COMMITMENTS — strategic review of ______, with a
   timetable of ______
9. ANNOUNCEMENT — joint or separate; language agreed

CALENDAR ON EXECUTION: standstill expiry ______ · next
nomination window ______ · commitment milestones ______

Annotation. Section 4 is the term most often left vague and most often the source of the next dispute. If the designee may share information, the fund is receiving material non-public information and its trading is constrained — which some funds discover only afterward and then resent. Say what is permitted, and let the fund make an informed choice about whether to take the seat at all.

Tool 11 — Rights plan decision memorandum

RIGHTS PLAN — BOARD DECISION MEMORANDUM — PRIVILEGED

** Enhanced scrutiny applies. The board must identify a
   legitimate threat after REASONABLE INVESTIGATION and respond
   PROPORTIONATELY. This memorandum is the record. **

1. THE THREAT IDENTIFIED
   Facts: accumulation of ____% by ______ over ______
   Pattern suggesting further accumulation: ______
   ** Is the threat creeping control, or is it a shareholder
      advocating for change? ** ______________
   [A plan aimed at the second is on much weaker ground.]

2. THE INVESTIGATION
   Advice received from: counsel ______ financial adviser ______
   Analysis considered: ______
   Directors' deliberation: [dates, attendance, questions asked]

3. ALTERNATIVES CONSIDERED
   [ ] No action  [ ] Engagement only  [ ] Charter/bylaw measures
   [ ] Plan at a higher threshold  [ ] Plan with a shorter term
   Why the chosen response is proportionate: ______

4. TERMS
   Threshold ____%  Term ______  Exempt holders ______
   Qualifying offer / redemption provisions ______

5. ** WHAT WE ARE NOT DOING **
   [ ] Not moving the meeting date
   [ ] Not expanding the board mid-contest
   [ ] Not amending bylaws after a nomination
   [ ] Not delaying the vote count
   [Action taken for the primary purpose of impeding the
    shareholder franchise requires a COMPELLING justification,
    and is rarely upheld.]

6. INSTITUTIONAL REACTION ASSESSED: ______
   [A measure that succeeds legally and alienates the base has
    lost the campaign that matters.]

Independent committee used?  Y / N — why: ______
Approved: ______  Date: ______

Annotation. Section 2 is the memorandum's purpose. Enhanced scrutiny asks what the board did before it acted, and a board that adopted a plan on a banker's recommendation in a forty-minute call has no answer. Document the questions asked and the alternatives weighed, contemporaneously — reconstructing it later is not the same thing and looks like it.

Tool 12 — Post-campaign debrief

CAMPAIGN DEBRIEF — [Fund] — concluded [date]

OUTCOME: settled / contested and won / contested and lost /
withdrawn

COST
  Legal $____  Financial adviser $____  Solicitor $____
  Communications $____  Fund expense reimbursement $____
  ** Senior management months: ____   Board meetings: ____ **

WHAT THE ACTIVIST ARGUED, AND WHETHER IT LANDED
 Argument | Was it right? | Did holders find it persuasive? |
 What we did

** DID OUR SELF-ASSESSMENT IDENTIFY THIS? **
 [ ] Yes, and we acted → the argument failed
 [ ] ** Yes, and we did not act ** → this is the finding
 [ ] No → why did the assessment miss it?

ENGAGEMENT
  Which holders moved, and why: ______
  Governance teams we had never met before this: ______
  Proxy adviser recommendation and the reasons given: ______

WHAT WE WOULD DO DIFFERENTLY: ______________________

COMMITMENTS MADE — and the calendar
 Commitment | Owner | Due | Status
 ** The most common cause of a SECOND campaign is a company
    that settled the first and did not do what it said. **

REGISTER NOW: who owns us after the campaign: ______
NEXT SELF-ASSESSMENT: ______ (fold in the campaign's arguments)

Annotation. The boxed self-assessment question is the whole point of the debrief. In most campaigns the company's own analysis had already identified the winning arguments and the board had deferred acting on them. Writing that down, once, with the cost of the campaign next to it, is the most reliable way to ensure the next set of findings gets acted on.