2025 Annual Meeting Filing and Disclosure Reminders

When finalizing proxy materials for annual shareholder meetings, we recommend that companies consider the recent changes to proxy disclosure requirements and other disclosure trends summarized in our December 11, 2024, client alert, “Matters to Consider for the 2025 Annual Meeting and Reporting Season.” In addition, we recommend companies confirm compliance with the following items.

File a proxy card, notice of internet availability and other soliciting materials with the SEC. In addition to filing the proxy statement, companies should confirm that the proxy card, the Notice of Internet Availability of Proxy Materials (if applicable) and any other written communication materials used in connection with the annual meeting solicitation are filed with the SEC.

• Companies should file the proxy card together with the proxy statement and separately file the Notice of Internet Availability of Proxy Materials as additional proxy soliciting materials.

Submit an annual report on EDGAR. Annual reports distributed to shareholders in connection with the annual meeting must be furnished electronically on EDGAR as an “ARS” submission. The ARS submission should be in PDF format and is due no later than the date on which the report is first sent or given to shareholders. Notably, the ARS must be submitted on EDGAR regardless of whether the annual report is also posted on the company’s website. In addition, the requirement applies regardless of whether the company is filing a “glossy” annual report or using the shorter “10-K wrap” method of complying with Exchange Act Rule 14a-3.

• Absent guidance from the SEC staff, we recommend that all public companies submit their annual reports on EDGAR, even where a copy of the company’s Form 10-K is used to satisfy Rule 14a-3, in accordance with the SEC’s guidance in the adopting release indicating that EDGAR is intended to serve as a “repository for electronic copies of the ‘glossy’ annual reports.”¹

Unless a company specifically chooses otherwise, an annual report is not deemed to be “soliciting materials” or “filed” with the SEC, or subject to Regulation 14A or the liabilities under Section 18 of the Exchange Act.²

Ensure clarity on the proxy card. The SEC rules require company proxy cards to identify “clearly and impartially” each separate matter requiring action.³

• In particular, companies should, consistent with SEC staff guidance, ensure that proxy cards clearly identify and describe the specific action on which shareholders will be asked to vote, regardless of whether the matter is a management or shareholder proposal and avoid overly generic descriptions.⁴ For example, a management proposal to amend a company’s articles of incorporation to increase the number of authorized shares of common stock should not be described as just “a proposal to amend our articles of incorporation.”

Provide management’s opposition statement to shareholder proposal proponents. Companies that intend to include an opposition statement in response to a shareholder proposal in the proxy statement need to provide a copy of the opposition statement to the proponent no later than 30 calendar days before the company files its definitive proxy statement and proxy card with the SEC.⁵

Confirm board diversity disclosures. In light of the recent developments described below, companies should confirm that their board diversity disclosures align with current policies and practices.

• Vacated Nasdaq board diversity rules: On December 11, 2024, in a 9-8 decision, the United States Court of Appeals for the Fifth Circuit ruled that in approving the Nasdaq Stock Market’s board diversity rules, the SEC had exceeded its authority under the Exchange Act, and the court vacated the rules. Subject to limited exceptions, Nasdaq’s diversity rules required Nasdaq-listed companies to (i) publicly disclose, in a standardized matrix format, the total number of company board members and how those board members self-identify regarding gender, predefined race and ethnicity categories, and LGBTQ+ status; and (ii) have at least two diverse board members or explain the company’s reasons for not meeting this diversity objective.⁶ These disclosures are no longer required.
• Updates from institutional investors: In January 2025, BlackRock updated its U.S. voting guidelines, which removed the recommendation that boards should aspire for at least 30% diversity of membership and include at least two women and one director from an underrepresented group. In addition, in February 2025, Vanguard updated its proxy voting policy for U.S. companies to remove the recommendation that boards should represent a diversity of personal characteristics, including diversity in gender, race and ethnicity as well as provide for negative votes against nominating chairs for boards that are not representative of such composition. In March 2025, State Street released its proxy voting and engagement policy, which similarly removed the recommendation that boards of companies in major indexes should be 30% female and S&P 500 companies should have at least one racial or ethnic minority director.
• Updates from proxy advisory firms: In February 2025, Institutional Shareholder Services (ISS) announced that it will no longer consider board gender or racial/ethnic diversity in its voting recommendations for director elections under its U.S. guidelines. In contrast, in March 2025, Glass Lewis announced that it will continue to follow its current 2025 benchmark policy guidelines regarding diversity for director elections and shareholder proposals. However, negative director recommendations related to diversity will include a “For Your Attention” flag that points clients to a supporting rationale, which can be leveraged if they prefer to vote differently than the recommendation.

