| GableGotwals is pleased to announce that Nathan H. Atkins has joined the Oklahoma City office as a Shareholder.

Nathan’s experience includes advising corporate clients regarding private market mergers & acquisitions, commercial finance, joint ventures, securities, investor relations, and general corporate governance. Prior to joining the Firm, Nathan practiced at major international law firms headquartered in New York and Silicon Valley, where he advised private equity and venture capital sponsors and investors in connection with fundraising, operational, and wide-ranging transactional matters. He has also served as in-house general counsel to a global investment firm and SEC registered investment adviser.

“We are excited to expand our transactional capabilities in Oklahoma City with the addition of Nathan,” said Nick Merkley, Managing Shareholder of GableGotwals’ Oklahoma City office. “His national practice and in-house experience offer important perspectives for our clients as they look to us not only as a legal provider but also as a strategic business advisor.”

About GableGotwals
GableGotwals® is a full-service law firm with 100 attorneys and more than 70 other business professionals in Oklahoma and Texas. We represent a diversified client base across the nation, and our connections and reach are global. Fortune 500 corporations, privately owned companies, entrepreneurs, foundations, and individuals entrust us every day with the stewardship and strategic management of their legal challenges.

September 24, 2025 | By: Jeff Haughey and Jeni Stallings

ExxonMobil has announced a new shareholder voting initiative aimed at increasing participation by retail investors in annual meetings. The program enables shareholders to give standing instructions to vote in line with the company’s board recommendations, offering a simplified and more accessible proxy voting option for retail holders.

This development encourages voting by retail shareholders, who have historically low participation rates in corporate governance decisions. ExxonMobil’s approach may serve as a model for others looking to increase voting engagement with their retail shareholders.

The Problem: Low Retail Voting Rates

Public companies in the U.S. routinely face the challenge of low shareholder engagement in proxy voting, especially from retail shareholders. While retail participation in the equity markets has grown substantially in recent years, studies consistently show that fewer than 25% of retail shareholders cast votes at annual meetings.

ExxonMobil’s own experience reflects this broader trend. Despite retail shareholders holding nearly 40% of the company’s outstanding shares at its most recent annual meeting, the company did not hear from 75% of retail voters. Through shareholder engagement, ExxonMobil learned that many individual investors feel overwhelmed by the volume and complexity of proxy materials and are looking for simpler ways to participate meaningfully in corporate governance.

The Solution: Standing Board-Aligned Voting Instructions

In response, ExxonMobil developed a Retail Voting Program allowing retail investors to voluntarily authorize the company to vote their shares in accordance with the board’s recommendations for each meeting of shareholders. Participating shareholders will be given the opportunity to elect their standing voting instruction to apply to either (a) all matters; or (b) all matters except contested director elections or any acquisition, merger or divestiture transaction that legally would require the approval of company shareholders. Separately, retail shareholders will be able to opt out of the Retail Voting Program at no cost or override their standing instruction by voting at the meeting.

SEC No Action Letter

In a letter dated September 15, 2025, the SEC confirmed that it would not recommend enforcement action under Exchange Act Rules 14a-4(d)(2) or 14a-4(d)(3) if ExxonMobil proceeds with the Retail Voting Program as described. This is significant because proxies that grant authority to vote for more than one meeting are generally prohibited by the Exchange Act Rules. In making its final determination, the SEC relied on several key representations by ExxonMobil, including:

• The program is available to all retail shareholders, whether registered holders or beneficial owners through intermediaries.
• Shareholders may cancel or override standing instructions at any time and at no cost.
• Participants will receive annual reminders outside the proxy solicitation period.
• The program will not restrict access to proxy materials or other voting mechanisms.
• The company will provide full disclosure in its proxy statements and on its website.

Implications for Public Companies

Public companies with a substantial percentage of retail shareholders may want to explore whether a standing instruction voting program can provide a scalable, transparent way to improve governance engagement without creating new burdens for shareholders or boards.

Companies that plan to adopt retail voting programs with the same features as ExxonMobil’s do not need to seek their own SEC no-action relief letter, but they are encouraged, although not required, to speak to the SEC before proceeding with their own program. If a company wants to adopt a program before its 2026 annual meeting, it will need to coordinate the timing of enrollment invitations with its transfer agent and vote processing agent well in advance of program implementation and consider its meeting calendar and agenda.

State law should also be considered. Companies that do not wish to be first movers may want to wait and see how similar programs are timed, implemented, disclosed, and maintained as well as the cost associated with such programs.

Jeffrey T. Haughey and Jeni Stallings are attorneys in GableGotwals’ Corporate & Securities Law Group. For help in establishing a similar retail voting program, please contact your GableGotwals attorney or a member of our Corporate & Securities Group.

