On July 1, 2009, the Securities and Exchange Commission approved a New York Stock Exchange (the “NYSE”) proposal to amend NYSE Rule 452 and corresponding Section 402.08(B) of the NYSE Listed Company Manual to eliminate discretionary voting by brokers in any election of directors. Currently, if a beneficial owner who holds its shares in street name does not provide voting instructions to its broker at least 10 days before a scheduled meeting, Rule 452 permits the broker to vote on behalf of the beneficial owner customer with respect to “routine” proposals. Rule 452 enumerates a list of 18 items that are deemed to not be “routine” for purposes of the rule, which lists includes a contested election of directors. The amendments to Rule 452 amend the list of non-routine items to include any election of directors regardless of whether it is a contested election.
The amendments to Rule 452 do not apply to companies that are registered under the Investment Company Act of 1940, as amended (the “1940 Act”), and discretionary broker voting will still be permitted with respect to such companies. For all other NYSE listed companies, discretionary broker voting in any director election will be prohibited with respect to any meeting of stockholders held on or after the January 1, 2010 effective date (excluding meetings that were scheduled to be held prior to January 1, 2010 but were properly adjourned to a date after the effective date).
The amendments to Rule 452 will also have the effect of eliminating discretionary broker voting for Nasdaq and NYSE Amex listed companies. Currently, FINRA and predecessor NASD rules prohibited brokers from voting shares without instructions from beneficial owners unless the broker was a member of another national securities exchange or association and was permitted to engage in discretionary voting by the rules of the other exchange or association. Accordingly, FINRA or NASD brokers that were also NYSE members were permitted to exercise discretionary broker voting for Nasdaq and NYSE Amex listed companies in uncontested director elections. The amendments to Rule 452 will eliminate this discretionary voting.
The amendments to Rule 452 also codified previous interpretative guidance by the NYSE regarding discretionary broker voting in connection with certain investment company proposals. One of the 18 non-routine items identified in Rule 452 is a “matter which may affect substantially the rights or privileges of such stock.” The NYSE previously published interpretative guidance advising NYSE listed companies that any material amendment to an investment advisory contract with an investment company or an investment company’s investment advisory contract with a new investment adviser, including assignments in connection with a change in control, would be deemed to be matters which affected substantially the rights of stockholders. The amendments to Rule 452 incorporate the interpretative guidance into the text of the Rule.