E-Minders December 2020

In This Issue:

E-Minders is our monthly e-mail newsletter containing the latest developments and practical guidance for corporate & securities law practitioners.

We view TheCorporateCounsel.net as the gathering place for the community and encourage those who may not yet be members to take advantage of a "Half-Price for Rest of '20" Trial" to see what you are missing. Here are "12 Good Reasons" to try us now.

You can subscribe below to receive a complimentary E-Minders newsletter - even if you aren't a member TheCorporateCounsel.net. Our hope is that once you get to know us, you will understand the true value of joining our community. Note that members of TheCorporateCounsel.net should sign up below for E-Minders too, as you won't automatically receive it by being a member (since we may not have your email address).

Our Enhanced "In-House Accelerator": If you're relatively new to being in-house - or you want to improve your client work by gaining that perspective - take advantage of our "In-House Accelerator." We're now offering an enhanced version as an add-on exclusively to members of TheCorporateCounsel.net, which makes practical guidance from across the site accessible - all in one place. This training consists of 221 FAQs from our "In-House Accelerator" paperback (here's the "Table of Contents") - which you can either read online or listen to via our podcast series. Then, test your knowledge with our quizzes!

It's Here! 2021 Edition of Dunshee & Jokela's "Proxy Season Disclosure Treatise": Liz Dunshee & Lynn Jokela wrapped up the 2021 Edition of the definitive guidance on proxy season disclosure: Dunshee & Jokela's "Proxy Season Disclosure Treatise." The entire treatise spans 1900 pages and 33 chapters - all carefully organized for easy navigation. Here's the "Detailed Table of Contents" listing the topics so you can get a sense of the Treatise's practical nature. Plus, anyone who purchases the Treatise also receives immediate access to an e-book supplement that's now available and incorporates the latest amendments to Regulation S-K and Rule 14a-8. Order on TheCorporateCounsel.net so that you can have your copy in time for the upcoming proxy season.

It's Here! 2021 Edition of Dunshee & Jokela's "In-House Essentials Treatise": Liz Dunshee & Lynn Jokela wrapped up the 2021 Edition of the definitive guidance on securities law for the in-house lawyer: Dunshee & Jokela's "In-House Essentials Treatise." With over 2000 pages - spanning 22 chapters - you will need this practical guidance for the challenges ahead. Here's the "Detailed Table of Contents" listing the topics so you can get a sense of the Treatise's practical nature. Order on TheCorporateCounsel.net.

It's Here! Lynn & Borges' "Executive Compensation Disclosure Treatise": The highly anticipated 2021 edition of Lynn & Borges' "Executive Compensation Disclosure Treatise" is here. With heightened attention being paid to executive & director pay, and new proxy advisor rules, the latest edition is critical for the upcoming proxy season. Here's the "Detailed Table of Contents" listing the topics so you can get a sense of the Treatise's practical nature. Order a hard copy on CompensationStandards.com. As always, Dave Lynn and Mark Borges have ensured that the treatise is comprehensive and practical.

Over 300 Checklists: Dunshee's "Practical Corporate Governance Treatise": If you're looking for "A to Z" practical guidance, you need Dunshee's "Practical Corporate Governance Treatise." The "Detailed Table of Contents" is posted on TheCorporateCounsel.net listing the topics so you can get a sense of the variety of topics covered. With over 1700 pages—including over 300 checklists—this tome is the definition of being practical. You can return it any time within the first year and get a full refund if you don't find it of value. Order on TheCorporateCounsel.net today!

Deal Lawyer Training: Jenkins' "Practical M&A Treatise": Based on his 30+ years of deal work, members are saying that John Jenkins' "Practical M&A Treatise" should be required reading for all M&A associates. Spanning 659 pages, John writes in a practical style — using stories & examples to make even the most complex deal issues easy-to-understand. Here's the "Detailed Table of Contents" listing the topics so that you can see for yourself.

Don't miss out on this popular training tool – order it today. And for your convenience, we're offering it as either a hard-copy print book — or as just an online version. So there are two different ways to order the "Practical M&A Treatise":

  1. Order the hard-copy of the "Practical M&A Treatise"
  2. Order the online version of the "Practical M&A Treatise

"101 Pro Tips — Career Advice for the Ages" Paperback! If you're working with junior associates, get them off on the right foot. Read — or share — career insight from Broc Romanek & John Jenkins by ordering their paperback — "101 Pro Tips — Career Advice for the Ages". Here's the "Table of Contents." It's free for members of TheCorporateCounsel.net (but it does cost $20 in shipping & handling).

This book is designed for fairly young lawyers — both in law firms and in companies. It's written in an "easy to read" style, complete with some stories & anecdotes to make it interesting. This is a unique offering in our field — and we've heard more than one member say that they're getting copies for all of their new associates. Members can request it now.

"Deal Tales" - A Three Volume Set! Education by entertainment! This “Deal Tales” series of three paperback books teaches the kind of things that you won't learn at conferences, nor in treatises or firm memos. Here's the "Table of Contents" for each volume rolled into one. With the set containing over 600 pages, John Jenkins - a 30-year vet of the deal world - brings his humorous M&A stories to bear. Order "Deal Tales" today!

Upcoming Webcasts on TheCorporateCounsel.net: Join us on December 8th for the webcast - "Modernizing Your Form 10-K: Incorporating Reg S-K Amendments" - to hear Scott Kimpel of Hunton Andrews Kurth, John Newell of Goodwin Procter and Kenisha Nicholson of Wilson Sonsini discuss how the SEC's recent amendments to modernize Regulation S-K will affect your next Form 10-K, including, among other things, how to tackle human capital disclosures, the impact on disclosure controls & procedures and other interpretive issues.

If you attend the live version of December 8th program, CLE credit will be available in the following 10 states: CA, FL, IL, NC, NJ, NY, PA, TX, VA, WA. In order to receive CLE credit, you need to fully respond to the pop-up prompts throughout the live webcast. Please see these CLE FAQs for more information.

