Annual Meeting & Proxy Support

“Notice & Access” (final rule made effective January 1, 2008) is the avenue most companies must pursue when deciding how to disseminate the materials for an upcoming meeting. Under Notice and Access, there are two options. Under the first option, a company would send only a Notice (with no proxy card) 40 days prior to the shareholder meeting indicating the Internet access and availability of proxy materials for a shareholder to view and vote, while providing that shareholder with a paper or e-mail copy of the proxy materials, only upon request. Under the second option, aka the Full Set Delivery option, companies follow procedures similar to the traditional format whereby they send a full set of paper proxy materials with a proxy card to the shareholder, along with the Notice. Full Set proxy documents include (1) the Notice of Annual Meeting; (2) the form of Proxy to be voted; and (3) the applicable legal documents that pertain to matters to be voted at the meeting, including the Proxy Statement, and often, an Annual Report. Under this second choice, the company does not need to send the materials a full 40 days prior to the meeting.

There is a third option that is a hybrid of the two. In this option, a Notice is sent to all shareholders 40 days prior to the meeting. Then, prior to the meeting, a full set of materials is sent to a portion of the shareholders, often those with a higher percentage of shares that could affect the outcome of the vote.

Broadridge (www.broadridge.com/investor-communications is an information hub-type company that currently oversees the majority of the street voting for beneficial owners. Mediant Communications is now under contract to coordinate the street voting for any of the brokerage firms using Legent Clearing Corporation and the ICI (Investment Company Institute) oversees the proxy responsibility of mutual fund holders. Both Broadridge and Mediant usually perform the broker search (the breakdown of how many beneficial owners own shares at each of the brokerage/clearing firms using Broadridge or Mediant.) It is also these entities that produce the “NOBO” (non-objecting beneficial owners) list for issuers and their transfer agents. This allows the issuer to know who all of their non-objecting beneficial owners are, in order to make contact and send materials. There are also the “OBOs” (these are the beneficial owners who object to the issuer and others knowing who they are) and only Broadridge or Mediant may make contact with them.

In-house transfer agents and large companies may choose to hire a proxy solicitor for an upcoming annual meeting. A proxy solicitor will make contact with individual shareholders and institutional voters to persuade them to vote toward a particular outcome. However, any company may hire a proxy solicitor for an upcoming vote especially if a particular outcome is both desired and uncertain at the time the Notice and/or materials are sent. If a transfer agent has been hired to tabulate the vote, all submitted votes can be counted up to the time the meeting ends. Unless special circumstances exist, no votes are allowed after this time. Usually companies want updated figures as the time for the meeting nears. At times, a transfer agent is asked to be an Inspector of Elections. When a transfer agent has this responsibility it is wise to have a pre-meeting count of the votes as a comparison prior to the meeting. Then a full shareholder list must be available at the meeting both to record attendance and later to be used for verification purposes. If a shareholder who has voted prior to the meeting, shows up to and votes again at the meeting, his or her meeting vote is the only vote counted. The previous vote should be discarded. If any person is designated as an in-person proxy for one or more other shareholders, their credentials should be verified prior to allowing them to vote. Once all votes have been tabulated and verified, the transfer agent representative, as Inspector of Elections, can certify the vote.

The Proxy Planning Calendar can help you plot the amount of time you must allow for full preparation prior to the meeting. Some of these dates refer to timeframes that must have adherence to be in compliance with Federal rules.