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Saturday, February 28th, 2009
BANKING LAW UPDATE

Annual Shareholder Meeting Checklist for Nonpublic Companies

This is the time of year most companies are planning for their annual meeting of shareholders. We help a number of banks and bank holding companies, as well as public and private nonbanking companies, prepare for their meetings. Below is a checklist of some of the items your company needs to consider as you get ready for your shareholder meeting.

+Meeting Date. Review the company’s bylaws to confirm when the annual meeting of shareholders is required to be held, and then select a date for the meeting.

The date may be set by the bylaws – for instance, the 3rd Thursday in April, or the bylaws may just require that the meeting take place within a certain period of time (i.e., the first 6 months of the year).

  • Required Notice. Based on the date selected for the annual meeting, determine the required notice period in accordance with applicable law.
  • Alabama companies are required by state law to give notice at least 10 days before, but no earlier than 60 days prior to the date of the meeting.
  • Proxy Mailing Date. Set a target date for mailing the proxy statement.
  • If annual financial statements will accompany the proxy statement, be sure to coordinate with your accountants when setting a target mailing date.

+Board Meeting and Record Date. Hold a board meeting to fix the date, time and place of the annual meeting, as well as to establish the record date for shareholders entitled to vote at the meeting. This does not have to be a separately called board meeting – you can include these items in the agenda for your regularly scheduled board meeting.

  • The record date cannot be before the date of the board meeting.
  • Proxy Statement. Prepare the proxy statement, which should disclose all material facts related to the matter or matters to be voted on at the annual meeting and for which proxies are being solicited.

The most common action for the annual shareholder meeting is the election of new directors. You need to determine which positions are up for election, which directors will be slated for re-election, and whether you will nominate any new directors.

  • If you have received TARP funds, you may be required to present additional items for shareholder vote – for instance, the “say on pay” shareholder vote required by the American Recovery and Reinvestment Act signed by President Obama, February 17, 2009.
  • Consider whether shareholder approval may be required or desirable for certain other events or purposes, for example, the adoption or amendment of an incentive compensation plan, corporate transactions like the formation of a holding company, or the ratification of the company’s auditor.

+Mailing Date. Mail the proxy materials to shareholders. The materials mailed to shareholders generally include (i) a notice of the meeting, (ii) a proxy statement, (iii) a proxy card and (iv) annual financial statements.

+ List of Shareholders. After giving notice of the meeting, you must prepare a shareholders’ list and make it available for inspection by any shareholder in accordance with applicable law. The shareholders’ list must be available at the annual meeting as well.

  • Meeting Agenda. In advance of the annual meeting, prepare an agenda and script for the meeting, as well as a ballot that can be used by shareholders to vote at the meeting.