The 2019 Proxy Season is Around the Corner

Locke Lord LLP

Locke Lord LLP

The 2019 proxy season is almost upon us. This QuickStudy recaps some important policy updates from Institutional Shareholder Services (“ISS”) and Glass Lewis & Co. (“Glass Lewis”) and new disclosure requirements to keep in mind as proxy preparations begin in earnest this winter.

ISS and Glass Lewis 2019 Voting Policy Updates

Both ISS and Glass Lewis have updated their proxy voting guidelines for the 2019 proxy season.1  The following table summarizes and compares certain of the key updates to their voting guidelines for 2019.

 Topic  ISS  Glass Lewis
Board Gender Diversity Companies with no female directors will receive a notation in their proxy research reports from ISS, but ISS will not issue negative recommendations against directors based on the lack of gender diversity. Beginning in February 2020, ISS will generally recommend against the nominating committee chair (or other directors on a case-by-case basis) at companies in the Russell 3000 or S&P 1500 indices with no women directors on the board.  Under this new policy, the absence of gender diversity may be mitigated by: (i) a firm commitment, as disclosed in the proxy statement, to appoint at least one female director to the board in the near term; (ii) the presence of a female director on the board at the preceding annual meeting; or (iii) other applicable relevant factors. Glass Lewis will generally recommend voting against the nominating committee chair (and potentially other nominating committee members) of a board with no female members unless the company is outside of the Russell 3000 index or the board has provided a sufficient rationale for not having any female directors. Such rationale may include a timetable for addressing the lack of diversity on the board and any notable restrictions affecting board composition (e.g., director nomination agreements with significant investors).
Management Proposals to Ratify Existing Charter or Bylaw Provisions Will recommend against or withholding votes from directors, governance committee members, or the full board, where boards ask shareholders to ratify existing charter or bylaw provisions considering the following factors:
  • presence of a shareholder proposal addressing the same issue on the same ballot
  • board rationale for seeking ratification;
  • disclosure of actions to be taken by the board should the ratification proposal fail
  • disclosure of shareholder engagement regarding the board’s ratification request;
  • level of impairment to shareholders’ rights caused by the existing provision;
  • history of management and shareholder proposals on the provision at the company’s last meeting;
  • whether the current provision was adopted in response to the shareholder proposal; 
  • company’s ownership structure; and 
  • previous use of ratification proposals to exclude shareholder proposals.
ISS will recommend against management proposals to ratify existing charter or bylaw governance provisions where such provisions do not align with best practice.
Where a company has excluded a special meeting shareholder proposal in favor of a management proposal ratifying an existing special meeting right that is materially different from the shareholder proposal, will typically recommend voting against the management proposal and against the governance committee chair. In very limited circumstances, may recommend voting against governance committee members if a company excludes any conflicting shareholder proposal (not limited to special meeting proposals) based on SEC no-action relief if believe the exclusion was detrimental to shareholders
Conflicting Special Meeting Proposals No Change Where both a management and shareholder proposal requesting different thresholds for the right to call a special meeting are on the ballot, Glass Lewis will generally recommend voting for the lower threshold (typically the shareholder proposal) and against the higher threshold.

Where there are conflicting management and shareholder special meeting proposals and the company does not currently maintain a special meeting right, may consider recommending that shareholders vote in favor of the shareholder proposal and abstain from voting on management’s proposal

