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Top Five Reminders for Reporting Annual Meeting Results
With annual meeting season in high swing, over the coming weeks, many public companies will be preparing Form 8-Ks to report their voting results. Specifically, Item 5.07 of the Form 8-K requires a public company to report the voting results for all matters submitted to a vote of security holders. Here are our top five reminders when preparing this year’s voting results 8-Ks:

Number 1 -- If your public company is holding a “say on frequency” vote on executive compensation, remember to disclose the company’s decision as to how often the company plans to conduct future “say on pay” votes. This decision may be included in the same Form 8-K reporting the voting results -- or it can be included in an amendment to the Form 8-K reporting the voting results (but not in a new Form 8-K; see
Question 121A.04 of the SEC’s C&DIs) that is filed no later than 150 calendar days after the end of the annual meeting (but no later than 60 calendar days prior to the deadline for submission of shareholder proposals for the 2018 annual meeting under Rule 14a-8). As noted in Question 121A.04, the company’s decision alternatively may be disclosed in a Form 10-Q (under Part II, Item 5 (“Other Information”)) filed in time to meet the deadline for the disclosure. Failure to provide this disclosure on a timely basis can result in the loss of Form S-3 eligibility, so it is important to report the company’s decision within the filing deadline. The SEC rules are designed to allow boards sufficient time following the annual meeting to evaluate and determine the company’s frequency (including, if needed, to engage with stockholders). However, in practice, some companies may determine that it is not necessary for their board of directors to undertake an extended discussion or take formal action to approve the future frequency decision if the shareholder vote heavily supported the frequency recommended by the board. As a result, many companies may include their frequency disclosure in the Form 8-K reporting the voting results, rather than in a later filing.

Number 2 -- Remember to update your cover page of the Form 8-K to include the information regarding emerging growth company status. The SEC recently adopted technical changes to its forms to provide a way for emerging growth companies to reflect information about their status on the cover page of their SEC filings, as discussed in our prior
blog. Even if your company is not an emerging growth company, the cover page should be updated with the new language in the SEC’s Form 8-K.

Number 3 – Remember to provide the number of votes cast “for” and “against” (or “withheld” for plurality voting), as well as the number of abstentions and broker non-votes for matters voted upon at the meeting. With respect to director elections, remember to report the voting results for each director nominee. Broker non-votes are not technically required to be reported for the “say on frequency” vote (see
Question 121A.03 of the SEC’s C&DIs), and typically there should be zero broker non-votes for matters considered routine, such as auditor ratification proposals, where brokers have the discretionary authority to vote uninstructed shares.

Number 4 – Pay attention to your voting standards. Voting result percentages are not required, but some companies opt to provide them. Although percentages can be helpful in communicating the level of support for items on the ballot at the annual meeting, they also can have the effect of highlighting the impact of abstentions and how they are being treated under the applicable voting standard. Companies that report voting result percentages should report them based on the applicable standard applied under state law and their governing documents, but should be aware that third parties may calculate the percentages differently. For example, the proxy advisory firm Institutional Shareholder Services does not count abstentions in determining whether matters received a majority of votes cast, in order to facilitate comparisons among voting results at different companies. The denominator used in each calculation depends on the voting standard for each proposal. Also, the way you report your results will depend on the voting standard applicable to that matter – for example, “for”, “against” and “abstain” votes are reported for director elections with majority voting standards, while “for” and “withheld” votes are reported for director elections with a plurality voting standard.

Number 5 – File the Form 8-K on time. The deadline for reporting the voting results is four business days after the annual meeting. Day one of the four-business day filing period is the day after the date on which the shareholder meeting ends. See
Question 121A.01 of the SEC’s C&DIs.

If you have any questions, please contact a member of Gibson Dunn’s Securities Regulation and Corporate Governance Group.

Maia Gez also contributed to this post.

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