Division Of Corporation Finance Agrees Not To Object To Foreign Issuer’s Use Of Rule 14a-16 Under Certain Circumstances

On April 8, 2026, the Division of Corporation Finance (the “Division”) of the U.S. Securities and Exchange Commission (the “SEC”) agreed that it would not object to a foreign issuer’s use of “notice and access” pursuant to Rule 14a-16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to furnish proxy materials, even though the issuer is unable to comply with the timing requirements of the Rule due to conflicting local law requirements. The foreign issuer agreed to comply with certain conditions in connection with its reliance on Rule 14a-16, as detailed below. 

Elastic, N.V. (the “Company”) is a private limited liability company incorporated under Dutch law, and is subject to Exchange Act reporting requirements applicable to U.S. domestic companies because it does not meet the requirements to be a foreign private issuer under Exchange Act Rule 3b-4(c). Specifically relevant here, the Company is subject to the proxy rules in Regulation 14A in connection with shareholder meetings. Exchange Act Rule 14a-3 requires that a company furnish proxy materials to its shareholders either concurrently with, or prior to, the solicitation of their vote at a shareholder meeting; Rule 14a-16 permits companies to meet this requirement by furnishing shareholders with a Notice of Internet Availability of Proxy Material (the “Notice”) at least 40 calendar days before the meeting, instead of providing printed proxy materials. However, under Dutch law, the record date for determining the shareholders entitled to attend and vote at any such meeting is set 28 days before the meeting. This means that the Company will not have a list of shareholders entitled to notice of a meeting subsequent to the 40^th calendar day before the meeting, as required to take advantage of “notice and access” pursuant to Rule 14a-16.

Rule 14a-16 is intended to provide an easy, cost-effective means of providing meeting information and proxy materials to shareholders, allowing companies to avoid the time and expense of printing these documents. The Division Staff agreed that it would not object to the Company’s reliance on Rule 14a-16, assuming that it (i) files its definitive proxy statement with the SEC and makes these materials available on its website at least 40 calendar days in advance of the meeting, (ii) issues a press release announcing the availability of these materials, its intent to use notice and access, the anticipated date of the Notice, and how shareholders can request hard copies of the materials, at least 40 calendar days in advance of the meeting, and (iii) distributes the Notice as quickly as possible after the record date (planned to be expedited to five business days after such date, at additional cost to the Company).

In its letter to the Division, the Company highlighted the facts that a very large majority of its shareholders vote electronically, and very few request paper copies of proxy materials. In addition, any paper copies requested are generally sent within 72 hours of such request. Thus, notice and access is an efficient and cost-effective way of reaching the Company’s shareholders, thereby benefitting both the Company and these shareholders (who ultimately bear the costs of paper proxy materials) while providing all parties, even those who request paper copies, with sufficient time to review the materials.

Read the Elastic, N.V. letter here.

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