Last week, the SEC issued a release adopting amendments to certain disclosure requirements in Regulation S-K and related forms (Release No. 33-10618). These amendments in large part track the SEC’s Report on Modernization and Simplification of Regulation S-K issued on November 23, 2016, as required by the Fixing America’s Surface Transportation Act (the FAST Act).
The one change that should impact executive compensation professional is to Item 405, which requires that companies disclose each reporting person that failed to timely file a required Section 16 beneficial ownership report (generally, Form 4) during the most recent year or prior fiscal years. I have blogged on the requirements of Item 405 in the past, which companies and their counsel sometimes overlook (see, Warning – Pay Special Attention to this Disclosure Item in Your Proxy Statement This Year), but the issue has been quiet for a few years.
The new Rules change the heading “Section 16(a) Beneficial Ownership Reporting Compliance” to “Delinquent Section 16(a) Reports,” which a company only would need to include if it has actual delinquencies to report. Additionally, the rule allows companies to rely on a review of Section 16 reports submitted on EDGAR and written representations from the reporting persons that no Form 5 was required, in determining whether there are any Section 16 delinquencies, rather than relying on Section 16 reports furnished to them. Finally, the rules eliminate the checkbox on the cover page of Form 10-K regarding Item 405 disclosures (and related instruction in Item 10 of Form 10-K). The amendments will become effective 30 days after publication in the Federal Register, too late for this proxy season.