Businesses of all types and sizes throughout the United States, Mexico and beyond bring their disputes to Gardere's litigation team and receive practical, responsive, boutique-style attention in return. Our clients have access to the firepower and value of a well-known and highly-regarded Firm's capabilities and interdisciplinary strengths.
Gardere has a national and international energy practice formed around our Energy Industry Team, which is a multidisciplinary group of approximately 60 attorneys with diverse backgrounds, experience and skills specific to the energy industry. Our team includes attorneys who have served as in-house counsel for major energy companies, providing a depth of insight into our clients' needs, issues and concerns. We understand and regularly practice in virtually every sector of the energy, and we represent a wide variety of industry participants from multinational corporations to individuals.
From our offices in the United States and Mexico, our International Practice helps clients operate in today’s global economy. We have more than 30 professionals operating as a boutique within an Am Law 200 law firm and are able to provide focused service with the resources of a large firm. We understand that clients who are engaged in the global marketplace need lawyers who can operate seamlessly across multiple jurisdictions. Our international experts are multi-lingual, are culturally fluent and intimately familiar with various legal systems across the world, especially those in Latin America. Whether you need help with commercial transactions, regulatory matters, customs and import regulations, immigration matters, M&A and joint ventures, international disputes, or international tax planning, Gardere’s international team is here to assist you.
We represent domestic and foreign private funds in all aspects of fund formation, fund operations, platform and add-on acquisitions, and portfolio company operations. Our team has a reputation for being the go-to-lawyers for private equity funds, hedge funds, venture capital funds and family offices. We are known for our vast deal experience, the efficient way we staff and manage our work, and the way we maintain our relationships. We get deals done with sophisticated, strategic, and practical advice tailored to the needs of our clients.
*Not admitted to practice law.
About two years ago, the Securities and Exchange Commission adopted rules implementing provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (.PDF) that require public companies subject to the SEC’s proxy ru
les to conduct two non-binding shareholder-advisory votes at annual meetings:
Those votes were first required for most public companies beginning with an annual meeting held on or after January 21, 2011, but the requirement was delayed for smaller reporting companies. Effective for annual meetings held on or after January 21, 2013, however, smaller reporting companies will be required to conduct a say-on-pay vote and a say-on-frequency vote.
Say-on-pay vote: The say-on-pay vote applies to the description of named executive officer (“NEO”) compensation in the proxy statement. The description of the say-on-pay proposal in the proxy statement must include:
In its release adopting the rules, the SEC provided an example of a resolution, but in one of its Compliance and Disclosure Interpretations, Question 169.05, the SEC has acknowledged some flexibility in the wording of the resolution. A smaller reporting company that does not include (as permitted) a “Compensation Discussion and Analysis” section in its proxy statement under Item 402 of Regulation S-K may wish to revise the reference to Item 402 of Regulation S-K in the SEC’s resolution example to something more general, like “the compensation disclosure rules of the Securities and Exchange Commission.” The form of proxy must include a corresponding item regarding approval, and in its C&DI Question 169.07, the SEC has approved certain examples of the item for the form of proxy. Otherwise, the SEC’s rules do not require any specific disclosure.
Say-on-frequency vote: The say-on-frequency vote is whether a say-on-pay vote will be held annually, every second year, or every third year. The say-on-frequency vote must be held with the first say-on-pay vote and then at least once every six calendar years thereafter. The description of the say-on-frequency proposal in the proxy statement must include:
The SEC has confirmed that the proposal for the say-on-frequency vote need not be in the form of a resolution. A smaller reporting company is not required to recommend a frequency of say-on-pay votes to its shareholders. But if no such recommendation is included in the proxy statement, the company’s designated proxy holders may not vote uninstructed proxies received on that matter. Accordingly, the proxy statement of most larger companies that have conducted say-on-frequency votes has included the company’s recommended frequency, with the reasons for that recommendation. The form of proxy must include a corresponding item regarding approval. In its C&DI Question 169.06, the SEC has approved language for the proxy item stating either “every 1, 2, or 3 years, or abstain” or “every year, every other year, or every three years, or abstain.”
Reporting on votes and frequency: Item 5.07 of Form 8-K (.PDF) requires that the results of the say-on-pay and the say-on-frequency votes be disclosed, with the results of other votes at the shareholders’ meeting, on a Form 8-K filed within four business days after the date of the meeting. If not disclosed in that filing, the Item requires that the Form 8-K be amended to state the company’s decision regarding the frequency of subsequent say-on-pay votes (in light of the result of the say-on-frequency vote). That amendment must be filed within 150 days after the date of the shareholders’ meeting or 60 days before the due date for any shareholder proposal to be included in the company’s proxy statement for the next annual meeting, whichever is earlier.
Practices to be considered: A review of proxy statements of larger public companies that have previously conducted their say-on-pay and say-on-frequency votes reveals the following practices regarding those votes that a smaller reporting company might consider using:
OUR TAKE: The requirements regarding the say-on-pay and say-on-frequency votes are not extensive or complicated, but a smaller reporting company should begin to evaluate how best to communicate its NEO compensation policies, practices, and results to its shareholders so that the votes are favorable.
The publications contained in this site do not constitute legal advice. Legal advice can only be given with knowledge of the client's specific facts. By putting these publications on our website we do not intend to create a lawyer-client relationship with the user. Materials may not reflect the most current legal developments, verdicts or settlements. This information should in no way be taken as an indication of future results.
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