There is no cost for this webcast if you are a member of TheCorporateCounsel.net. For the December 8th program, the webcast cost for non-members is discounted to $295 - which will count toward your 2021 membership rate should you decide to subscribe to TheCorporateCounsel.net before the end of this year. You can renew or sign up for a no-risk trial, or by fax or mail via this order form. If you need assistance, send us an email at info@ccrcorp.com - or call us at 800.737.1271.

And join us on January 14th for the webcast - "Glass Lewis Dialogue: Forecast for the 2021 Proxy Season" - to hear Courteney Keatinge, of Glass Lewis, Ning Chiu of Davis Polk and Bob Lamm of Gunster discuss what to expect with the new proxy adviser rules, investors' focus on diversity and other ESG issues, virtual meetings and other pandemic-related developments.

And join us on February 2nd for the webcast - "Shareholder Proponents Speak: 14a-8 Fallout & Other Initiatives" - to hear Andy Behar of As You Sow, Jonas Kron of Trillium Asset Management and Jim McRitchie, Shareholder Advocate & publisher of CorpGov.net discuss how the recent amendments to Rule 14a-8 will impact shareholder engagement and governance along with expectations for the potential impact on the volume of shareholder proposals, unintended consequences and expectations for the phase-in transition period.

And join us on February 11th for the webcast - "Audit Committees in Action: The Latest Developments" - to hear Consuelo Hitchcock of Deloitte, Josh Jones of EY and Mike Scanlon of Gibson Dunn discuss evolving audit committee oversight responsibilities, updates to the auditor independence rules, the impact of Covid-19 to oversight of internal controls, internal audit risk assessments and external audit assurance for ESG data.

There is no cost for these webcasts if you are a member of TheCorporateCounsel.net. If you are not a member, take advantage of our no-risk trial to access the programs. You can sign up for this no-risk trial online, send us an email at info@ccrcorp.com or call us at 800.737.1271.

Upcoming Webcasts on CompensationStandards.com: Join us on December 15th for the webcast - " Covid-19 Pay Adjustments: Engagement, Decision-Making & Documentation" - to hear Jim Kzirian of Meridian, Mike Melbinger of Winston & Strawn and CompensationStandards.com and Reid Pearson of Alliance Advisors discuss how companies are handling and explaining pay decisions resulting from economic fallout and operational disruptions related to the Covid-19 pandemic.

And join us on January 21st for the webcast - " The Latest: Your Upcoming Proxy Disclosures" - to hear Mark Borges of Compensia and CompensationStandards.com, Alan Dye of Hogan Lovells and Section16.net, Dave Lynn of Morrison & Foerster and TheCorporateCounsel.net, and Ron Mueller of Gibson Dunn discuss all the latest guidance - including the latest SEC positions - about how to use your executive & director pay disclosure to improve voting outcomes and protect your board, as well as how to handle the most difficult ongoing issues that many of us face.

And join us on February 21st for the webcast - "Your CD&A: A Deep Dive on Pandemic Disclosures" - to hear Mike Kesner of Pay Governance, Hugo Dubovoy of W.W. Grainger and Cam Hoang of Dorsey discuss how to use your CD&A to tell your story and maintain high say-on-pay support, trends and investor expectations for COVID-related pay decisions, addressing "red flags" through storytelling, linking your CD&A to your broader ESG and human capital initiatives and ensuring consistency between your CD&A and minutes.

No registration is necessary - and there is no cost - for these webcasts for CompensationStandards.com members. If you are not a member, take advantage of our no-risk trial to access the programs. You can sign up online, send us an email at info@ccrcorp.com - or call us at 800.737.1271.

SEC Amends MD&A and Financial Disclosure Rules!

The SEC continued this year's rulemaking spree by adopting amendments to enhance and simplify the financial disclosure provisions of Regulation S-K. The amendments are significant - they eliminate the requirement for Selected Financial Data, streamline the requirement to disclose Supplementary Financial Information, and amend MD&A requirements. Here's the 196-page adopting release - a tabular summary of the changes begins on page 8.

As noted in the SEC's press release, the amendments reflect the Commission's preference for a principles-based approach to disclosure. Here's an excerpt:

The changes to Items 301, 302, and 303 of Regulation S-K sharpen the focus on material information by:

– Eliminating Item 301 (Selected Financial Data); and

– Modernizing, simplifying and streamlining Item 302(a) (Supplementary Financial Information) and Item 303 (MD&A). Specifically, these amendments:

  • Revise Item 302(a) to replace the current requirement for quarterly tabular disclosure with a principles-based requirement for material retrospective changes;
  • Add a new Item 303(a), Objective, to state the principal objectives of MD&A;
  • Amend current Item 303(a)(1) and (2) (amended Item 303(b)(1)) to modernize, enhance and clarify disclosure requirements for liquidity and capital resources;
  • Amend current Item 303(a)(3) (amended Item 303(b)(2)) to clarify, modernize and streamline disclosure requirements for results of operations;
  • Add a new Item 303(b)(3), Critical accounting estimates, to clarify and codify Commission guidance on critical accounting estimates;
  • Replace current Item 303(a)(4), Off-balance sheet arrangements, with an instruction to discuss such obligations in the broader context of MD&A;
  • Eliminate current Item 303(a)(5), Tabular disclosure of contractual obligations, in light of the amended disclosure requirements for liquidity and capital resources and certain overlap with information required in the financial statements; and
  • Amend current Item 303(b), Interim periods (amended Item 303(c)) to modernize, clarify and streamline the item and allow for flexibility in the comparison of interim periods to help registrants provide a more tailored and meaningful analysis relevant to their business cycles.

In addition, the Commission adopted certain parallel amendments to the financial disclosure requirements applicable to foreign private issuers, including to Forms 20-F and 40-F, as well as other conforming amendments to the Commission's rules and forms, as appropriate.

