As the 2023 proxy season draws to a close, Goodwin’s PCAP has prepared a reminder about the Say-on-Frequency Form 8-K Reminder.
Many public clients that have held, or will hold, their annual meeting would have submitted a say-on-pay frequency vote to shareholders. Companies generally must disclose the voting results of matters submitted to shareholders within four business days following the 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.
However, 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. In this regard, 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. There are several ways to satisfy the Item 5.07(d) reporting requirement; three of the most common are summarized in the Goodwin’s Say-on-Pay Frequency Form 8-K Reminder. As a reminder, failure to file the Form 8-K Item 5.07(d) report within the deadline provided by SEC rules may result in a company losing Form S-3 eligibility, among other consequences.