E-Minders May 2019
In This Issue:
E-Minders is our monthly e-mail newsletter containing the latest developments and practical guidance for corporate & securities law practitioners.
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Recently, the SEC adopted rules to implement the "Fast Act" — and when the rules go effective in May, they'll make the following changes to the cover pages for Form 10-K, Form 10-Q and Form 8-K:
— Forms 8-K and 10-Q will require disclosure of the national exchange or principal US market for their securities, the trading symbol, and the title of each class of securities
— Form 10-K will have a new field for disclosure of the trading symbol for any securities listed on an exchange
— Form 10-K will no longer have a checkbox to show delinquent Section 16 filers
To reflect these changes, we've updated the Word version of the Form 10-K cover page in our "Form 10-K" Practice Area, as well as the Word version of the Form 10-Q cover page in our "Form 10-Q Practice" Area, and the Word version of the Form 8-K cover page in our "Form 8-K" Practice Area. Note that the adopting release contains the new cover page captions starting on page 216 - but doesn't indicate exactly where the new text will be added to Form 8-K and Form 10-Q. So we've made an educated guess of where this new language will appear. The rules are effective May 2nd - but it typically takes the Staff a few weeks or months to incorporate these types of updates to the PDF cover pages published on the SEC's website.
For companies that are required to submit Interactive Data Files in Inline XBRL format under Reg S-T, the Fast Act rules also require every data point on the cover pages to be presented with Inline XBRL tags. Some of the "Cover Page Interactive Data File" can be embedded - and the remainder should be attached as an exhibit under Reg S-K's new Item 601(b)(104). The phase-in for this requirement matches the phase-in for mandatory Inline XBRL compliance. So for large accelerated filers, that means this will first be required in reports for periods ending on or after June 15th. Accelerated filers have until next year - and everyone else has until 2021. We've updated our "Form 10-K Cover Page Requirements Checklist" for all of the Fast Act rules - and will be updating all of our Handbooks as well.
Recently, Corp Fin issued guidance — in the form of this "announcement" — about the new rules & procedures for exhibits that contain immaterial, competitively harmful information. This guidance is in the wake of the new Fast Act rules (see this horde of memos) that permit companies to file redacted material contracts without applying for confidential treatment of the redacted information provided the redacted information (i) is not material and (ii) would be competitively harmful if publicly disclosed. Those rules became effective in April.
Here are few things to know:
1. Mark Exhibit Index, Provide Statement on Exhibit Cover & Use Brackets for Redaction — You must mark the exhibit index to indicate where redaction occurs, include a prominent statement on the exhibit cover and use brackets within the exhibit to show exactly where redaction occurred.
2. Corp Fin Will Check for Compliance With New Rules — Corp Fin intends to check for compliance with the new rules, using a separate chain of comments from the regular comment process. This includes Corp Fin's review of the redacted information, which may lead to comments asking for substantiation of immateriality/competitive harm claims. Conclusion of the review process will result in Corp Fin sending a letter to that affect.
3. Edgar Will Only Reveal Bare-Bones of CT Review — Edgar will publicly reveal that Corp Fin initially made a confidential treatment inquiry — and then that its review has been closed. Corp Fin will not upload comments issued during its CT review onto Edgar — so these comments won't be publicly available.
4. Your Registration Statement Won't Be Declared Effective Until Exhibit Issues Resolved — As has been the case in the past, acceleration requests will be acted upon only after any comments relating to the redacted exhibits are resolved.
5. If You Have a Pending CTR, You Can Switch to New Rules — If you currently have a confidential treatment request pending, you may — but are not required — withdraw your pending CTR and rely on the new rules. If you don't withdraw, Corp Fin will continue to process your CTR under the old rules.
6. You Can Still File CTRs Under the Old Rules — The new rules have not changed your ability to request confidential treatment under Rule 406 or Rule 24b-2. If you file a CTR under the old rules, Corp Fin will process them that way.
7. How to Get More Corp Fin Guidance — Here's where you can send your questions to Corp Fin about this new rule: RedactedExhibits@sec.gov.
In April, Corp Fin announced a streamlined procedure for extending previously granted confidential treatment orders covering information in material contracts. The announcement notes that, when it comes to extensions, simply filing the redacted exhibit as contemplated by the new Fast Act rules will not provide confidential treatment for information in the previously filed CTR. This excerpt from the announcement summarizes the new procedure:
We have developed a short form application to facilitate and streamline the process of filing an application to extend the time for which confidential treatment has been granted. It is a one-page document by which the applicant can affirm that the most recently considered application continues to be true, complete and accurate regarding the information for which the applicant continues to seek confidential treatment. With that affirmation, the applicant indicates its request that the Division extend the time period for confidential treatment for an additional three, five or 10 years and provides a brief explanation to support the request.