The amendments will be effective 30 days after publication in the Federal Register. Once effective, early application of the amended rules is permitted so long as companies provide disclosure responsive to an amended item in its entirety. Compliance with the amended rules won't be required until a company's first fiscal year ending on or after the date that is 210 days after publication in the Federal Register - for calendar-year companies, that will mean mandatory compliance will begin with their Form 10-K for the 2021 fiscal year that's filed in 2022. For registration statements, companies will be required to apply the amended rules if the registration statement on its initial filing date is required to contain financial statements for a period on or after the mandatory compliance date.

With all the recent SEC rulemaking, you'd be forgiven if you forgot that the SEC just proposed these amendments back in January - and at the time, that Commissioner Allison Herren Lee issued a dissenting statement criticizing the proposal for not addressing climate risk disclosures. The final amendments also don't address climate risk disclosures. Commissioner Lee issued a joint statement with Commissioner Caroline Crenshaw in which they voice two concerns: first, that the amendments eliminate the contractual obligations table and second, the principles-based disclosure requirements don't address climate risk.

The last sentence of Commissioner Lee and Crenshaw's statement says they're ready to start working on standardized ESG disclosure: ‘There's no time to waste in setting to ourselves to this task, and we look forward to rolling up our sleeves to establish requirements for standard, comparable, and reliable climate, human capital, and other ESG disclosures.'

SEC Simplifies Exempt Offering Framework!

Following an open meeting, the SEC announced that it adopted amendments to simplify & harmonize the private offering framework. The Commission had proposed these rules in March following a concept release last summer. Here are highlights from the SEC's Fact Sheet about what the amendments do:

–Establish a new integration framework that provides a general principle that looks to the particular facts and circumstances of two or more offerings - and focuses the analysis on whether the issuer can establish that each offering either complies with the registration requirements of the Securities Act, or that an exemption from registration is available for the particular offering. The amendments also provide 4 non-exclusive safe-harbors from integration.

–Increase the offering limits for Reg A, Regulation Crowdfunding, and Rule 504 offerings, and revise certain individual investment limits

–Set clear and consistent rules governing certain offering communications, including permitting certain "test-the-waters" and "demo day" activities

–Harmonize certain disclosure and eligibility requirements and bad actor disqualification provisions

As has become the norm, the amendments were adopted by a 3-2 vote, with Commissioners Hester Peirce and Elad Roisman saying the rules don't go far enough, and Commissioners Allison Herren Lee and Caroline Crenshaw saying that the rules strip away investor protections and were adopted without adequate data. Here's a link to all of the statements from the Commissioners and SEC Chair Jay Clayton.

The amendments will go effective 60 days after publication in the Federal Register, except for the extension of the temporary Regulation Crowdfunding provisions, which will be effective upon publication in the Federal Register. Publication often takes about a month - so if that's the case, that would put us in the February time frame for this new private offering regime.

We'll be updating our "Reg D Handbook" for these new rules as well as the changes to the accredited investor definition that go effective next month. We'll also be posting memos in our "Private Placements" Practice Area.

Corp Fin Updates "Securities Act" CDI (Withdraws 6 Others)

In November, Corp Fin updated one and withdrew several Securities Act CDIs. These CDIs relate to equity line financing arrangements and PIPEs that can raise issues under Securities Act Section 5 - CDI 139.13 has been updated and CDIs 139.15, 139.16, 139.17, 139.18, 139.19 and 139.20 have been withdrawn. Here's updated CDI 139.13, which clarifies when a company may file a resale registration statement:

Question 139.13

Question: In many equity line financings, the company will rely on the private placement exemption from registration to sell the securities under the equity line and will then seek to register the "resale" of the securities sold in the equity line financing. When may a company file a registration statement for the resale by the investors of securities sold in a private equity line financing?

Answer: In these types of equity line financings, the company's right to put shares to the investor in the future and the lack of market risk resulting from the formula price differentiate private equity line financings from financing PIPEs (private investment, public equity). We, therefore, analyze private equity line financings as indirect primary offerings, even though the "resale" form of registration is sought in these financings.

The at-the-market limitations contained in Rule 415(a)(4) would otherwise prohibit market-based formula pricing for issuers that are not eligible to conduct primary offerings on Form S-3 or Form F-3. Nevertheless, we will not object to such companies registering the "resale" of the securities prior to the exercise of the equity line put if the transactions meet the following conditions:

  • the company and the investor have entered into a binding agreement with respect to the private equity line financing at the time the registration statement is filed;
  • the "resale" registration statement is on a form that the company is eligible to use for a primary offering;
  • there is an existing market for the securities, as evidenced by trading on a national securities exchange or alternative trading system, which is a registered broker-dealer and has an active Form ATS on file with the Commission; and
  • the equity line investor is identified in the prospectus as an underwriter, as well as a selling shareholder.

We will not object to the filing of a registration statement for a private equity line financing prior to the issuance of securities by the company under the equity line even when there are contingencies attached to the investor's obligation to accept a put of shares from the company, as long as the above conditions are satisfied and the following terms of the investment have been agreed upon by both parties and disclosed by the company at the time that the resale registration statement is filed:

  • the number of shares registered for resale;
  • the maximum principal amount available under the equity line agreement;
  • the term of the agreement; and
  • the full discounted price (or formula for determining it) at which the investor will receive the shares.

[November 13, 2020]

SEC Adopts Amendments to Reg S-T Permitting Use of Electronic Signatures!

The SEC announced that it adopted rules to facilitate electronic submission of documents. Welcome news to many, the Commission adopted rule amendments to permit the use of electronic signatures used in connection with many documents filed with the Commission. The Commission also adopted rule amendments to require electronic filing and service of documents in administrative proceedings. Here's an excerpt from the Commission's press release about use of electronic signatures:

Today's amendments permit a signatory to an electronic filing who follows certain procedures to sign an authentication document through an electronic signature that meets certain requirements specified in the EDGAR Filer Manual. In addition, the Commission amended certain rules and forms under the Securities Act, Exchange Act, and Investment Company Act to allow the use of electronic signatures in authentication documents in connection with certain other filings when these filings contain typed, rather than manual, signatures.

