The Advisors' Blog

This recent post on the Goodwin Public Company Advisory Blog was prompted by several questions related to best practices for filing a new equity plan or amendment after shareholder approval. The blog notes that the form — but not the final copy — of the plan is included with the proxy statement and recommends that companies file the final plan or amendment as an exhibit to the Item 5.02(e) 8-K instead of incorporating the form attached to the proxy statement by reference or waiting until the next 10-Q. Hopefully, this prevents that 10-Q exhibit from being overlooked. And this is just one of those small ways to make things easier on people navigating your EDGAR filings — it’s annoying to click an exhibit link and find yourself in a proxy statement!

Maybe most importantly, it also suggests that companies combine the equity plan disclosure under Item 5.02(e) with the 5.07 disclosure reporting the results of voting at the annual meeting. As a reminder, under CDI Question 117.08, when a plan is subject to shareholder approval, the 8-K filing is triggered by receipt of that approval (not the earlier board action).

This may seem obvious, but in the thick of first quarter reporting and closing out proxy season, your instinct may be to pull last year’s annual meeting 8-K and tweak the proposals but lose sight of the additional 8-K trigger in a year with an equity plan. As a basic proxy season blocking and tackling tip, one of the ways to avoid this — and to remember other infrequent annual meeting 8-K disclosures like the frequency vote — is to include notes and related reminders in your proxy season timeline, which you’re usually preparing while thinking through your annual meeting proposals and the related proxy-season implications.

– Meredith Ervine