From time to time public companies adopt equity incentive plans or amendments to such plans that require shareholder approval, either under the governance rules of the exchange on which the company is traded or on account of requirements under the Internal Revenue Code. The outcome of the shareholder votes, including tallies of the votes, currently is reported in the applicable Form 10-Q or 10-K of the company for the quarter in which the shareholder meeting occurs. Under new Item 5.07 to Form 8-K, issued on December 22, 2009, in SEC Release No. 34-61067, the outcome of the shareholder vote now will be required to be disclosed on Form 8-K. With respect to a vote on an equity incentive plan (including, in this case a broad-based plan, such as an ESPP), new Item 5.07 requires the following information:
- The date of the meeting and whether it was an annual or special meeting;
- A description of the matters relating to the plan voted on at the meeting; and
- The number of votes cast for, against or withheld, as well as the number of abstentions and broker non-votes to each matter.
A preliminary Form 8-K is required to be filed within 4 business days after the meeting date. If this initial filing does not also contain the final certified results, final results are required to be disclosed on an amended Form 8-K 4 business days after certification of the voting results. (New Item 5.07 also required information on the election of directors by the company’s stockholders at the meeting.)
Equity plans subject to the Item 5.07 disclosure generally also will be subject to disclosure of the additional information required by Item 5.02(e) at the time of the preliminary Item 5.07 filing. Item 5.02(e) to Form 8-K requires disclosure of the material provisions of equity plans (other than a nondiscriminatory plan, such as an ESPPs) or, if applicable, the material amendment to such a plan, where the plan provides for awards to officers whose compensation is required to be disclosed in the company’s proxy (i.e., the named executive officers or “NEOs”). Ordinarily, the Item 5.02(e) disclosure is required to be made within 4 days of the adoption of the plan/amendment that will benefit NEOs. However, where the plan/amendment is subject to shareholder approval, the disclosure requirement is delayed and is instead triggered upon receipt of shareholder approval of the plan/amendment.