Back in April, Lynn blogged about the rulemaking petition requesting the Commission amend rules under Reg S-T to permit use of electronic signatures when filing documents with the SEC - the SEC's press release says that nearly 100 public companies joined in support of the petition. With electronic signatures being more the norm these days, these amendments will make things simpler, especially as many continue working remotely. See this Fenwick memo for more. The electronic signature rule amendments will be effective upon publication in the Federal Register.

Reg S-T: Staff Allows Early "Electronic Signature" Compliance

Following the SEC's amendments to Reg S-T, the Corp Fin Staff updated its statement on use of electronic signatures in light of Covid-19 concerns to say that it would not recommend enforcement action with respect to Reg S-T signature requirements for companies that comply with amended Rule 302(b) in advance of the effective date.

As Liz blogged back in June, the statement also extends for an indefinite time the temporary "Covid-19" signature relief that allows signatories to retain manually signed pages and deliver them to the company for retention as soon as reasonably practicable.

Reg S-K Modernization: Corp Fin Issues 3 Transitional FAQs

Corp Fin issued three FAQs to address transitional issues that companies have been wondering about in light of the recent amendments of Regulation S-K Items 101, 103 and 105, which are effective for filings made after today. Thanks to the Staff for addressing these questions - and it was also great that the SEC sent out a separate email showing exactly which interpretations had been added. Here are the topics that are covered (also see this Cooley blog):

  1. Whether a Form S-3 prospectus supplement that's filed after November 9th, relating to a registration statement that became effective before that date, has to comply with the new rules.
  2. Whether new Item 101 requires companies to disclose info in the Form 10-K for more than the fiscal year covered by the report.
  3. Whether a company must always provide a full discussion of the general development of its business in an annual report or registration statement that requires Item 101 disclosure.

Corp Fin's New Disclosure Guidance for China-Based Companies

Corp Fin added to its "CF Disclosure Guidance Topic" series with "Topic No. 10: Disclosure Considerations for China-Based Issuers." It summarizes risks and corporate law & reporting differences that the may be unique to companies that are based in or have the majority of their operations in China - and lists questions for these companies to consider when drafting disclosures.

Corp Fin's disclosure guidance isn't completely unexpected. In August, Liz blogged about recommendations from the "President's Working Group on Financial Markets" - a regulatory council whose members include SEC Chair Jay Clayton and Treasury Secretary Steven Mnuchin. The recommendations included the adoption of more specific disclosure requirements - or interpretive guidance - about the risks of investing in companies from "non-cooperating jurisdictions" like China.

The working group also recommended enhanced listing standards to ensure PCAOB access to audit work papers for Chinese companies. This Bloomberg article says that the SEC is planning to move forward with that initiative and might issue a proposal before year-end that could result in many China-based companies being delisted. Adoption of any proposal would then be left in the hands of the new SEC Chair - whoever that ends up being.

SEC Proposes Amendments to Form S-8 & Rule 701

The SEC continued its active year by announcing proposed changes to Form S-8 and Rule 701. The amendments suggested by the 156-page proposing release are responsive to comments that the Commission received on its 2018 concept release. Here are the highlights from the SEC's Fact Sheet (we'll be posting memos in our "Form S-8" and "Rule 701" Practice Areas):

With respect to Rule 701, the proposed amendments would:

  • Revise the additional disclosure requirements for Rule 701 exempt transactions exceeding $10 million;
  • Revise the time at which such disclosure is required to be delivered for derivative securities that do not involve a decision by the recipient to exercise or convert in specified circumstances where such derivative securities are granted to new hires;
  • Raise two of the three alternative regulatory ceilings that cap the overall amount of securities that a non-reporting issuer may sell pursuant to the exemption during any consecutive 12-month period; and
  • Make the exemption available for offers and sales of securities under a written compensatory benefit plan established by the issuer's subsidiaries, whether or not majority-owned.

With respect to Form S-8, the proposed amendments would:

  • Implement improvements and clarifications to simplify registration on the form, including:
    • Clarifying the ability to add multiple plans to a single Form S-8;
    • Clarifying the ability to allocate securities among multiple incentive plans on a single Form S-8; and
    • Permitting the addition of securities or classes of securities by automatically effective post-effective amendment.
  • Implement improvements to simplify share counting and fee payments on the form, including:
    • Requiring the registration of an aggregate offering amount of securities for defined contribution plans;
    • Implementing a new fee payment method for registration of offers and sales pursuant to defined contribution plans; and
    • Conforming Form S-8 instructions with current IRS plan review practices.
  • Revise Item 1(f) of Form S-8 to eliminate the requirement to describe the tax effects of plan participation on the issuer.

With respect to both Rule 701 and Form S-8, the proposals would:

  • Extend consultant and advisor eligibility to entities meeting specified ownership criteria designed to link the securities to the performance of services; and
  • Expand eligibility for former employees to specified post-termination grants and former employees of acquired entities.

There's More! SEC Proposes Temporary Expansion of Compensatory Offerings to Gig Workers

The SEC saved the more interesting – and controversial – part of its "compensatory offering" modernization for an entirely separate proposal – which would, for a temporary five-year period and subject to a number of conditions, permit companies to provide equity compensation to gig workers who provide services (not goods) to the company (or as the SEC calls them, "platform workers"). Commissioners Hester Peirce & Elad Roisman issued a statement in support of the proposal. Commissioners Allison Herren Lee & Caroline Crenshaw dissented – and they were careful to point out that they did support the other proposal.

