Many public companies have held, or will hold, their second "say-on-pay frequency" vote at their 2017 annual shareholders' meeting. Companies generally must disclose the voting results of matters submitted to shareholders within four business days following the annual meeting of shareholders in a current report on Form 8-K under Item 5.07(b). Voting results may also be reported in a Form 10-Q or Form 10-K that is filed on or before the date that the Form 8-K is due.
Because the say-on-pay frequency vote is an advisory vote and nonbinding, companies must take action to determine the frequency of the vote (every one, two or three years) going forward. Item 5.07(d) of Form 8-K requires disclosure of "the company's decision in light of [the shareholder] vote as to how frequently the company will include a shareholder vote on the compensation of executives in its proxy materials ..." This disclosure is required even if the company included its recommendation for say-on-pay frequency in the proxy statement and shareholders supported the company's recommendation. Many companies make this disclosure in the post-meeting Form 8-K reporting voting results; however, Item 5.07(d) of Form 8-K allows companies up to 150 calendar days after the annual meeting to disclose their say-on-pay frequency determination, so long as the disclosure is made no later than 60 calendar days prior to the deadline for shareholder proposals for the next year's annual meeting of shareholders. If the voting results were disclosed in a Form 8-K without a say-on-pay frequency determination, the frequency determination must be later disclosed by amending that Form 8-K (by filing a Form 8-K/A), rather than by filing a new Form 8-K. If a company reported voting results on Form 10-Q or Form 10-K, the Item 5.07(d) disclosure can be made in a new Form 8-K under Item 5.07, rather than in an amendment to the Form 10-Q or Form 10-K. (See SEC Division of Corporation Finance, Compliance and Disclosure Interpretations, Exchange Act Form 8-K-Question 121A.04.)
In 2011, when the say-on-pay frequency disclosure rules were relatively new, hundreds of companies failed to timely make the Item 5.07(d) disclosure on the company's determination as to the frequency of their "say-on-pay" vote. Failure to timely make the Form 8-K disclosures required under Item 5.07 can be problematic for companies planning on raising capital, because the disclosure failure can result in Form S-3 eligibility for 12 months unless a waiver is granted by the SEC. While the SEC generally granted waivers on a case-by-case basis for failure to make the required disclosures in 2011, such waivers will likely be more difficult to come by going forward. Speaking at a conference in 2012, Meredith Cross, then director of the SEC's Division of Corporate Finance, commented that the failure of many companies to amend their Form 8-Ks following the first say-on-pay frequency vote "shouldn't be a recurring problem." In addition, companies should bear in mind the staff is generally reluctant to grant eligibility waivers and will do so "only under very limited circumstances." (See SEC Division of Corporation Finance, Compliance and Disclosure Interpretations, Securities Act Forms ‒ Question and Answer 101.01.) Companies should make sure that the required disclosure has been made or take action to file an amendment to the post-meeting Form 8-K, if necessary.
There are some companies that do not need to address say-on-pay frequency this year. In particular, smaller reporting companies were exempt from holding a say-on-pay or say-on-pay frequency vote until their 2013 annual meeting, so they will not be required to hold a say-on-pay frequency vote until 2019. In addition, emerging growth companies (EGCs) are exempt until after they cease to be classified as EGCs. Unlike with respect to the say-on-pay vote, however, the statute does not provide an explicit transition period for the first say-on-pay frequency vote, so it appears that the say-on-pay frequency vote would be required at the first annual meeting taking place after the company ceases to be an EGC. Other companies that will not need to hold a say-on-pay frequency vote in 2017 include those that held a say-on-pay frequency vote after 2011, such as those that became public or assumed reporting obligations after 2011. For these companies, the say-on-pay frequency vote will not be on the ballot again until the sixth anniversary of the previous vote.
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