As another year comes to a close, it is time for public companies to become acquainted with the securities law and business developments of the past year to position themselves for success in 2017. Below is a summary of current and anticipated changes that may impact reporting requirements and disclosure regulations for the upcoming 2017 proxy season, along with a review of the 2016 proxy season.
NEW FOR 2017
Frequency Votes for Say-on-Pay
After Jan. 21, 2011, public companies were required to hold an advisory vote regarding the frequency of which say-on-pay votes would occur, which could not be in excess of every six years. Therefore in 2017, many companies will need to include an agenda item for the frequency vote at their annual meeting. Following the vote, companies will need to include the results of the frequency for which say-on-pay votes will be held in their Form 8-K under Item 5.07(b).
SEC Approves NASDAQ’s “Golden Leash Rule”
In July 2016, the SEC approved NASDAQ’s “Golden Leash Rule.” This rule requires listed companies to disclose material terms of any agreement between a director or director nominee and any entity or person other than the company, regarding any amount of compensation or payment related to the director’s service on the board or the director nominee’s candidacy. The “Golden Leash Rule” requires annual disclosure in the companies’ proxy or on its website. The “Golden Leash Rule” became effective Aug. 1, 2016.
Form 10-K Summaries
In July 2016, the SEC issued an interim final amendment to the Fixing America’s Surface Transportation Act, creating Item 16 on Form 10-K allowing companies the option to include a summary of the information included in the Form 10-K. While no previous rule prohibited summaries, most issuers simply included a table of contents with hyperlinks to items in their reports. This rule provides issuers some flexibility when preparing the Form 10-K.
CEO Pay Ratio Disclosure Rule
For the first fiscal year beginning on or after Jan. 1, 2017, companies will need to comply with the SEC’s long-anticipated final rule implementing Section 953(b) of the Dodd-Frank Act, which requires all public companies to disclose the pay ratio between their CEO’s annual total compensation and the annual total compensation of the companies’ “median” employee. However, companies will not be required to include pay ratio disclosures in their proxy statements until 2018. With the exception of smaller reporting companies, emerging growth companies, foreign private issuers, and registered investment companies, all reporting companies will have to disclose their pay ratio. The pay ratio disclosure must be included in any filing that requires executive compensation disclosure under Item 402 of Regulation S-K, which includes registration statements, proxy and information statements, and annual reports on Form 10-K. Even though uncertainty may loom around the viability of Dodd-Frank with President-elect Donald Trump’s transition underway, companies should continue to prepare pay ratio disclosures in anticipation for the 2018 proxy season. The Final Pay Ratio Disclosure Rule is available here.
PROXY ADVISORY FIRM UPDATES
Glass Lewis Updates
Glass, Lewis & Co. (Glass Lewis) recently published its 2017 Proxy Season Guidelines. The guidelines include a number of changes, a summary of which is outlined below.
Director Overboarding. Beginning February 2017, Glass Lewis will implement its policy regarding director board commitments. Glass Lewis will issue negative recommendations for directors that serve on more than five public company boards and company executives that serve on a total of two public company boards, including his or her own.
Governance for Newly Public Companies. For newly public companies, Glass Lewis will recommend against directors and members of governance committees who adopt provisions causing shareholders’ rights to become “severely restricted indefinitely.” Provisions such as anti-takeover mechanisms, including poison pills or classified boards, along with exclusive forum and fee-shifting provisions will all be considered for such recommendations.
Board Self-Assessment. Glass Lewis has updated its views regarding board evaluations to account for director skills and how those skills align with company strategy, as opposed to merely relying on tenure and age. Glass Lewis has further taken the stance that shareholders are better equipped to measure the board’s composition and approach to corporate governance.
Gender Pay Disclosure. Glass Lewis issued a new policy for reviewing companies’ gender pay equity, on a case-by-case basis. Upon review, Glass Lewis will generally recommend proposals requesting greater disclosure where inattention and inadequate policies expose the company to risk.
In its update, Glass Lewis also noted its support for proxy access and the management of environmental and social risks.
A copy of the full Glass Lewis Proxy Season Guidelines is available here.
Institutional Shareholder Services (ISS) also updated its proxy voting policy guidelines for 2017, which will affect shareholder meetings taking place after Feb. 1, 2017. The guidelines set forth a number of updates:
Director Overboarding. Similarly to Glass Lewis, ISS will also implement its policy regarding director overboarding, establishing the threshold for overboarding to five public boards for directors who are not company executives. The policy for overboarding of company executives threshold will remain at three total boards, including his or her own.