Here's the highlights from the SEC's Fact Sheet:

Under the amendments, an issuer would be able to use the Rule 701 exemption to offer and sell its securities on a compensatory basis to platform workers who, pursuant to a written contract or agreement, provide bona fide services by means of an internet-based platform or other widespread, technology-based marketplace platform or system provided by the issuer if:

  • the issuer operates and controls the platform;
  • the issuance of securities to participating platform workers is pursuant to a compensatory arrangement, as evidenced by a written compensation plan, contract, or agreement;
  • no more than 15% of the value of compensation received by a participating worker from the issuer for services provided by means of the platform during a 12-month period, and no more than $75,000 of such compensation received from the issuer during a 36-month period, shall consist of securities, with such value determined at the time the securities are granted;
  • the amount and terms of any securities issued to a platform worker may not be subject to individual bargaining or the worker's ability to elect between payment in securities or cash; and
  • the issuer must take reasonable steps to prohibit the transfer of the securities issued to a platform worker pursuant to this exemption, other than a transfer to the issuer or by operation of law.

The proposed amendments would also permit an Exchange Act reporting company to make registered securities offerings to its platform workers using Form S-8. The same conditions proposed for Rule 701 issuances would apply to issuances to platform workers on Form S-8, except for the proposed transferability restriction.

The proposed amendments would not permit the issuance of securities for platform worker activities relating to the sale or transfer of permanent ownership of discrete, tangible goods. Depending on the results of the initial expanded use of Rule 701 and Form S-8, if adopted, the Commission could consider expanding eligibility to other activities, such as selling goods or other non-service providing activities in the future.

The proposed amendments would require companies that sell securities to gig workers to furnish information to the SEC at 6-month intervals, to help the Commission decide whether the rule changes should expire, be extended or be made permanent.

Both proposals will be subject to a 60-day comment period following their publication in the Federal Register. Time will tell whether the next SEC Chair will carry either of these proposals across the finish line.

Corp Fin Releases Updated Financial Reporting Manual

Corp Fin announced an update to the Division's Financial Reporting Manual. The Manual is updated as of October 30, 2020 and sections with updates are marked with the date tag "Last updated: 10/30/2020." Here's a summary of some of the changes this update includes:

–Revised to reflect changes to smaller reporting company, accelerated filer and large accelerated filer definitions and amendments from Disclosure Update and Simplifications;

–Clarified the application of Rule 3-13 to Form 8-K and the income test for Rule 3-09 financial statements when there is more than one equity method investee;

–Clarified audit requirements for a special-purpose acquisition company target in Form S-4/F-4;

–Described the substantial deficiency situation impact on certain rule and eligibility standards;

–Included another example of a "To Be Issued" accountant's report; and

–Removed outdated references and updated for changes to GAAP, guidance issued by the PCAOB, Division of Corporation Finance, and SEC's Office of Chief Accountant in the last few years.

We'll be on the lookout for more guidance coming from Corp Fin, given Director Bill Hinman's upcoming departure. Back in 2016 when Keith Higgins prepared for his departure, Corp Fin issued 35 new CDIs in a single day.

PCAOB Issues Audit Committee Resource on Auditing Estimates & Use of Specialists

It's been almost two years since the PCAOB adopted a new requirements related to auditing accounting estimates, including fair value measurements, and using the work of specialists. With those requirements set to take effect for audits of financial statements for fiscal years ending on or after December 15, 2020, the PCAOB issued a resource aimed at helping audit committees understand the requirements. The PCAOB's memo provides a list of questions for audit committees to consider asking their auditors, here's the memo's key takeaways:

–The effects of the new requirements will not be uniform across all audits

–The extent of effects of the new requirements will depend on the nature and extent of accounting estimates included in the company's financial statements, and also on whether the company uses a specialist

–The new standard and amendments do not change the requirements for the auditor's communications with audit committees, including those communications related to critical accounting estimates

–Auditors are applying these new requirements in extraordinary times and in situations that continue to evolve due to the Covid-19 pandemic

Comment Letter Trends: Top 10 Topics in Reviews

Deloitte recently issued a 218-page roadmap on comment letter trends that includes developments on financial reporting topics through November 6, 2020. In terms of insights about comments related to the Covid-19 pandemic, the report says that early trends indicate that MD&A and risk factor trends have been main focus areas. Good news included in the report is that over the last five years, there's been a notable decline in the number of reviews with comment letters and the number of comment letters issued. For those beginning to prepare for year-end reporting, it's helpful to be aware of the leading areas for comment and the report lists these as the "top 10":

  1. MD&A - comments increased on results of operations, highlighting the Staff's continuing focus on greater transparency and specificity in disclosures about operating results. Comments on Covid-19 have focused on the pandemic's impact on future operating results and future financial condition, known trends or uncertainties related to COVID-19 that will have a material favorable or unfavorable impact on income from continuing operations, and discussions of current liquidity and availability of financial resources
  2. Non-GAAP measures - the report lists several areas of continued focus, including whether there is undue prominence of non-GAAP measures, enhancing disclosure related to the purpose and use of the measures, identification and clear labeling and reconciliation requirements
  3. Revenue recognition - largest volume of comments focused on disclosure of significant judgments used in applying the standard
  4. Segment reporting - identification and aggregation of operating segments, changes in reporting segments, considerations for entities with a single reportable segment and entity-wide disclosures about products or services
  5. Signatures, exhibits and agreements - form and content of certifications, and material contracts, including requests for them to be filed as exhibits
  6. ICFR - among others, evaluation of severity of control deficiencies, including those related to immaterial misstatements and disclosures of material changes in ICFR, including the impact and remediation of material weaknesses
  7. Fair value - valuation techniques and inputs used, use of third-party pricing services and fair value estimates related to revenue recognition, goodwill impairment and share-based payments
  8. Contingencies - focus on specificity of disclosures and amounts accrued, estimates for reasonably possible losses and disclosures related to loss contingencies and whether they have been updated over time as circumstances change
  9. Intangible assets and goodwill - goodwill impairment disclosures, including early-warning disclosures and the specific circumstances that led to the charge in the period of impairment rather than general market factors, asset groupings for impairment testing and whether or why an interim impairment test was performed and the results of the test
  10. Inventory and cost of sales - accounting policy disclosures regarding inventory valuation, including adjustments related to excess and obsolete inventories

SEC's Private Offering Rules: Updated Chart of Registration Alternatives

Last spring, John blogged about the chart Stan Keller, Jean Harris and Rich Leisner kindly sent along reflecting the proposed changes to the private offering framework. Now that the amendments have been adopted, Stan, Jean and Rich sent along an updated Chart of Alternatives to Registration reflecting the final amendments to those alternatives - and included very helpful printing instructions to ensure the chart is printable in its most useful form as a handy reference booklet. Check it out!

