In the 2022 proxy season, 143 of the of the technology and life sciences companies included in the Fenwick – Bloomberg Law Silicon Valley 150 List (SV 150) and 99 of the companies in Standard & Poor’s (S&P 100) held annual meetings. Generally, such annual meetings will, at a minimum, include voting with respect to the election of directors and ratification of the selection of the auditors of the company’s financial statements. Fairly frequently, it will also include an advisory vote with respect to named executive officer compensation (say-on-pay).

Annual meetings also increasingly include voting on one or more of a variety of proposals that may have been put forth by the company’s board of directors or by a stockholder that has met the requirements of the company’s bylaws and applicable federal securities regulations.

This post summarizes key developments relating to stockholder voting at annual meetings in the 2022 proxy season among the SV 150 and S&P 100.[1]

Significant Findings

Our 2022 Proxy Season Results Survey shows that the number of stockholder proposals has steadily increased over the last five years. SV 150 companies saw a sharp increase in the number of proposals related to ESG-related policy issues, such as diversity and sustainability, on which stockholders voted in 2022. Overall stockholder support for such proposals increased slightly compared to 2021. S&P 100 companies saw a similar substantial increase in the number of stockholder proposals in 2022 (the number of such proposals more than doubled); however, overall support declined compared to 2021.

Other Key findings are:

Director Elections

• In the SV 150, the median of the average percentage of votes for (as opposed to votes against or withheld) each company’s nominees was 96.6%, ranging from 40.2% up to 100% on average who voted for the board-sponsored nominees (compared to a median of 97.2% and range of 40.2% to 99.7% in the S&P 100).
• There were 143 uncontested elections of directors in the SV 150 (and 98 in the S&P 100). Since they were uncontested, election of the board-nominated candidates was generally not in doubt, subject only to any applicable majority voting policy.
• In the 2022 proxy season, all but three companies in the SV 150 and one company in the S&P 100 had one or more directors who received more “for” votes than “against” or “withheld” votes in uncontested elections (compared to six in the SV 150 and one in the S&P 100 in 2021).

Say-on-Pay

• Both SV 150 and S&P 100 companies saw less support for their say-on-pay proposals in 2022. While five SV 150 companies failed their say-on-pay votes compared to seven failures in 2021, the average percentage of votes “for” of shares cast (ignoring broker non-votes and abstentions) for say-on-pay proposals was 86.7%, compared to 87.8% in 2021.
• Four S&P 100 companies failed their say-on-pay vote in 2022 compared to six failures in 2021. However, the average percentage of votes “for” of total votes cast (ignoring broker non-votes and abstentions) for say-on-pay proposals declined from 86.1% in 2021 to just 85% in 2022.
• Opposition to named executive officer compensation reached 15% or more of votes cast (ignoring abstentions and broker non-votes) at 25.6% of SV 150 companies (compared to 26.3% of S&P 100 companies). Within those SV 150 companies with relatively lower levels of support, opposition reached 30% or more at 16 companies (of which 12 had opposition of 40% or more).

Auditor Ratification

• A total of 142 companies (out of 143) in the SV 150 and all companies in the S&P 100 that held annual meetings in the 2022 proxy season included auditor ratification among the matters being voted upon by stockholders.
• Among SV 150 companies, 15.5% had 5% or more shares that voted against or abstained with respect to auditor ratification compared to just 7.0% in the 2021 proxy season (1.4% of companies had 10% or more shares that voted against/ abstained compared to 0.7% in the 2021 proxy season).

Other Proposals Voted On

After a period of decline from 2018 through 2021, the total number of proposals on which SV 150 companies voted increased by 8.3%, driven by an increase in company-sponsored proposals and policy-related stockholder proposals.

Company Proposals

• Excluding the director elections, say-on-pay (and say-on-frequency) and auditor approval voting covered above, stockholders at SV 150 companies voted on 86 company-sponsored proposals in the 2022 proxy season, primarily on compensation-related subjects, as well as some governance and general business matters (compared to 49 such proposals at S&P 100 companies).

Stockholder Proposals

• The stockholder-sponsored proposals voted on in the SV 150 generally focused on governance matters or policy issues (this was also true in the S&P 100). They were also generally unsuccessful (only 14 succeeded).
• The average support for stockholder proposals was approximately 31.2% at the SV 150 companies (compared to approximately 27.9% at S&P 100 companies).
• The most common topics for stockholder proposals in the SV 150 were shareholder ability to call special meetings (nine proposals, of which two succeeded), anti-discrimination/diversity (eight proposals, one of which was successful) and political/lobbying activities (eight proposals, three of which succeeded).
• The most common such topics in the S&P 100 were regarding shareholder ability to call special meetings (27 proposals, of which two succeeded) and independent chair (27 proposals, none of which succeeded).

Annual Meeting Participation

• An average of approximately 86.6% of shares of SV 150 companies were represented in person or by proxy at company annual meetings. In addition to the approximately 13.4% that were not represented, approximately 8.8% of eligible shares were represented via proxy by brokers who did not receive instructions as to voting for the bulk of matters for which broker discretionary voting is not permitted (so-called “broker non-votes”). This compares to approximately 15.4% not represented and approximately 10.5% broker non-votes in the S&P 100 in the same period. Annual meeting participation rates were roughly similar to 2021 levels for both SV150 and S&P 100 companies.
• The ranges of representation and voting were somewhat narrower in the SV 150 than the S&P 100 (e.g., 24.2%–98.6% voting in the SV 150, compared to 84.3%–94.8% voting in the S&P 100).

In a number of instances, the report also presents data showing comparison of the top 15, top 50, middle 50 and bottom 50 companies of the SV 150 (in terms of revenue),[2] allowing for a more carefully tailored view of the activity and results as they are impacted by company size or scale, as well as more relevant comparison to peers (i.e., the S&P 100 compared to their peers in the top 15 of the SV 150).

The complete publication is available here.

Endnotes

1To be included in the data set for a particular “proxy season,” the definitive proxy statement for a company’s annual meeting generally must have been filed by the company with the Securities and Exchange Commission by June 30 of that year (i.e., the proxy statements included in the 2022 proxy season survey were generally filed with the SEC from July 1, 2021 through June 30, 2022 for the 2022 proxy season), irrespective of when the annual meeting was actually held (the annual meetings were usually held about two months following the filing of the proxy statement).(go back)

2The top 15, top 50, middle 50 and bottom 50 companies of the SV 150 include companies with revenue in the following respective ranges: $21.3B or more; $2.7B or more; $762M but less than $2.6B; and $265M but less than $694M. The respective average market capitalizations of these groups are $424.7B, $171.7B, $15.8B and $8.1B.(go back)