Tekla Life Sciences Investors - Omission of Shareholder Proposal
March 1, 2019
February 27, 2019
Mr. Christopher P. Harvey, Esq.
One International Place, 40th Floor
100 Oliver Street
Boston, MA 02110-2605
Dear Mr. Harvey:
In a letter dated January 9, 2019, on behalf of Tekla Life Sciences Investors (the “Fund”), you requested confirmation from the staff of the Division of Investment Management that it would not recommend enforcement action to the Securities and Exchange Commission (the “Commission”) if a shareholder proposal and supporting statement (the “Proposal”) submitted by Kenneth Steiner (the “Proponent”) is excluded from the proxy materials for the Fund’s 2019 Annual Meeting (the “Proxy Materials”). The Proposal provides:
RESOLVED, shareholders ask that our Company take the steps necessary to reorganize the Board of Directors into one class with each director subject to election each year. The Board of Detectors [sic] has the means to adopt this proposal in one year.
The Fund maintains that the Proposal may be excluded from the Proxy Materials: (1)pursuant to Rule 14a-8(i)(8)(ii) because it would remove a director from office before his or her term expired; and (2) pursuant to Rule 14a-8(i)(3) because the Supporting Statement contains statements that are materially false or misleading.
There appears to be some basis for your view that the Fund may exclude the Proposal under Rule 14a-8(i)(8)(ii) to the extent it could, if implemented, disqualify directors previously elected from completing their terms on the board. It appears, however, that this defect could be cured if the Proposal were revised to provide that it will not affect the unexpired terms of directors elected prior to the Proposal’s implementation. Accordingly, unless the Proponent provides the Fund with a proposal revised in this manner, within seven calendar days after receiving this letter, we will not recommend enforcement action to the Commission if the Fund omits the Proposal from its proxy materials in reliance on Rule 14a-8(i)(8)(ii).
We are unable to concur in your view that the Fund may exclude the Proposal from the Proxy Materials under Rule 14a-8(i)(3). We are unable to conclude that you have demonstrated objectively that the proposal is materially false or misleading. Accordingly, we cannot assure the Fund that we would not recommend Enforcement action if the Fund excludes the Proposal from its Proxy Materials in reliance on Rule 14a-8(i)(3).
Attached is a description of the informal procedures the Division follows in responding to shareholder proposals. Please contact IMShareholderproposals@sec.gov if you have any questions.
/s/ Raymond A. Be
Raymond A. Be