Companies don't have to refile the unredacted contract with the extension request, and if the supporting analysis remains the same as presented in the most recent CTR, they won't have to refile that either. If the applicant reduces the redactions, the revised redacted version of the contract must be filed with the short form extension application.
The short form application may only be used if the contract has already been the subject of an order granting a CTR, and it can't be used to add new exhibits to the application or make additional redactions. For a deeper dive into the new process, check out this Cydney Posner blog. We've also updated our "Checklist n Confidential Treatment Requests" to reflect this new procedure.
Recently, Corp Fin Director Bill Hinman & Senior Advisor for Digital Assets Valerie Szczepanik issued a statement announcing new Staff guidance on when tokens & other digital assets will be regarded as "securities" subject to SEC regulation. Here's an excerpt:
As part of a continuing effort to assist those seeking to comply with the U.S. federal securities laws, FinHub is publishing a framework for analyzing whether a digital asset is offered and sold as an investment contract, and, therefore, is a security. The framework is not intended to be an exhaustive overview of the law, but rather, an analytical tool to help market participants assess whether the federal securities laws apply to the offer, sale, or resale of a particular digital asset.
Also, the Division of Corporation Finance is issuing a response to a no-action request, indicating that the Division will not recommend enforcement action to the Commission if the digital asset described in the request is offered or sold without registration under the U.S. federal securities laws.
The 13-page "Framework for 'Investment Contract' Analysis of Digital Assets" represents the most detailed guidance that the Staff has provided on the application of the Howey test to digital assets. It walks through each element of the Howey test and identifies key characteristics of a digital asset that influence the Staff's views about whether that asset involves an "investment contract."
The guidance in the Framework is likely to be helpful to issuers planning token offerings. But it's unlikely to please the crypto-evangelists who seek a light touch - or even a "hands-off" approach - from the SEC. That's because the Framework makes it very clear that the SEC will continue to apply the Howey test to digital assets with considerable rigor. As they say, if you don't like it, write to Congress.
Bill Hinman's statement on digital assets referenced a new no-action letter - TurnKey Jet (4/3/19) - in which Corp Fin said it wouldn't recommend an enforcement action against an issuer if it proceeded with a token offering without registration. This is pretty earth-shattering news, right? Yeah, not exactly. Don't get us wrong - it's certainly a landmark, but it's also a fairly prosaic application of the Howey test to a deal involving the sale of fully-functional tokens structured in such a way as to squeeze out any profit potential associated with their ownership.
Corp Fin's response letter walks through the key factors in its decision, some of which are highlighted in this excerpt from the request letter explaining why there's no expectation of profit involved with the tokens:
It will not be technically possible to trade and transfer Tokens from the Platform in a non-Platform secondary market at a premium. Further, it will be economically impractical to trade Tokens within the Platform in a secondary market since TKJ will offer continuous, ongoing Token sales at one USD per Token which should cause the market price of Tokens not to exceed one USD per Token. These restrictions on transfer are indicative of the consumptive nature of the Tokens.
The TKJ Program memberships are non-equity memberships and will be non-transferable. The Consumers will represent that they are obtaining the TKJ memberships and Tokens for their own use and not as an investment or to profit. The TKJ memberships and Tokens will not be marketed to the public as investments. The funds that the Consumers prepay for the on-demand air charter services will be nonrefundable and will be immediately redeemable for air charter services, so no Consumer will have a reasonable expectation of profit.
Gosh, that kind of takes all the fun out of it, doesn't it?
We blogged last year about a MarketWatch article highlighting coin offerings' increased reliance on Regulation D following the Staff's 2017 guidance on coin offerings. This recent MarketWatch article says that while the volume of coin offerings is down, Reg D still seems to be the preferred route. Here's an excerpt addressing the number of Form D filings for token deals:
MarketWatch counted 33 ICO-related fundraisings accepted by the SEC in the first quarter of 2019, with a total stated value of $1.9 billion. That is down from a peak of 99 in the second quarter of 2018. MarketWatch estimated there were 287 ICO-related fundraisings accepted by the SEC with a total stated value of $8.7 billion in 2018. That was a significant increase from 44 fundraisings filed with a total stated value of $2.1 billion in 2017.
