Before closing the books on the 2017 proxy season, companies that held a shareholder vote on the frequency of future say-on-pay votes should confirm that they timely disclosed on an Item 5.07 Form 8-K their decision regarding how frequently they will hold future say-on-pay votes.

Item 5.07(a) of Form 8-K requires companies to disclose the voting results of each matter submitted to a shareholder vote within four business days of the shareholders meeting. When companies hold an advisory shareholder vote to determine the frequency of future say-on-pay votes (the so-called “say-on-frequency” vote), Item 5.07(d) requires companies to disclose their decision, in light of the say-on-frequency vote, as to how often they will include a say-on-pay vote in their proxy materials. Because say-on-frequency votes are required to be held only once every six years, this additional Item 5.07(d) requirement generally is not on annual disclosure checklists.

While a company may disclose its say-on-pay frequency determination in the initial Item 5.07 Form 8-K publishing the voting results of the shareholders meeting, it is permitted to delay disclosure of its determination until the filing of an amendment to such Form 8-K. Such amendment must be filed no later than 150 calendar days following the shareholders meeting, but in no event later than 60 calendar days prior to the Rule 14a-8 shareholder proposal deadline set forth in the proxy statement filed in connection with the meeting.

Given that Item 5.07 is not carved out from the Form S-3 requirement to have timely filed all required reports during the prior 12 months, a company that fails to disclose its say-on-pay frequency determination either in its original Item 5.07 Form 8-K or in a timely filed amendment to such Form 8-K could lose its Form S-3 eligibility. As a result, companies that have held say-on-frequency votes this year but have not yet disclosed their frequency determination should ensure a determination is made and disclosed within the time frames outlined above.

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For additional information regarding annual meeting filing requirements, please see our March 14, 2017, client alert “Annual Meeting Proxy Statement Reminders.”

This memorandum is provided by Skadden, Arps, Slate, Meagher & Flom LLP and its affiliates for educational and informational purposes only and is not intended and should not be construed as legal advice. This memorandum is considered advertising under applicable state laws.

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