***Warning: I’m not a lawyer or a proxy expert. Below are my conclusions based on research of similar cases. I take no responsibility for your vote or the outcome. Below is my opinion only. I just write a blog.***
We’re all going to get two proxy cards in either physical or electronic form (or both). You do not need to vote both cards.
Vote only one card.
If you have a candidate that you prefer, I strongly suggest you specifically vote FOR that person using the card explicitly naming that person in the ballot question.
White = Oliver. Blue = Cook.
An AGAINST vote for Oliver is not a FOR vote for Cook. An AGAINST vote for Cook is not a FOR vote for Oliver.
It is my belief that the candidate with the most FORs win*. AGAINSTs are essentially non-votes and don’t contribute to the denominator of the tally*.
*My conclusion. Could be wrong.
Any help in nailing this down definitively would be appreciated! Also, feedback on my logic (or lack there of) is welcome. Let’s get this right.
You will get two cards electronically or via mail. I’ve personally received both via Fidelity.com (who uses proxyvote.com) but only one physical card (White) via snail mail. I expect the physical Blue card will arrive at home in the coming few days.
The BLUE card is a solicitation to vote FOR or AGAINST General Cook. The physical card received in the mail will be blue. Electronic voting and the physical card will both have the language immediately below.
The WHITE card is a solicitation to vote FOR or AGAINST Eric Oliver. The physical card received in the mail will be white. Electronic voting and the physical card will both have the language immediately below.
This PDF written by Fried Frank is a treasure for getting into the nitty gritty on proxy battles. The following language on page 8 is relevant to our situation:
In the course of a proxy contest, investors may receive multiple proxy cards from each side, and may, intentionally or inadvertently, submit more than one proxy card. The latest dated proxy card revokes any prior proxy.
I take this to mean that your latest vote nullifies and earlier votes. For instance, if you voted the WHITE card FOR Eric Oliver yesterday and then vote BLUE card AGAINST General Cook tomorrow, your second vote is the ultimately the one that counts. In that instance, your counted vote would be a vote AGAINST General Cook which isn’t the same as a vote FOR Eric Oliver. The reverse is also true.
It appears to me as if AGAINST votes are non-votes and effectively function the same as the ABSTAIN option.
To be safe, I suggest you ignore the card of the candidate you oppose.
If you are unsatisfied with your vote (for instance: you made an AGAINST vote instead of a FOR vote), I suggest you clear your current vote online (I can do this on Fidelity.com/proxyvote.com) or call your brokerage and have them assist you with clearing your vote. After your vote is clear, find the FOR card that you support (White = Oliver, Blue = Cook) and vote FOR.
If you’ve responded via physical mail and want to amend your vote, contact your brokerage to have them assist you in doing so.
Of course, if the card you didn’t vote is the FOR card for the candidate you prefer, you can simply vote that card as FOR. It will override your prior vote (assuming the plumbing works as expected).
Supporting Evidence and Miscellaneous:
- Arconic board challenger materials state the following (pay no attention to color; in this case the challenger is in blue):
If you inadvertently voted to support the current board with the White Proxy Card, it is not too late to change your vote. Simply vote for the Blue Proxy Card. The most recent vote sent before voting closes will be the only vote that counts.
- Barron’s writes on the state of proxy voting. Votes via brokerage houses get rolled down to the owner and then get rolled back up in a fairly ugly way. This makes the case for voting once and doing so as directly and simply as you can (FOR).
For an annual meeting vote, DTC/Cede identifies the bank-broker participants that hold the stock as of the record date and sends them an omnibus proxy. Participants, in turn, send a proxy or a voting instruction form (VIF) to their own clients, such as institutions, individual investors, or respondent banks, which have accounts with a participant bank.
Cascades of proxies can follow. Respondent banks may have their own clients, which may include still other banks with shareholder clients. All will send out proxies or VIFs to their clients. As votes are cast, the proxies and VIFs reverse course, heading back up the chain until they reach the tabulator of the vote. This can be done by mail, email, or telephone, depending on the participant, the shareholder, and the third parties involved.
- As proof that you don’t have to vote both cards, here is a video from Proctor & Gamble (blue card in this case) that tells voters to “toss” the white cards received from the challenger (Trian) in their recycle bin.
- Lastly, I don’t believe the NYSE can declare this vote as routine. Alleviates the worry of a blind broker vote on behalf of their non-voting clients.