Recently, the market inched closer to peak "Unicorn" frenzy when — after what felt like a decade of speculation — Uber filed the Form S-1 for its IPO. Reuters reported that it's seeking to raise $10 billion, which would be the largest offering since Alibaba went public in 2014. Let's look back on IPO trends leading up to this enormous deal.
As Proskaur's 6th Annual IPO Study shows, Uber's IPO would build on trends from last year. Nearly half of the 94 IPOs in the study were conducted by companies with a market cap of at least $1 billion — with many of those deals coming from tech & health care behemoths. The 168-page study looks at a subset of IPOs that had an initial base price of $50 million or more. It offers all kinds of data points — and analyzes trends over the last six years. Here's a few takeaways (also see this "D&O Diary" blog and Proskauer's press release):
— 46% of analyzed deals were in the $100-250 million range, 48% of companies had a $1 billion+ market cap at pricing, 86% were EGCs
— 82% of IPOs priced in or above range, and the over-allotment was at least partially exercised in 77% of deals
— 99% of companies used the confidential submission process
— Average number of days from initial filing to pricing was 139, up slightly from the year before
— Average number of first-round SEC comments was down to 20 — and the study looks at the prevalence of "hot-button" comment topics, comments by sector, etc.
— 26% of companies included "flash results" for a recently-completed period — that number jumped to 50% for companies that priced within 45 days of quarter-end
— 47% of companies issued stock in a private placement within a year of going public
— 46% of companies disclosed a material weakness and 22% had a going concern qualification
— 15% of companies had multiple classes of stock — mostly in the tech sector — and 92% had a classified board
— 88% of US IPO issuers were incorporated in Delaware, 16% of IPOs came from Chinese companies
With companies staying private much longer these days than they did even five years ago, there's a lot of pent up demand for "Unicorns" — venture capital-backed companies valued at $1 billion or more before going public (in Uber's case, 90-100x more). The reason investors are itching to buy stock is because the companies are considered "high growth." That's bank-speak for "losing money" — one study even showed that the less profitable unicorns are, the more people like them! And that's just one way these offerings can differ from those conducted by "regular" companies.
This "Unicorn IPO Report" from Intelligize takes a look at last year's trends in this space, concluding that these "wild & independent creatures" actually demonstrate a "herd mentality" on some data points — not just on pricing, which is something that's been written about a lot in the last few weeks & months — but also on things like (lack of) board diversity and the speed of their IPO process. Here are a few takeaways from this Mayer Brown blog (also see Intelligize's press release):
— There were 20 unicorn IPOs last year, compared to 13 the year before
— A 7% underwriting fee remained the norm — despite concerns of an SEC Commissioner and legislators that smaller and medium-sized companies are paying higher fees
— About 30% of unicorns had multi-class share structures
— Other than Dropbox, all 2018 unicorns went public as EGCs — and took advantage of those scaled disclosure accommodations
— Excluding one outlier, the average time from draft registration statement filing to IPO was 132 days (shortest was 61 days) — about 140 days was spent between filing the draft and the Form S-1, with 28 days from S-1 to effectiveness (for the broader market, the average time from filing the S-1 to trading was 49 days)
Is your audit committee asking the right questions when it reengages your independent auditor each year? As detailed in this Cooley blog, the CAQ recently announced an updated version of its "External Auditor Assessment Tool" — with sample questions that are organized by category:
— Quality of services and sufficiency of resources provided by the engagement team
The tool also includes a sample form and rating scale for obtaining input from company personnel about the external auditor, as well as resources for additional reading.
Here's a new engagement tidbit courtesy of Aon's Karla Bos:
Unsurprisingly, BlackRock is now using a technology solution, provided by CorpAxe, to coordinate governance engagement requests. There was an announcement last year that BlackRock had selected CorpAxe as their "corporate access and research management solution," but since it didn't mention governance activities per se, it didn't move onto my radar until BlackRock started redirecting companies that had reached out via email to request engagement. There is also a notice on their stewardship website that you should submit engagement requests through CorpAxe.
We blogged recently that Glass Lewis is piloting a new "Report Feedback Statement" that will allow companies & shareholder proponents to express how their opinion differs from what's in Glass Lewis' research. Glass Lewis has now published FAQs — and this Morrow Sodali memo highlights how much you'll have to shell out for the service:
Companies and/or shareholder proponents do not have to be Glass Lewis clients in order to use the RFS service. However, both issuers and shareholder proponents must purchase the relevant annual meeting report (at a cost ranging from $750 to $5,000, depending on size of the issuer) and pay a $2,000 fee for the distribution of the RFS comments.
