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NFG Rejects GAMCO Proxy Access Nomination

As previously reported, on November 10, 2016 GAMCO filed the required 14N with the SEC to make proxy access nominations. National Fuel Gas Company (NFG) received notification from GAMCO that it intended to nominate one director pursuant to the company’s proxy access bylaws.  (November 16 CGIC Blog entry: GAMCO Files 14N – Proxy Access Nomination)

On November 23, NFG filed a Form 8-K detailing the rejection of GAMCO’s nominee.  In the filing the company detailed the rejection was due to the following by-law provision: “A stockholder that seeks to use the Company’s proxy access By-Law provision must make certain representations and warranties to the Company. If these representations are not correct, the stockholder is not eligible to use proxy access. These representations include that an Eligible Stockholder:

(i)Acquired the Proxy Access Request Required Shares in the ordinary course of business and not with the intent to change or influence control of the Corporation, and does not presently have such intent”

NFG cited a number of filings and communications from GAMCO, dating back to 2014, that led to the determination that GAMCO failed to meet this provision of the company’s by-laws and, therefore, the company would not include the proposal in the proxy materials: “Based on GAMCO’s past conduct and current actions, the Board has determined that (1) GAMCO possessed an intent to change or influence control of the Company when acquiring some if not all of the Proxy Access Request Required Shares; and (2) GAMCO continues to have the intent to change or influence control of the Company.”

On November 28th, GAMCO filed an amended 13D stating: “Lance Bakrow informed GAMCO this morning that he has decided to withdraw his name as a candidate for Director of National Fuel Gas Company. GAMCO will not pursue Proxy Access.”

For now it appears this issue is over, leaving us still awaiting the first use of proxy access.