TheCorporateCounsel.net

As companies migrate to new jurisdictions of incorporation, some of the tried-and-true practices that we have come to be accustomed to with Delaware corporations could be revisited. For example, Keith Bishop recently observed on his California Corporate & Securities Law blog how the difference in how Nevada treats broker non-votes may obviate the need for Nevada corporation to include a proposal seeking shareholder ratification of the selection of the company’s independent registered public accounting firm. Keith’s blog notes:

My eye caught one subtle difference between Nevada and Delaware corporate law in the discussion of voting and quorum requirements:

“Abstentions and broker non-votes are counted as present and entitled to vote for purposes of determining a quorum.”

This statement is, of course, consistent with NRS 78.315(1)(a) which provides: “Unless this chapter, the articles of incorporation or the bylaws provide for different proportions: (a) A majority of the voting power, which includes the voting power that is present in person or by proxy, regardless of whether the proxy has authority to vote on any matter, constitutes a quorum for the transaction of business . . .” (emphasis added). However, it does differ from Delaware’s treatment of broker non-votes:

“Accordingly, uninstructed shares will cause a broker non-vote deemed present for quorum purposes if and only if the broker has discretionary authority with respect to at least one item on a meeting’s agenda. If no discretionary authority exists on any agenda item, uninstructed shares will not be present with respect to any items and will therefore not count towards a quorum. Conversely, if a broker has discretionary authority and submits a limited proxy authorizing the vote of shares with respect to one or more agenda items, such shares will be deemed present for those items and will count for quorum purposes.”

R. Franklin Balotti & Jesse A. Finkelstein, The Delaware Law of Corporations and Business Organizations § 7.10 (Fourth Edition, 2025-1 Supp 2020-2021) (footnote omitted). This is the reason that it has become de rigueur for Delaware corporations to include a proposal to ratify the appointment of auditors since this is a proposal that brokers may vote in their discretion under NYSE Rule 452.

By counting proxies regardless of whether the proxy has authority to vote on any matter, Nevada moots the purpose of including at least one discretionary proposal. Nevada corporations may want to consider what purpose is served by asking for shareholder ratification of the appointment of the auditor. Shareholders are likely to have little or no knowledge of the auditor’s performance and the vote is essentially advisory.

– Dave Lynn