And if you're going to participate, don't forget to also check out the Glass Lewis "Etiquette Guide," which clarifies that only publicly available & legally vetted info should be shared in the RFS. In addition, it instructs everyone to use the "appropriate level of decorum & civility" — ah, the times we live in...
Beginning next year, CalPERS will likely vote "against" compensation committee members in the same year that the compensation plan fails its pay-for-performance quantitative model. That's according to recommendations in a recent staff report to the pension fund's Investment Committee. Here's more detail on the executive compensation initiative that's underway:
— Move from a 3-year to a 5-year quantitative model (developed in collaboration with Equilar) to assess pay-for-performance, and vote "against" bottom quartile of universe
— Vote "against" Compensation Committee members in the same year the compensation plan fails the pay-for-performance quantitative model (effective 2020 proxy season)
— Additional qualitative components will continue to be used to assess compensation plans — e.g. insufficient disclosure of goals, lack of clawback policy
— For this year, CalPERS expects its say-on-pay voting outcomes to be similar to 2018, where CalPERS voted against 43% of pay programs
The report also summarizes the status of CalPERS' voting & engagement efforts with Climate Action 100+, and its push for board quality, board diversity and majority voting in director elections. Here's the staff's recommended enhancements for overboarding and refreshment:
— Vote "against" non-executive directors who sit on more than 4 boards. The current practice is to vote "against" non-executive directors who sit on more than 5 boards
— Vote "against" Nominating/Governance Committee members if the Board has more than 1/3 of directors with greater than 12-year tenure AND less than 1/3 of directors were appointed in the last 6 years
Here's something we blogged recently on CompensationStandards.com: When the SEC adopted the pay ratio rule four years ago, it repeatedly stressed that company-to-company comparisons would be meaningless. The adopting release said:
As we noted in the Proposing Release, we do not believe that precise conformity or comparability of the pay ratio across companies is necessarily achievable given the variety of factors that could cause the ratio to differ. Factors that could cause pay ratio to differ from one company to the next include differences in business type, variations in the way the workforces are organized to accomplish similar tasks, differences in the geographical distribution of employees, reliance on outsourced workers, and the variations in methodology for calculating the median worker. Consequently, we believe the primary benefit of the pay ratio disclosure is to provide shareholders with a company-specific metric that they can use to evaluate the PEO's compensation within the context of their company.
That message stuck: most people seemed to understand that the ratio would be company-specific, and there was a pretty "ho-hum" reaction to the first year of pay ratio disclosure. But, you might say, "What about tracking changes to a particular company's ratio over time, to monitor how CEO pay increases compare to everyone else's? Won't that be useful?" More than a few people predict that pay ratio will garner more attention going forward, because shareholders & others will compare a company's current year number to prior years.
The problem with that, as this WSJ article points out, is that the same factors that make comparisons among different companies meaningless are also things that can change from one year to the next at a single company. And as we're sure you can guess, those changes cause big swings in the ratio. So for many companies, pay ratio doesn't even provide meaningful year-over-year info (at least, about the relationship between CEO & employee pay). Here's a couple of examples from the article:
Median pay at Jefferies Financial jumped to $150,000 last year from $44,584 in 2017 after the holding company sold most of its stake in its National Beef meat-processing unit in June 2018, cutting its workforce to about 4,600 from 12,600. The 2017 median employee at the company, formerly called Leucadia National, was an hourly line worker at National Beef, while last year's was a senior research associate in the company's Jefferies LLC financial-services operation.
Coca-Cola slashed its median pay figure by two-thirds after it finished shifting North American bottling operations to franchisees and acquired a controlling interest in African operations. The 2017 median worker was an hourly full-timer in the U.S. making $47,312, while last year's made $16,440 as an hourly full-timer in South Africa. In its proxy statement, Coca-Cola said it intends to shed the African operation again after making improvements and offered an alternative median employee excluding that unit: an hourly full-timer in the U.S. making $35,878, about 25% less than his or her 2017 counterpart.
We will say, companies are making the most of what they have to work with (thanks in large part to the flexibility the SEC incorporated into the rule). And for better or worse, the "median employee" data point might illustrate to people how company policies & strategies play out in the workforce. But a single data point can't tell the whole story — and the pay ratio itself remains pretty useless.