ISS Issues 2021 Policy Updates

In mid-November, ISS announced its policy updates for next year. Here's the policy document. The big news this year is that ISS is ratcheting up the pressure on companies to improve board diversity, and taking a more accommodating approach to exclusive forum bylaws. Here are a couple of excerpts from ISS's executive summary of the policy changes:

–For 2021, ISS benchmark research reports for companies in the Russell 3000 or S&P 1500 indexes will highlight boards that lack racial and ethnic diversity (or lack disclosure of such) to help investors identify companies with which they may wish to engage and foster dialogue between investors and companies on this topic.

–For 2022, for companies in the Russell 3000 or S&P 1500 indexes where the board has no apparent racially or ethnically diverse members, ISS will recommend voting against or withhold from the chair of the nominating committee (or other directors on a case-by-case basis).

–Under the new policy, ISS will generally recommend a vote for federal forum selection provisions in the charter or bylaws that specify "the district courts of the United States" as the exclusive forum for federal securities law matters and recommend a vote against provisions that restrict the forum to a particular federal district court.

–Under the updated policy for exclusive forum provisions for state law matters, in the absence of concerns about abuse of the provision or about poor governance more generally, ISS will generally recommend in favor of charter or bylaw provisions designating courts in Delaware as the exclusive forum for state corporate law matters at companies incorporated in that state.

We'll be posting memos in our "Proxy Advisors" Practice Area. With proxy season just around the corner, check out this Davis Polk blog for a list of key dates on ISS & Glass Lewis's calendars for the upcoming months.

Glass Lewis '21 Voting Guidelines: Diversity and E&S Phase-Ins

As we approached the Thanksgiving holiday, Glass Lewis announced the publication of its 2021 Voting Guidelines. The biggest changes are that Glass Lewis is expanding its board gender diversity policy to vote against nominating chairs if there are fewer than two female directors, beginning in 2022 (they already recommend against the nominating chairs of all-male boards) – and they're phasing in additional scrutiny of the descriptions of board-level E&S oversight.

As always, the first few pages of the Guidelines summarize the policy changes. Here's a few highlights:

Board Gender Diversity: Beginning in 2021, we will note as a concern boards consisting of fewer than two female directors. Our voting recommendations in 2021 will be based on our current requirement of at least one female board member; but, beginning with shareholder meetings held after January 1, 2022, we will generally recommend voting against the nominating committee chair of a board with fewer than two female directors. For boards with six or fewer total members, our existing voting policy requiring a minimum of one female director will remain in place.

Disclosure of Director Diversity & Skills: Beginning with the 2021 proxy season, our reports for companies in the S&P 500 index will include an assessment of company disclosure in the proxy statement relating to board diversity, skills and the director nomination process.

Board Refreshment: Beginning in 2021, we will note as a potential concern instances where the average tenure of non-executive directors is 10 years or more and no new independent directors have joined the board in the past five years. We will not be making voting recommendations solely on this basis in 2021; however, insufficient board refreshment may be a contributing factor in our recommendations when additional board-related concerns have been identified.

E&S Oversight: Beginning in 2021, Glass Lewis will note as a concern when boards of companies in the S&P 500 index do not provide clear disclosure concerning the board-level oversight afforded to environmental and/or social issues. Beginning with shareholder meetings held after January 1, 2022, we will generally recommend voting against the governance chair of a company in the aforementioned index who fails to provide explicit disclosure concerning the board's role in overseeing these issues. While we believe that it is important that these issues are overseen at the board level and that shareholders are afforded meaningful disclosure of these oversight responsibilities, we believe that companies should determine the best structure for this oversight for themselves.

SPACs: We have added a new section detailing our approach to common issues associated with special purpose acquisition companies ("SPACs"), including our generally favorable view of proposals seeking to extend business combination deadlines, as well as our approach to determining the independence of board members at a post-combination entity who previously served as executives of the SPAC. Absent any evidence of an employment relationship or continuing material financial interest in the combined entity, we will generally consider such directors to be independent.

Glass Lewis also made several clarifying amendments – including that their standard policy on virtual shareholder meetings is now in effect, and they expect robust disclosure about the ability of shareholders to participate in the meeting.

We'll be posting memos in our "Proxy Advisors" Practice Area – and you should also mark your calendar for our January 14th webcast, which is a dialogue with Courteney Keatinge, Senior Director of ESG Research at Glass Lewis. Members of TheCorporateCounsel.net can access that webcast for free – if you're not a member, you can try a no-risk trial.

"Human Capital" Disclosure: SASB Sums Up Its Resources

SASB published this 10-page "Human Capital Bulletin" - which summarizes elements of SASB standards that can help companies prepare human capital disclosure as required by the recent amendments to Reg S-K. Here's what it includes:

  • A list of SASB industry standards that contain topics and metrics related to human capital.
  • An overview of selected human capital-related topics and metrics across all 77 SASB industry standards - specifically, standards on labor practices; employee health & safety; employee engagement, diversity & inclusion; and supply chain management
  • A summary of SASB's Human Capital Management Research Project, which has the objective of identifying opportunities for the SASB Standards to further account for human capital-related risks and opportunities

The new Human Capital Bulletin follows updates earlier in the month to this statement from the SASB Investor Advisory Group. The statement - which hadn't been updated since the Investor Advisory Group was formed in 2016 - urges companies to include SASB-based disclosures in their ESG communications to investors and now emphasizes that other reporting standards and frameworks may complement SASB standards, but aren't replacements for them. Also see this SASB press release.