Undue Restrictions. A new ISS policy recognizes shareholders’ ability to amend bylaws as a fundamental right. Under the policy, ISS will vote against or withhold recommendation for members of the governance committee if the company’s charter imposes “undue restrictions” on shareholders’ rights to amend the bylaws. ISS also recognized complete prohibitions on binding shareholder proposals and share ownership requirements beyond the requirements of Rule 14a-8 as being undue restrictions on shareholders’ rights. ISS will generally recommend against governance committee members whose company has any of these provisions in its charter as well.
Unilateral Governance Changes. ISS updated its policy for governance of newly public companies to include consideration for any reasonable sunset provision when issuing recommendations against directors who have adopted charter or bylaw amendments that ISS views as materially adverse to shareholder rights or that implement a multi-class capital structure affording unequal voting rights prior to or in connection with an IPO.
Shareholder Ratification of Non-Employee Director Pay Program. As a result of recent highly publicized lawsuits involving excessive non-employee director compensation, ISS will consider qualitative factors such as the presence of problematic pay practices relating to director compensation and the quality of disclosures surrounding director compensation, when evaluating whether to recommend ratification programs regarding non-employee director compensation.
A copy of the full ISS 2017 Proxy Voting Guidelines is available here.
2016 IN REVIEW
During the 2016 proxy season, proxy access remained the predominant topic for the second consecutive year. In fact, shareholders submitted over 200 proxy access resolutions during the 2016 proxy season. The SEC’s 2010 proxy access rule, Rule 14a-11, provided that a shareholder was eligible to nominate proxy access candidates if the shareholder held at least 3 percent of the voting power for at least three years and was not prohibited from proposing a candidate under law or the company’s governing documents. Although this rule was vacated by the U.S. Court of Appeals for the D.C. Circuit in 2011 for being arbitrary, many shareholder proposals are still based on both Rule 14a-11 and the SEC’s amendments to Rule 14a-8. At the end of June 2016, over 250 companies, with 190 S&P 500 firms, established proxy access rights through voluntary adoptions and negotiated withdrawals. As a result, proxy access proposals continue to drive change and mold standard market terms.
As companies grew in 2016, so did the need to properly assess, implement and maintain internal controls over financial reporting (ICFR) pursuant to Rule 13a-15. ICFR is the process by which public companies provide reasonable assurance to the public that its financial statements are prepared in accordance with GAAP and are ultimately reliable. To comply, the SEC requires an annual management report of the company’s ICFR effectiveness, including disclosure of any material weakness that may create a possibility for the company to be unable to promptly detect or prevent a material misstatement on its financial statements, in Form 10-K. Companies should implement accounting controls designed to mitigate financial reporting risk and regularly evaluate any deficiencies. This is particularly important in light of revenue reporting rules issued by the Financial Accounting Standards Board becoming effective for public companies in 2018 and as new accounting standards are issued.
The comment periods have expired for other proposed changes to incentive-based compensation arrangements, the securities transaction settlement cycle, disclosure of payments by resource extraction issuers, pay-for-performance, hedging disclosure, and clawbacks. These changes have not been finalized. At this time, there is no anticipated date for implementation of these policies, so there will be no effect on 2017 filings.
OTHER SECURITIES LAW DEVELOPMENTS
Exemptions to Facilitate Intrastate and Regional Securities Sales and Offerings
In October 2016, the SEC adopted its final rule modernizing the existing intrastate offering framework by implementing amendments to Rule 147 under the Securities Act of 1933. The SEC’s amended Rule 147 provides a safe harbor under Section 3(a)(11) for issuers organized and principally doing business within a single state to offer and make sales of securities to resident purchasers of the same state. The amendments allow companies to raise money from investors within their state without simultaneously registering the offer and sale at the federal level.
The SEC’s new Rule 147A will expand the safe harbor to issuers that maintain a principal place of business in a different state from where it is incorporated and permit issuers to offer and make sales to residents in the state where it operates. Under Rule 147A, issuers will also be able to make offers across state lines, but sales remain limited to residents of the state.
