Though most reporting companies conducted their first say-on-pay vote in 2011 and disclosed the shareholder voting results on Form 8-K, some companies overlooked the additional requirement to disclose the board of directors’ decision (in light of the shareholders’ advisory vote) regarding the frequency that the company will conduct say-on-pay votes. A company’s failure to file this Form 8-K regarding the board’s decision on the say-on-pay vote frequency could result in the company being an untimely filer and ineligible to use Form S-3. Fortunately, the SEC staff indicated in its 2012 “SEC Speaks” conference that it will likely grant waivers to companies if:
- they file an amended Form 8-K indicating the board’s decision on the say-on-pay vote frequency; and
- the board’s decision on say-on-pay vote frequency followed the shareholder’s recommendation.
However, anecdotal conversations with the SEC staff have indicated that:
- waivers are not always granted;
- the board’s decision on say-on-pay vote frequency must match the board’s recommendation in addition to matching the shareholder’s recommendation for a waiver to be granted; and
- the SEC does not intend to grant waivers forever.