For more tips on human capital disclosure, make sure to tune in to our upcoming webcast, "Modernizing Your Form 10-K: Incorporating Reg S-K Amendments," on Tuesday, December 8th, 2020 at 11am Eastern (note, this is an earlier time of day than most of our webcasts). If you attend the the live version of this program, CLE credit is available in the following 10 states:

Members of this site are able to attend this critical webcast at no charge. If not yet a member, try a no-risk trial now. For this program, the webcast cost for non-members is discounted to $295 - which will count toward your 2021 membership rate should you decide to subscribe to TheCorporateCounsel.net before the end of this year. You can renew or sign up for a no-risk trial online - or by fax or mail via this order form. If you need assistance, send us an email at info@ccrcorp.com - or call us at 800.737.1271.

DOL Leaves "ESG Investing" on Life Support

Then again, this administration has done a thing or two to try to divert attention from ESG issues. In early November, the Department of Labor published the final version of its rule to require private-sector retirement plans to prioritize "pecuniary factors" when making investment decisions (Liz bloggedabout the proposal on our Proxy Season Blog back in June). It doesn't expressly limit the use of ESG-themed investments, as had been proposed - but the substance of the proposal remained largely intact. This "Plan Adviser" articlegives more detail:

The final version does include some significant changes compared with the proposal, which will seemingly protect the use of ESG investing to some extent. Chief among these changes is the fact that the text of the final rule no longer refers explicitly to "ESG." Rather, it presents a framework that emphasizes that retirement plan fiduciaries should only use "pecuniary" factors when assessing investments of any type - which is to say that they should only use factors that have a material, demonstrable impact on performance. In this sense, the rule does seem to leave ample room for the use of ESG-minded investments, presuming these types of investments are assessed in a purely economic manner and that their financial features make them prudent investments.

The preamble to the final rule, on the other hand, does speak directly to the ESG topic. The DOL and EBSA officials said the preamble seeks to help stakeholders understand how the pecuniary framework may apply to the assessment of ESG investments in practice.

Another important change emphasized by senior DOL and EBSA leaders is that the final rule does not explicitly prohibit the selection of a fund that uses ESG factors as a plan's qualified default investment alternative (QDIA). Once again, the final rule requires that a fund being selected as the QDIA must be assessed using purely pecuniary factors that are directly material to its financial performance. Beyond this, the final rule does stipulate that a fund is not appropriate as a QDIA if its stated objectives include explicitly non-pecuniary factors - for example addressing climate change itself, rather than addressing climate change's impact on the financial outcomes of investors.

Board Diversity: Companies Focus On Overboarding to Move the Needle

Liz blogged earlier about a recent report from the NYSE & Diligent that said that 81% of directors indicated that their board either already has a plan for increasing boardroom diversity or will have one soon, but that 45% lacked a specific timeframe for meeting diversity goals. However, the report goes on to say that those companies that have established a timeframe plan to move fast, and are limiting the number of boards on which directors may serve to help them achieve their diversity goals. Here's an excerpt from this CorporateSecretary.com article:

But when a timeframe is set, it is ambitious: 35% of companies have set a one to three-year period in which to meet their diversity goals. The most widely adopted approach companies are taking to promote board refreshment is limiting the number of boards a director can sit on (17%). This brings a new focus on the concept of overboarding - a growing issue for investors in recent years. Although the Diligent and NYSE study doesn't provide numbers when talking about limiting the number of boards a director can sit on, both ISS and Glass Lewis have tightened their stance on this in recent years.

The report says that 14% of companies have also introduced age limits for their directors in order to promote board refreshment & greater diversity. Another 11% percent have added more seats to their boards in order to make room for more diverse directors to join.

Virtual Annual Meetings: Gearing Up for 2021

At this point, most of us have reconciled ourselves to the fact that things aren't getting back to normal anytime soon. Since that's the case, companies will need to prepare for possibility that their 2021 annual meeting will once again need to be a virtual or hybrid meeting. This recent Bryan Cave blog offers up some tips on preparing for next year's virtual meetings. This excerpt lays out some things to think about when it comes to such a meeting's format and rules of conduct:

Companies need to decide whether a meeting will be virtual-only, physical-only or a hybrid. For any virtual component, they need to decide whether the access will be audio-only or audio plus video. While a majority of virtual meetings during the 2020 proxy season appeared to be in audio-only format, we expect that in 2021 companies will increasingly use video for their meetings, as video conferencing has evolved during the pandemic.

Clear rules of conduct are imperative. As more companies transitioned to virtual meetings in 2020, one area of focus was on how and when shareholders could submit questions. Investors and others questioned whether companies might be "cherry-picking" the questions they answered and requested that all shareholders have access to the questions submitted. Companies in 2021 will need to put in place and clearly address the Q&A process. For example, issuers need to decide whether questions may be asked live during the meeting via a chat function and/or over the phone, and/or prior to the meeting by submitting online or through email.

If you're not already thinking about the possibility of a virtual component to your meeting next year, you probably ought to be. The blog says that many companies are already exploring retention of virtual meeting providers and video and real-time Q&A alternatives, and have also begun drafting disclosure about meeting logistics to include in their proxy materials.

November-December Issue: Deal Lawyers Print Newsletter

The November-December Issue of the Deal Lawyers print newsletter was just posted - & also sent to the printer (try a no-risk trial). It includes articles on:

–Duty of Loyalty Issues for Designated Directors and the Boards of Portfolio Companies

–Conflicted CEO Tilts Company Sale in PE Firm's Favor

–SBA Announces New Guidance on Consent Requirements for PPP Borrower Changes of Ownership

–Court Rejects Challenge to M&A Transaction Despite Activist Pressure

–Do Reps and Warranties Policies Actually Pay Claims?

