Silicon Valley and S&P 100: A Comparison of 2020 Proxy Season Results

In the 2020 proxy season, 146 of the technology and life sciences companies included in the Fenwick—Bloomberg Law Silicon Valley 150 List (SV 150) and 98 of the S&P 100 companies held annual meetings that typically included voting for the election of directors, ratifying the selection of auditors of the company’s financial statements and voting on 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. [1]

This companion supplement to the Fenwick survey, “Corporate Governance Practices and Trends: A Comparison of Large Public Companies and Silicon Valley Companies,” provides insight into the results of stockholder voting at annual meetings in the 2020 proxy season, [2] allowing directors, executives and practitioners to analyze company results with relevant peers.

Significant Findings

Among the key findings are:

Annual Meeting Participation

• An average of approximately 87.9% of shares of SV 150 companies was represented in person or by proxy at company annual meetings during the 2020 proxy season. However, in addition to the approximately 12.1% not represented, an additional 11.9% were represented via proxy by brokers who did not receive instructions on voting for the bulk of matters for which broker discretionary voting is not permitted. This compares to 13.8% not represented and 13.7% broker non-votes in the S&P 100 in the same period.
• The ranges of representation and voting, though, were somewhat broader in the SV 150 than the S&P 100 (e.g., 54.1%—100% voting in the SV 150, compared to 67.3%—96.8% voting in the S&P 100).

Director Elections

• For the second consecutive year, there were no contested elections in the SV 150 or the S&P 100 (compared to one SV 150 company and two of the S&P 100 companies in 2018).
• There were 146 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 2020 proxy season, all but four directors in the SV 150 and one director in the S&P 100 received more “for” votes than “against” or “withheld” in uncontested elections (compared to none in either group in 2019). However, the percentage of SV150 companies having an average of 20% or more votes against or withheld from their director nominees increased from 8.4% to 12.3%.

Say-on-Pay

• Opposition to named executive officer compensation reached 15% or more of votes cast (ignoring abstentions and broker non-votes) at 20.8% of SV 150 companies (compared to 25.5% of S&P 100 companies). Within those SV 150 companies with relatively lower levels of support, opposition reached 30% or more at 10 companies (of which seven had opposition of 40% or more, including four companies where opposition exceeded 50%). Among the top 15 SV 150 companies average support dropped from 91.1% in 2019 to 85.7% in 2020.

Other Proposals Voted On

• Setting aside director elections, say-on-pay (as well as say-on-frequency) and auditor approval voting, stockholders at SV 150 companies were asked to vote on 121 proposals, while stockholders at S&P 100 companies voted on 250 proposals. The difference is primarily driven by the fact that stockholder proposals are primarily a large company phenomenon. There were only six such proposals voted on by stockholders outside of the top 50 companies in the SV 150.

Company Proposals

• Excluding director elections, say-on-pay (as well as say-on-frequency) and auditor approval voting, stockholders at SV 150 companies voted on 66 company-sponsored proposals in the 2020 proxy season, primarily in compensation-related subjects, as well as some governance matters (compared to 52 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).
• The average support for stockholder-sponsored proposals was approximately 25.5% at the SV 150 companies (compared to approximately 25.6% at S&P 100 companies).
• The most common topics for stockholder-sponsored proposals in the SV 150 were anti-discrimination/diversity (nine proposals, of which one succeeded) and shareholder ability to act by written consent (nine proposals, of which one was successful).
• The proposals that saw the largest increases in number from 2019 include shareholder ability to act by written consent (increased from three to nine proposals in 2020) and human rights (increased from one to eight proposals in 2020).
• The most common such topic in the S&P 100 was regarding independent chair activities (28 proposals, none of which succeeded).
• In addition to continuing last year’s emerging trend of “True” (ideological) board diversity proposals, this year saw new trends of proposals on the topics of corporate purpose, permitting director removal without cause, stockholder approval of bylaw amendments and employee representation on the board.

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), [3] 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

1Director elections at each company were treated as a single matter, irrespective of the number of directors being elected.(go back)

2To 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 (SEC) by June 30 of that year (i.e., the proxy statements included in the 2020 proxy season survey were generally filed with the SEC from July 1, 2019 through June 30, 2020 for the 2020 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)

3The top 15, top 50, middle 50 and bottom 50 companies of the SV 150, include companies with revenue in the following respective ranges: $17B or more, $2.2B or more, $481M but less than $2.2B, and $145M but less than $457M. The respective average market capitalizations of these groups are $281B, $108.4B, $6.3B and $2.2B.(go back)