The final rule also repealed Rule 505 and expanded Rule 504 of Regulation D, by increasing the aggregate amount of securities that may be offered and sold in any 12-month period from $1 million to $5 million. Additionally, the final rule disqualifies certain bad actors from participation in offerings under Rule 504. Through these amendments, the SEC sought to facilitate issuers’ capital raising efforts and provide additional investor protections.
Rule 147 and new Rule 147A will be effective on April 20, 2017. The amendments to Rule 504 will be effective on January 20, 2017. The removal of Rule 505 will be effective on May 22, 2017. All other amendments will be effective on May 22, 2017. The final rules are available here.
Supreme Court Decides First Insider Trading Case in Decades: Salman v. United States
In December 2016, after 20 years without a decision regarding the scope of insider trading, the Supreme Court held that even when no financial or tangible benefit is received, insider trading may arise when a tipper makes a “gift” of confidential information to a friend or relative, in Salman v. United States, No. 15-628 (U.S. Dec. 6, 2016). Although the tipper received no physical benefit from providing the information to the tippee, the Supreme Court found that the personal benefit received from bestowing a “gift” of confidential information to a family member or friend was enough for conviction, thus paving a smoother path for prosecutors seeking conviction.
The Supreme Court relied on the “personal benefit test” established in the seminal 1983 case Dirks v. SEC, 463 U.S. 646 (1983) but declined to clarify the scope of the “personal benefit test.” Additionally, the Supreme Court expressly rejected the Second Circuit’s decision in United States v. Newman, 773 F.3d 438 (2d Cir. 2014), which held that the government must prove that a tippee knew an insider received a personal benefit in exchange for disclosing confidential information, and any benefit received must be sufficiently consequential. While the Supreme Court only narrowly expanded the “personal benefit test” in Salman, it rejected the government’s argument that a gift to “anyone” satisfies the “personal benefit test” potentially providing for a distinction between disclosures to friends and family and those to market professionals. The Salman opinion can be found here.
Mutual Funds/Investment Companies: Rule 22e-4 and Swing Pricing
In October 2016, the SEC adopted its final Rule 22e-4. This new rule requires mutual funds and registered open-end management investment companies, including open-end exchange-traded funds (ETFs) to create a liquidity risk management program, in order to reduce the risks associated with fund redemption obligations. The liquidity risk management program must include periodic review of a fund’s liquidity risk, classification of the liquidity of fund portfolio investments, determination of a highly liquid investment minimum, a limitation on illiquid investments, and board oversight. The rule also permits open-end funds, excluding ETFs and money market funds to use swing pricing, which allows funds to adjust their net asset value per share in order to pass on the costs associated with trading activity to purchasing and redeeming shareholders. The rule requires board approval and periodic review of the funds’ swing factor upper limit and swing threshold. Companies will need to comply with the new Rule 22e-4 beginning on or after Jan. 17, 2017 and access to swing pricing will become available Nov. 19, 2018. The final rule is available here.
Investment Company Reporting Modernization
In October 2016, the SEC adopted new forms and amendments to modernize the reporting and disclosure requirements for registered investment companies. Form N-PORT, a new monthly reporting form requires registered funds other than money market funds to provide portfolio-wide and position-level holdings data. Reporting requirements include data related to the pricing of portfolio securities, information regarding repurchase agreements, securities lending activities, counterparty exposure, terms of derivatives contracts, and portfolio level and position level risk measures, to the SEC on a monthly basis. Form N-CEN will require registered investment companies to annually report certain census-type information as well. Finally, the SEC is adopting amendments to Forms N-1A, N-3 and N-CSR to require certain disclosures regarding securities lending activities. Collectively, these amendments will enhance investors’ ability to use and analyze data to ultimately make more informed investment decisions. The rule becomes effective Jan. 17, 2017, and most funds will be required to begin filing new Forms N-PORT and N-CEN after June 1, 2018. The final rule is available here.
In October 2016, the SEC proposed changes to the proxy rules requiring the use of universal proxy cards during a contested election. During a proxy contest, the proposal would require proxy contestants to provide shareholders a proxy card with the names of management and dissident director nominees listed. Similar to voting in person, the proposal would give shareholders the ability to vote for their preferred combination of board candidates through proxy. The proposal aims to remedy shareholders’ current inability to combine nominees to create their own slate during a contested election. The comment period for the proposal ends Jan. 9, 2017.