Remember that - as a "thank you" to those that subscribe to both DealLawyers.com & our Deal Lawyers print newsletter - we are making all issues of the Deal Lawyers print newsletter available online. There is a big blue tab called "Back Issues" near the top of DealLawyers.com - 4th from the end of the row of tabs. This tab leads to all of our issues, including the most recent one.

And a bonus is that even if only one person in your firm is a subscriber to the Deal Lawyers print newsletter, anyone who has access to DealLawyers.com will be able to gain access to the Deal Lawyers print newsletter. For example, if your firm has a firmwide license to DealLawyers.com - and only one person subscribes to the print newsletter - everybody in your firm will be able to access the online issues of the print newsletter. That is real value. Here are FAQs about the Deal Lawyers print newsletter including how to access the issues online.

Conference Calendar

What's New on Our Websites

Among other new additions, during the last month we have posted:

  • An "Inside Track with Liz" podcast featuring Jean Lee, President and CEO of the Minority Corporate Counsel Association - a national organization focused on hiring, promoting and retaining women and diverse attorneys by providing cutting-edge research, best practices and training. In the podcast, Jean discusses the work that MCCA has been doing and why it's important to have diverse corporate lawyers.
  • "The Dave & Marty Radio Show - The Fond Farewell Episodes," in which Dave Lynn welcomes a series of eminent guests to remember his great friend and "Radio Show" co-host Marty Dunn, who died on June 15, 2020:
  • A series of podcasts featuring Dave Lynn and Marty Dunn. The series covered the following insightful and entertaining topics:
    • "Integration, COVID-19 Risk Factors and Quarantine Attic Finds" – Dave and Marty discuss the SEC's integration proposals in the harmonization of securities offering exemptions release, observations regarding COVID-19 risk factor disclosures and quarantine attic finds.
    • "Filing and Disclosure Obligations during the COVID-19 Pandemic" – Dave and Marty discuss when and what to disclose about the impact of COVID-19, Form 8-K disclosure triggers arising from COVID-19, the SEC's COVID-19 exemptive order and the latest Staff interpretations, and importantly, a quarantine movie list.
    • "Coronavirus, Rule 144(i) and Which is Better?" – Dave and Marty discuss the latest developments in securities laws, corporate governance and pop culture. Topics include disclosure considerations for public companies arising from the coronavirus, the curious case of Securities Act Rule 144(i) and which is better?
    • "Dave & Marty – Revisiting Risk Factors & LPs" – they discuss recommendations for tuning up your risk factors, early trends in the shareholder proposal season and evolving musical tastes in a world of technological innovation.
    • "Dave & Marty – Back in Black" – they discuss the top 10 expectations for 2019 – 2020 shareholder proposal season and the latest issues with non-GAAP financial measures and key performance indicators.
  • A podcast series - "Women Governance Gurus" - that Liz has been hosting with Courtney Kamlet of Vontier. So far, these illustrious guests have joined Liz & Courtney to talk about their careers in the corporate governance field - and what they see on the horizon. Recent episodes include:
    • Tanuja Dehne - President & CEO, Geraldine R. Dodge Foundation and public company board member
    • Darla Stuckey - President & CEO, Society of Corporate Governance
    • Jurgita Ashley - Partner, Thompson Hine
    • Susan Permut - Adjunct Professor, Boston University School of Law, and Founder & Principal Consultant at Royce Road Advisors
    • Courtney Kamlet - VP, Associate General Counsel & Corporate Secretary, Vontier
    • Liz Dunshee - Managing Editor, TheCorporateCounsel.net
    • Alane Barnes - SVP & Chief Legal Officer at BioCryst Pharmaceuticals

The following memos & insights:

People: Who's Doing What & Where

SEC Chairman Jay Clayton Departing Agency at Year-End: The SEC announced that Chairman Jay Clayton intends to conclude his tenure at the end of the year, slightly ahead of his June 2021 term expiration date. As noted in the SEC's press release, Chairman Clayton led the agency through a period of historically productive rulemaking - during his tenure, the agency advanced more than 65 final rules, many of which modernized rules that hadn't been updated in decades. In addition to all the rulemaking, the SEC's press release highlights impacts from enforcement actions, which since 2017 have resulted in the SEC obtaining more than $14 billion in financial remedies.

Mike Willis Named Associate Director in Division of Economic and Risk Analysis: In mid-November, the SEC announced that Mike Willis was named as an Associate Director in the Division of Economic and Risk Analysis (DERA). In this role, Willis will lead DERA's newly created Office of Data Science and Innovation where he will oversee the development of data analytics tools aimed at enhancing program data quality and information. Prior to this role, Willis served as Assistant Director of the Office of Structured Disclosure within DERA. Prior to joining the SEC, Willis retired as a partner with PwC where he was responsible for supervising data analytics engagements.

Marie-Louise Huth Named Associate General Counsel for Legal Policy: In mid-November, the SEC also announced that Marie-Louise Huth was named as Associate General Counsel for Legal Policy in the Office of the General Counsel. In this role, Huth will provide legal advice to the Commission and SEC divisions on a wide range of matters, with an emphasis on regulatory recommendations to the Commission from the Divisions of Investment Management and Trading and Markets. Huth has been with the SEC in various roles since 2012, most recently serving as Chief Counsel for the Division of Economic and Risk Analysis.

Anne Simpson Named CalPERS Managing Investor Director of Board Governance and Sustainability: In mid-November, CalPERS announced that Anne Simpson was selected as managing investment director (MID) of Board Governance and Sustainability. In this role, Simpson will advise on board governance and strategy, along with strategies for specific programs within investments, such as the Sustainable Investment Strategic Plan, which includes Climate Action 100+, an alliance co-founded by CalPERS, financial markets advocacy, and human capital management focusing on diversity and inclusion. Simpson joined CalPERS more than 11 years ago and had been serving as CalPERS interim MID of Board Governance and Sustainability.

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