Confirm equity compensation plan disclosure. Item 201(d) of Regulation S-K requires a company to disclose in its annual report on Form 10-K tabular information about its equity compensation plans and individual compensation arrangements. Although a proxy statement is required to include disclosure about equity compensation plans only if the company is seeking shareholder approval for any equity or cash compensation, some companies satisfy their Form 10-K disclosure obligation by voluntarily providing this disclosure in their proxy statement even if they are not seeking shareholder approval and incorporating by reference this disclosure into Part III of Form 10-K.

• If the Item 201(d) disclosure is not included in the proxy statement, however, it must be included in the Form 10-K under Part III, Item 12.⁷

Confirm new insider trading policy disclosures. In December 2022, the SEC adopted several amendments to Exchange Act Rule 10b5-1 and new disclosure requirements under Item 408(b) of Regulation S-K relating to Rule 10b5-1 trading plans, certain equity awards and gifts of securities. Among other things, the rules require companies to disclose whether they have adopted insider trading policies and procedures and to file a copy of their insider trading policies and procedures as an exhibit to their annual reports on Form 10-K. The disclosure must be tagged in interactive data format using Inline eXtensible Business Reporting Language (Inline XBRL).

• For calendar-year companies, this exhibit filing requirement applied to the Form 10-K for the fiscal year ending December 31, 2024.
• In the Form 10-K under Part III, Item 10, companies must either directly or forward incorporate by reference to the proxy statement the required information.
• In addition, companies must disclose the required information in the proxy statement for any meeting involving the election of directors.

Confirm new option grant practice disclosures. On December 14, 2022, the SEC adopted Regulation S-K Item 402(x), which requires companies (including SRCs and EGCs)⁸ to disclose in annual reports on Form 10-K or proxy statements the company’s policies and practices regarding the timing of awards of options in relation to the disclosure of material nonpublic information. Companies will need to discuss:

• How the timing of awards is decided (e.g., whether such awards are granted on a predetermined schedule).
• How material nonpublic information is considered, if at all, when determining the timing and terms of awards.
• Whether disclosure of material nonpublic information is timed to affect the value of such awards.

Companies will also need to disclose in a new table any options granted in the last completed fiscal year to named executive officers (NEOs) that were granted within four business days before or one business day after the (i) filing of a periodic report on Form 10-Q or 10-K or (ii) filing or furnishing of a current report on Form 8-K that discloses material nonpublic information (other than a current report disclosing a material new option award grant under Form 8-K Item 5.02(e)). The table should include the following:

• Each award, including the grantee’s name, the date of the grant, the number of securities underlying the award, the option’s per-share exercise price and the grant-date fair value.
• The percentage change in closing market price of the securities underlying each award on the trading day before and after disclosure of the material nonpublic information.

Companies should provide the information in an interactive data file (i.e., Inline XBRL).

Note changes to beneficial ownership reporting. Under the new reporting rules for Schedule 13G filings, institutional investors now have to file any required amendment to Schedule 13G only if there are material changes in the information last reported. These amended filings are due within 45 days after the end of each calendar quarter in which any material change occurred. Before the rule amendments, institutional investors were required to file a Schedule 13G/A if there was any change in their beneficial ownership from the last Schedule 13G filing. As stated above, institutional investors now only have to amend if there is any material change (which includes the acquisition/disposition of 1% or more of the outstanding shares).

As a result of these changes, unlike in past years, institutional investors may not have filed a Schedule 13G as of February 14, 2025. For proxy disclosure, companies may rely on the most recent Schedule 13G filings unless the company knows or has reason to believe that information in the latest Schedule 13G is incorrect.⁹

Confirm description of voting standards. Item 21 of Schedule 14A requires a discussion in the proxy statement of the specific vote required for each proposal to be voted on, including a description of how abstentions and broker non-votes are treated. These standards are highly technical and can vary from proposal to proposal. The mechanics of these voting standards, including how abstentions and broker non-votes will be treated, are complex. In recent years, plaintiffs’ firms have scrutinized the description of voting standards in annual meeting proxy statements and have issued shareholder demand letters to companies on the basis of allegedly inaccurate disclosure for minor errors. Accordingly, companies should double check their descriptions for accuracy and consider having outside counsel specifically review this section of their proxy statements.

