Silicon Valley and S&P 100: A Comparison of 2023 Proxy Season Results

In the 2023 proxy season, 149 of the technology and life sciences companies included in the Fenwick – Bloomberg Law Silicon Valley 150 List (SV 150) and all 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 2023 proxy season among the SV 150 and S&P 100.[1]

Significant Findings

Our 2023 Proxy Season Results Survey shows:

• Annual meeting participation increased slightly in 2023, with companies continuing to hold virtual-only meetings following the surge during the Covid-19-related shutdowns. Stockholder support for directors, which was high in 2022, increased slightly for both the SV 150 and S&P 100 companies. However, SV 150 companies saw a decline in average stockholder “say-on-pay” support for a second straight year and a significant increase in the number of companies failing to pass such proposals in 2023. Such votes fared better among the S&P 100 companies.
• The number of stockholder proposals, which saw a sharp increase in 2022, remained high in 2023 for both S&P 100 and SV 150 companies. However, both groups continued to see a decline in stockholder support for such proposals, particularly for proposals related to ESG-related policy issues such as diversity, sustainability and human rights in 2023. Accordingly, significantly fewer stockholder proposals passed in 2023. Despite this declining support, S&P 100 companies continued to see an increase in the number of stockholder proposals, while SV 150 companies saw a slight decrease in the number of stockholder proposals.
• Even the smaller public companies in Silicon Valley are not immune to stockholder pressures. However, the majority of stockholder proposals in 2023 were aimed at the largest Silicon Valley companies. As companies grow larger, it is more likely they will come into the crosshairs of stockholder activists that make proposals.

Other Key Findings

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 95.1%, ranging from 66.9% up to 99.8% on average who voted for the board-sponsored nominees (compared to a median of 95.9% and range of 80.7% to 98.9% in the S&P 100).
• There were 148 uncontested elections of directors in the SV 150 (and 100 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 2023 proxy season, only two companies in the SV 150 had one or more directors who received more “against” or “withheld” votes than “for” votes in uncontested elections (compared to three in the SV 150 and one in the S&P 100 in 2022).

Say-on-Pay

• SV 150 companies saw a slight decrease in support for their say-on-pay proposals in 2023, while S&P 100 companies saw more support. Nine SV 150 companies failed their say-on-pay votes compared to five failures in 2022, and the average percentage of votes “for” of shares cast (ignoring broker non-votes and abstentions) for say-on-pay proposals was 84.8%, compared to 86.7% in 2022.
• Four S&P 100 companies failed their say-on-pay vote in 2023, the same number as 2022. However, the average percentage of votes “for” of total votes cast (ignoring broker non-votes and abstentions) for say-on-pay proposals increased from 85% in 2022 to 86.7% in 2023.
• Opposition to named executive officer compensation reached 15% or more of votes cast (ignoring abstentions and broker non-votes) at 32.1% of SV 150 companies (compared to 20.2% of S&P 100 companies). Within those SV 150 companies with relatively lower levels of support, opposition reached 30% or more at 18 companies (of which 13 had opposition of 40% or more).

Auditor Ratification

• A total of 148 companies (out of 149) in the SV 150 and 99 (out of 100) companies in the S&P 100 that held annual meetings in the 2023 proxy season included auditor ratification among the matters being voted upon by stockholders.
• Among SV 150 companies, 14.9% had 5% or more shares that voted against or abstained with respect to auditor ratification compared to 15.4% in the 2022 proxy season and just 7% in the 2021 proxy season. (2% of companies had 10% or more shares that voted against/ abstained in 2023 compared to 1.4% in 2022 and 0.7% in the 2021 proxy season).

Other Proposals Voted On

The total number of proposals on which SV 150 companies voted increased by 9.6% in 2023, driven primarily by more companies holding say-on-frequency votes. The increase followed an 8.9% jump in the number of proposals in 2022, which resulted from 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 87 company-sponsored proposals in the 2023 proxy season, primarily on compensation-related subjects, as well as some governance and general business matters (compared to 51 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 two succeeded in 2023 compared to 14 in 2022).
• The average support for stockholder proposals fell considerably in 2023. Among the SV 150 companies, average support dropped from 31.2% to 15.3% (and declined from 27.5% to 19.2% at S&P 100 companies). Average support across all categories of stockholder proposals (compensation, governance and policy issues) fell for the SV 150 companies. However, S&P 100 companies saw the steepest declines in compensation and policy issue proposals, including those related to diversity and environmental/sustainability issues.
• The most common topics for stockholder proposals in the SV 150 were human rights (11 proposals, none of which succeeded), shareholder ability to call special meetings (seven proposals, of which two succeeded), anti-discrimination/diversity (six proposals, none of which was successful) and political/lobbying activities (five proposals, none of which succeeded).
• The most common such topics in the S&P 100 involved environmental sustainability (59 proposals, of which none succeeded), human rights (46 proposals, of which one succeeded), political/lobbying activities (41 proposals, of which one succeeded) and anti-discrimination/diversity (40 proposals, of which one succeeded).

Annual Meeting Participation

• An average of approximately 87.4% of shares of SV 150 companies were represented in person or by proxy at company annual meetings. In addition to the approximately 12.6% that were not represented, approximately 9.4% 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 14.7% not represented and approximately 10.7% broker non-votes in the S&P 100 in the same period. Annual meeting participation rates were roughly similar to 2022 levels for both SV 150 and S&P 100 companies.
• The ranges of representation and voting were somewhat broader in the SV 150 than the S&P 100 (e.g., 53.3%–100% represented in the SV 150, compared to 66.7%–94.8% represented in the S&P 100 and 22.3%-97.8% voting in the SV 150, compared to 53.5%-91.9% voting in the S&P 100).
• Virtual-only meetings remained popular in 2023 following substantial increases in 2020 and 2021 due to the COVID-19 pandemic lockdowns and restrictions. Among the SV 150 companies, 88.6% held virtual annual meetings, down from 90.9% in 2022. In the S&P 100, 79.0% held annual meetings, compared to 81.8% in 2022.

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, which includes additional details on proposal categories and voting results, is available here.