As the 2023 proxy season draws to a close, Goodwin's PCAP has prepared a reminder about the Say-on-Frequency Form 8-K Reminder.

Many public clients that have held, or will hold, their annual meeting would have submitted a say-on-pay frequency vote to shareholders. Companies generally must disclose the voting results of matters submitted to shareholders within four business days following the meeting of shareholders in a current report on Form 8-K under Item 5.07(b). Voting results may also be reported in a Form 10-Q or Form 10-K that is filed on or before the date that the Form 8-K is due.

However, because the say-on-pay frequency vote is an advisory vote and nonbinding, companies must take action to determine the frequency of the vote-every one, two or three years. In this regard, Item 5.07(d) of Form 8-K requires disclosure of "the company's decision in light of [the shareholder] vote as to how frequently the company will include a shareholder vote on the compensation of executives in its proxy materials ." This disclosure is required even if the company included its recommendation for say-on-pay frequency in the proxy statement and shareholders supported the company's recommendation. There are several ways to satisfy the Item 5.07(d) reporting requirement; three of the most common are summarized in the Goodwin's Say-on-Pay Frequency Form 8-K Reminder. As a reminder, failure to file the Form 8-K Item 5.07(d) report within the deadline provided by SEC rules may result in a company losing Form S-3 eligibility, among other consequences.

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