Where companies have excluded a special meeting shareholder proposal in favor of a management proposal ratifying an existing special meeting right, Glass Lewis will typically recommend against the ratification proposal as well as members of the nominating and governance committees.
Social and Environmental Oversight No change In instances where companies have not properly managed or mitigated environmental or social risks to the detriment of shareholder value, or where such mismanagement has threatened shareholder value, may consider recommending that shareholders vote against directors responsible for oversight of environmental and social risks (or, if not specified, audit committee members), after reviewing the situation, its effect on shareholder value and any corrective action taken by the company.
Shareholder Proposals on Social and Environmental Issues In determining whether to recommend, on a case-by-case basis, shareholder proposals relating to the environment and social issues, ISS will examine primarily whether implementation of the proposal is likely to enhance or protect shareholder value (in lieu of taking this into consideration). This update codifies the factors that are already taken into consideration in its recommendation on environmental and social shareholder proposals and makes it clear that significant controversies, fines, penalties, or litigation associated with the company’s environmental and social practices will be considered. Glass Lewis will place significant emphasis on the financial implications of a company adopting, or not adopting, the proposal. but will consider the standards developed by the Sustainability Accounting Standards Board when determining financial materiality.
Written Consent Shareholder Proposals No change If a company has adopted a special meeting right of 15% or below and has adopted reasonable proxy access provisions (but does not specify what qualifies as “reasonable”), Glass Lewis will generally recommend voting against shareholder proposals asking companies to provide shareholders with the right to action by written consent.
Shareholder Proposals on Diversity Reporting No change Glass Lewis will generally recommend in favor of shareholder proposals requesting that companies provide enhanced disclosure on the diversity of their workforce or details about actions taken to promote diversity within their workforce (will consider he industry in which the company operates and the nature of its operations; the company’s current level of disclosure on issues related to workforce diversity; the level of such disclosure at the company’s peers; and any lawsuits or accusations of discrimination within the company).
Board Responsiveness ISS will continue to recommend voting on a case-by-case basis on individual directors, committee members or the entire board, as appropriate if the board failed to act on a shareholder proposal that received the support of a majority of the shares cast in the previous year, but also if the board failed to act on a management proposal seeking to ratify an existing charter/bylaw provision that was opposed by a majority of shares cast in the previous year. No change
Auditor Ratification Proposals No change Glass Lewis expanded the factors considered when evaluating auditor ratification proposals to include (i) the auditor’s tenure, (ii) a pattern of inaccurate audits, and (iii) any ongoing litigation or significant controversies, which may call into question an auditor’s effectiveness. In limited cases, these factors may lead to recommend voting against the proposal..
Board Attendance ISS will continue to recommend voting against or withhold from directors who attend less than 75% of the aggregate of their board and committee meetings during the period of service (except new nominees, who will be considered on a case-by-case basis). New for 2019, in cases of chronic poor attendance without reasonable justification, generally recommend voting against the director(s) with poor attendance and against or withhold from appropriate members of the nominating/governance committees or the full board. No change
Director Performance Evaluation ISS will recommend against or withhold from the entire board of Russell 3000 companies that lack processes to ensure board accountability and oversight and that have sustained poor performance relative to their peers measured by one, three and five-year total shareholder returns (“TSR”) that fell in the bottom fifty percent (50%) of a company’s four-digit GICS industry code (instead of just one- and three-year TSR). This update moves the five-year TSR to part of the initial screen for underperformance rather than during the second step of evaluation. Clarified that in addition to the company’s stock price performance, Glass Lewis will consider the company’s overall corporate governance, pay-for-performance alignment and responsiveness to shareholders when making voting recommendations on directors based on company performance
Excise Tax Gross-Ups No change Glass Lewis will consider recommending against the say-on-pay proposal and compensation committee members when new excise tax gross-up provisions are adopted in executive employment agreements, particularly if the company had committed not to provide any such entitlements in the future
Contractual Payments and Arrangements No change Specified certain contractual terms relating to executive compensation that may contribute to a negative voting recommendation on a say-on-pay proposal, including excessive sign-on awards; multiyear guaranteed bonuses; and executive employment terms such as key man clauses, board continuity conditions, excessively broad change in control triggers and poor wording of employment agreements. When evaluating severance and sign-on arrangements, Glass Lewis will consider general U.S. market practices and the size and design of entitlements.
Materially Decreased Executive Compensation Disclosure for Smaller Reporting Companies No change Glass Lewis will consider the impact of materially decreased proxy statement disclosure regarding executive compensation policies and procedures and may consider recommending against compensation committee members where a reduction in disclosure substantially impacts shareholders’ ability to make an informed assessment of the company’s executive pay practices when analyzing the performance of compensation committee members
Capitalization / Restructuring Codifying approach currently taken for companies not listed on a major stock market or exchange and that are not proportionately reducing their authorized shares, ISS will recommend voting for management proposals to implement a reverse stock split if the effective increase in authorized shares is equal to or less than the allowable increase calculated in accordance with ISS’ Common Stock Authorization policy No change
Pay-for-Performance Solely for informational purposes, will include on a phased-in basis Economic Value Added (“EVA”) data in its proxy research reports as a supplement to GAAP/accounting performance measures to provide additional insight into company performance when evaluating pay-for-performance alignment. ISS will continue to explore the potential future use of EVA data as part of its pay-for-performance evaluation No change
Virtual Shareholder Meetings No change Beginning in 2019, Glass Lewis will generally recommend against members of the governance committee where the board is planning to hold a virtual-only shareholder meeting and the company does not provide robust disclosure assuring shareholders that they will be afforded the same opportunity to participate as they would at an in-person meeting.
NOL Protective Amendments No change If it supports the terms of a particular NOL poison pill, Glass Lewis will generally support the protective bylaw amendments in the absence of significant concerns with the specific terms of the proposal revising its previously policy of supporting the adoption of the NOL poison pill but opposing the protective bylaw amendment that generally accompanies an NOL poison pill.
Quorum Requirements No change Glass Lewis will generally support management proposals seeking shareholder approval of a lower quorum requirement if the reduced quorum is at least one-third of shares entitled to vote, either in person or by proxy. When evaluating such proposals, Glass Lewis will also consider the company’s specific facts and circumstances, such as size and shareholder base.
Non-Employee Director Compensation ISS will delay until at least 2020 previously announced new policy of potentially issuing negative vote recommendations against members of the board committee responsible for setting or approving excessive non-employee director compensation in two or more consecutive years without a compelling rationale or other mitigating factors No change
Grants of Front-Loaded Awards No change Glass Lewis will evaluate grants of front-loaded awards with particular scrutiny, taking into account the quantum and design of the awards and the company’s rationale for granting such awards.
Clawback Provisions No change Focus has shifted from (i) whether a company maintains a clawback policy that satisfies minimum legal requirements to (ii) the specific terms of clawback policies. Where a company maintains only a bare-minimum clawback policy, Glass Lewis clarified that the lack of more robust recoupment tools may inform its overall view of the company’s compensation program.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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