Jeffrey T. Haughey
918-595-4837
jhaughey@gablelaw.com

Jeni Stallings
918-595-4862
jstallings@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

GableGotwals acted as co-counsel to ONEOK, Inc. in its $3.0 billion public offering of senior notes consisting of $750 million 4.950% senior notes due 2032, $1.0 billion 5.400% senior notes due 2035, and $1.25 billion 6.250% senior notes due 2055.  GableGotwals’ team consisted of Jordan Edwards, Thomas Hutchison, and Whitney Humphrey.  Mizuho Securities USA LLC, Deutsche Bank Securities Inc., PNC Capital Markets LLC, TD Securities (USA) LLC, and Truist Securities, Inc. acted as joint book runners.

GableGotwals acted as co-counsel to ONEOK, Inc. in its $3.0 billion public offering of senior notes consisting of $750 million 4.950% senior notes due 2032, $1.0 billion 5.400% senior notes due 2035, and $1.25 billion 6.250% senior notes due 2055. 

GableGotwals served as legal counsel for Chickasaw Community Bank in its stock purchase agreement to acquire Oklahoma Heritage Bank.

April 23, 2025 | By: Jeffrey T. Haughey

The recent flurry of activity regarding tariffs and the resultant market volatility should have public companies reviewing and analyzing their risk factors and MD&A sections in the preparation of their upcoming 10-Q filings for the first quarter. In addition, they should also be prepared to answer questions on these subjects (to the extent possible) during their earnings calls on their quarterly results.

Risk Factors
Companies should be reviewing the Risk Factors section in their last 10-K filing to determine whether any of them should be updated or if a new Risk Factor would be appropriate to include because of the ongoing tariff restructuring and the market volatility that has accompanied such actions. Some of the possible areas that could trigger the need to update one or more Risk Factors include:

• The magnitude of business subject to tariffs (both domestic and foreign) on the company’s own goods or goods used in producing those goods
• The impact that tariffs could have on the company’s supply chain
• The company’s ability to raise the prices on its goods in response to the imposed tariffs and the resulting impact on the demand for its goods if it does raise the prices on its goods
• Whether the company would incur unrecoverable costs in trying to limit the effect of the tariffs
• The impact on future capital expenditures, acquisitions etc.
• The possibility of an economic slowdown or recession, which may reduce demand for the company’s goods, limit its availability to the capital markets, increase the cost of capital due to increased interest rates, lower its equity valuation or adversely affect foreign currencies (companies may wish to revisit their “recession” risks from 2008-2009)

In reviewing their risk factors, companies should also be on the lookout for “hypothetical” risks that are no longer hypothetical. In Huddleston v Herman & MacLean, 640 F.2d 534, 544 (5th Cir. 1981), the Fifth Circuit admonished that “[t]o warn that the untoward may occur when the event is contingent is prudent; to caution that it is only possible for the unfavorable events to happen when they have already occurred is deceit.”

MD&A
Here, too, companies should analyze the impact of tariffs and market volatility on their results and liquidity, particularly if they need to delay or abandon planned capital expenditures or acquisitions or if the company’s access to capital becomes more expensive or limited.

Companies are obligated to address in the MD&A “known trends or uncertainties that have had or that are reasonably likely to have a material favorable or unfavorable impact on net sales or revenues or income from continuing operations” and “known trends or any known demands, commitments, events or uncertainties that will result in or that are reasonably likely to result in the registrant’s liquidity increasing or decreasing in any material way.” Unfortunately, this is made more difficult since the tariff situation is so uncertain at this time, and if there is an economic slowdown, recoveries can take days or years depending on the circumstances.

Companies should bear in mind that in addition to the consequences of the current tariff/market upheaval, if they cannot conclude that the possibility of much higher tariffs taking effect in 90 days from “Liberation Day” is not reasonably likely to occur, then such a known trend or uncertainty would also need to be discussed if the consequences of such higher tariffs would be material to their results or liquidity.

In the past, some companies have tried to support their stock price by initiating a share repurchase program. Companies should be satisfied that they have ample liquidity to do so and that they are not in possession of material, nonpublic information at the time of such purchases. It would be safer if the company had previously adopted a Rule 10b5-1 plan when it is not in possession of material, nonpublic information.

Earnings Calls
While executives may wish to answer questions on these topics generally by saying that they are “closely monitoring” the situation, they may be better served by having answers and plans to such questions, if possible, to show that the company is staying abreast of the circumstances. As always, companies need to ensure that the entire communications team is providing consistent messages. If the situation continues to be volatile, it may be appropriate, under Regulation FD, to avoid reaffirming earnings guidance after an earnings call in subsequent private calls with analysts.

For questions regarding the impact of tariffs and market volatility on risk factors, MD&A, and earnings calls, please contact your GableGotwals attorney or a member of our Corporate & Securities Group.

Jeffrey T. Haughey
918-595-4837
jhaughey@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.