TheCorporateCounsel.net

At this time of year, I often get the question “what do I need to do when I move my annual meeting date by more than 30 days from the date of the previous year’s annual meeting?” I am sure that you do too. Liz recently noted on the Proxy Season Blog that the SEC’s recent clean-up amendments brought some clarity to at least one of the somewhat confusing rules governing this situation:

This time around, among other things, the SEC has cleaned up an inoperative sentence in Form 8-K that referred to (now vacated) Rule 14a-11. It is now even more clear that Item 5.08(a) applies only to companies that have a proxy access bylaw – or are subject to a state or foreign law that requires inclusion of shareholder director nominees in the company’s proxy materials. Item 5.08, when applicable, requires a company to announce, within four business days of determination, changes of more than 30 days to their prior-year annual meeting date.

The 8-K requirement doesn’t apply to companies that do not have an obligation under state or foreign law or under their governing documents to include director nominees in their proxy materials. Remember, though, companies that do not have a proxy access bylaw (or state/foreign requirement) are not entirely off the hook when they change the date of their meeting in comparison to the prior year, because Rule 14a-5(f) states:

“If the date of the next annual meeting is subsequently advanced or delayed by more than 30 calendar days from the date of the annual meeting to which the proxy statement relates, the registrant shall, in a timely manner, inform shareholders of such change, and the new dates referred to in paragraphs (e)(1) and (e)(2) of this section, by including a notice, under Item 5, in its earliest possible quarterly report on Form 10-Q (§ 249.308a of this chapter), or, in the case of investment companies, in a shareholder report under § 270.30d-1 of this chapter under the Investment Company Act of 1940, or, if impracticable, any means reasonably calculated to inform shareholders.”

Paragraph (e)(1) is the subsection relating to deadlines for submitting Rule 14a-8 shareholder proposals for inclusion in the proxy statement, and (e)(2) relates to the deadline for proposals under Rule 14a-4 or an advance notice bylaw. As Meredith noted, this can be a trap for the unwary! Many companies voluntarily issue a press release to inform shareholders of a change to the expected meeting date, but if the 10-Q obligation applies, they would still need to also include the disclosure there. Also remember that there can be listing standards tied to your annual meeting – for example, Section 302.00 of the NYSE Listed Company Manual requires listed companies to hold an annual meeting at least once per fiscal year, and other sections require notice of the record date, annual affirmations, etc.

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– Dave Lynn