Post proxy materials on a publicly available website. Companies must make their proxy soliciting materials publicly available and free of charge on a website other than through EDGAR.¹⁰

• Those materials must be posted on or before the time the Notice of Internet Availability of Proxy Materials, or a full set of proxy materials, are sent to the shareholders and must remain available online until the conclusion of the annual meeting.

Submit hard copies to the stock exchange, if required.

• Companies listed on the New York Stock Exchange (NYSE) are not required to submit hard copies of definitive proxy materials, provided that such proxy materials are included in an SEC filing available under Schedule 14A on EDGAR.¹¹
• Any NYSE-listed company whose proxy materials are not filed on Schedule 14A but are available on EDGAR — such as foreign private issuers that file proxy materials under Form 6-K or 8-K or U.S. issuers that file proxy materials on Form S-4 — must inform the NYSE of the information needed to identify the filing as containing proxy materials.¹²
• Any NYSE-listed company not required to file proxy materials on EDGAR or whose materials are not filed in their entirety on EDGAR will continue to be required to provide three physical copies to the NYSE. The NYSE does not require listed companies to mail annual reports to the exchange.

Nasdaq does not require listed companies to mail proxy materials to the exchange. This includes the annual report if the company has filed its Form 10-K, 20-F or 40-F on EDGAR.

File Form 8-K to announce voting results. Companies should announce the matters presented at the annual meeting for a shareholder vote, as well as the number of votes cast for or against or withheld for each matter, as required by Item 5.07 of Form 8-K, within four business days following the annual meeting.

Submit NYSE annual and interim affirmations. NYSE requires listed companies to submit an annual written affirmation each calendar year regarding their compliance with NYSE’s corporate governance rules.¹³

• U.S. issuers must submit such affirmation, as well as an annual CEO certification, no later than 30 days after the annual meeting or, if no annual meeting is held, 30 days after the company’s annual report on Form 10-K is filed with the SEC.
• Foreign private issuers are required to file an annual affirmation 30 days after the company’s annual report on Form 20-F or 40-F is filed with the SEC and are not subject to the CEO certification requirement.
• In addition, companies must submit an interim written affirmation within five business days of any triggering event identified in the interim written affirmation form, such as, for example, changes in the composition of the company’s board of directors or of the nominating and corporate governance, compensation or audit committee. However, U.S. issuers are not required to submit interim affirmations for any change(s) that take place thirty days after the annual meeting if the annual affirmation incorporates such change(s).

Nasdaq does not require listed companies to affirm compliance with its corporate governance rules on a similar annual or interim basis.

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1 See SEC’s Updating EDGAR Filing Requirements and Form 144 Filings, n. 12.

2 See Exchange Act Rule 14a-3(c).

3 See Exchange Act Rule 14a-4(a)(3).

4 See Compliance and Disclosure Interpretations (CDI) Regarding Description Under Rule 14a-4(a)(3) of Rule 14a-8 Shareholder Proposals, March 22, 2016.

5 See Exchange Act Rule 14a-8(m)(3).

6 See our client alert “SEC Approves Nasdaq Board Diversity Listing Standards,” August 10, 2021.

7 See CDI 106.01 Regarding Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters, March 13, 2007.

8 A smaller reporting company (SRC) or emerging growth company (EGC) may limit the disclosures to (i) the company’s principal executive officer (PEO), (ii) the two most highly compensated executive officers other than the PEO who were serving as executive officers at the end of the last completed fiscal year and (iii) up to two additional individuals who would have been the most highly compensated if serving as executive officers at the end of the last completed fiscal year.

9 Instruction 3 to Reg. S-K Item 403 is instructive on this point:

3. The registrant shall be deemed to know the contents of any statements filed with the Commission pursuant to section 13(d) or 13(g) of the Exchange Act. When applicable, a registrant may rely upon information set forth in such statements unless the registrant knows or has reason to believe that such information is not complete or accurate or that a statement or amendment should have been filed and was not.

10 See Exchange Act Rule 14a-16(b).

11 See Sections 204.00(B) and 402.01 of the NYSE Listed Company Manual.

12 This can be accomplished through the online portal (NYSE Listing Manager) or emailing to proxyadmin@nyse.com.

13 See NYSE Listed Company Manual Section 303A.12.

This memorandum is provided by Skadden, Arps, Slate, Meagher & Flom LLP and its affiliates for educational and informational purposes only and is not intended and should not be construed as legal advice. This memorandum is considered advertising under applicable state laws.