As we arrive at the height of the annual meeting season this May, many public companies will be holding say-when-on-pay votes this month in light of the requirement under the Dodd-Frank Act to hold such vote every six years and the fact that many public companies first held this vote in 2011 following the enactment of Dodd-Frank. In this regard, registrants should be reminded of the requirement under Item 5.07(d) to report the determination of the registrant, in light of the shareholder vote on say-when-on-pay, regarding how frequently the registrant intends to hold say-on-pay votes until the next required say-when-on-pay shareholder vote. Under the Form 8-K rules, this disclosure may be made in the Form 8-K disclosing the annual meeting voting results or in a separate Form 8-K amendment filed within 150 days following the date of the annual meeting (but, in any event no later than 60 days prior to the Rule 14a-8 shareholder proposal submission deadline).

This Form 8-K disclosure requirement is easy to overlook, particularly since say-when-on-pay votes now are largely routine, with most public companies recommending in favor of the annual option and public company shareholders generally overwhelmingly being in favor of this option. Nevertheless, public companies should remain mindful of this Form 8-K disclosure requirement, and in most cases it will be advisable to disclose the determination of the registrant regarding the frequency of say-when-on-pay in the Form 8-K disclosing the annual meeting voting results (including to ensure that this permissive disclosure via a subsequent Form 8-K/A is not later forgotten!).

In complying with this disclosure requirement, some registrants will disclose that the board of directors of the registrant took board action on the annual meeting date approving the registrant’s determination regarding the frequency of say-on-pay. In contrast, other registrants have disclosed simply that the public company is recommending in favor of a particular option in light of the board’s prior recommendation and the shareholder vote in favor of this recommendation at the annual meeting. Either approach is fine in most circumstances, and typically the absence of formal board approval of the relevant option on the annual meeting date (generally, the annual alternative) should not be seen as problematic where the board has previously recommended in favor of such option as reflected in the proxy statement and the shareholders of the registrant have approved such option.