This recent NYT article says that the cyberinsurance policy you pay big bucks for may have a big hole in it — thanks to the standard "war exclusion" contained in most policies. Here's an excerpt:
Mondelez, owner of dozens of well-known food brands like Cadbury chocolate and Philadelphia cream cheese, was one of the hundreds of companies struck by the so-called NotPetya cyberstrike in 2017. Laptops froze suddenly as Mondelez employees worked at their desks. Email was unavailable, as was access to files on the corporate network. Logistics software that orchestrates deliveries and tracks invoices crashed.
Even with teams working around the clock, it was weeks before Mondelez recovered. Once the lost orders were tallied and the computer equipment was replaced, its financial hit was more than $100 million, according to court documents. After the ordeal, executives at the company took some solace in knowing that insurance would help cover the costs. Or so they thought.
Mondelez's insurer, Zurich Insurance, said it would not be sending a reimbursement check. It cited a common, but rarely used, clause in insurance contracts: the "war exclusion," which protects insurers from being saddled with costs related to damage from war.
The U.S. government said that Russia was responsible for the cyberattack, which made Mondelez & other companies "collateral damage in a cyberwar" & gave insurers an opening to deny coverage under the war exclusion. Mondelez & Merck, which was also denied coverage, sued their insurers & the issue is working its way through the courts. The stakes are high — given the prevalence of state-sponsorship when it comes to big cyberattacks, the article suggests that the outcome could go a long way to determining whether cyberinsurance is worthless.
The White House on Thursday moved to curb the power of federal regulators by directing them to submit nonbinding guidance documents to the budget office for review, a step that could slow down the enactment of any rule with a potentially large impact on the economy. A memo from acting Office of Management and Budget Director Russell Vought would vastly broaden Congress's ability to reject such guidance, subjecting the documents to the same scrutiny as regulations that carry the force of law.
The move is the latest salvo in a war waged by corporations and their Republican allies in government against what they view as backdoor rulemaking: agencies issuing regulatory documents that don't go through the formal notice-and-comment process but can still be used as a cudgel against certain behavior.
The memo will have a potentially sweeping impact on agencies throughout the government including independent regulators like the Federal Reserve and the SEC. It calls on the agencies to regularly notify the Office of Information and Regulatory Affairs of upcoming guidance, along with determinations of whether it qualifies as "major" - the threshold for notifying Congress under the Congressional Review Act. Any guidance document deemed major by OIRA would need to be sent to Congress, which would then have the ability to strike it down under the review act, a law that gives lawmakers a short window to roll back a rule.
Compliance professionals should be very wary of what the Trump White House is trying to do here. In theory, restrained rulemaking is a reasonable idea - but time and again, we've seen this president and his sycophants in the White House playing with forces they're too ignorant to use, bollixing up life for the rest of us.
For example, compliance officers of a certain age can remember the summer of 2008, and the feverish, improvisational rulemaking banking regulators tried back then to stave off the financial crisis. You'd really want OIRA review in the middle of something like that? You'd want Congress slowing down the process with 60-day approval windows?
In the real world, of course, if another crisis were to come along, you could bet your mortgage payment that the Trump Administration and Congress would grant some emergency stay of OIRA review, so regulators could move more quickly - and be left as the scapegoats, should the crisis explode anyway.
This isn't the first time the Trump Administration has moved to curtail what it views as "rulemaking by guidance" - in 2017, former AG Jeff Sessions banned the DOJ from issuing guidance purporting to "create rights or obligations binding on persons or entities outside the Executive Branch."
In addition to the OMB memo, President Trump issued an executive order that contains a section directing the Secretary of Labor to "complete a review of available data filed with the Department of Labor by retirement plans subject to the Employee Retirement Income Security Act of 1974 (ERISA) in order to identify whether there are discernible trends with respect to such plans' investments in the energy sector."
That sounds innocuous enough, but this Davis Polk blog suggests that something more significant may be afoot:
While the section does not directly address environmental, social and governance (ESG) disclosure, it restates the definition of materiality from the U.S. Supreme Court case, TSC Industries, Inc. v. Northway, Inc., and reiterates a company's fiduciary duties to its shareholders to strive to maximize shareholder return, consistent with the long-term growth of the company.
This order comes on the heels of last week's U.S. Senate Committee on Banking, Housing, and Urban Affairs hearing on ESG Principles in Investing and the Role of Asset Managers, Proxy Advisors and Other Intermediaries, as well as ongoing activity at the U.S. Securities and Exchange Commission level, with certain institutional investors agitating for additional ESG disclosure requirements.
The blog says that while the order is silent about how the study might be used, it may well serve as the starting point for a crackdown on plan fiduciaries' ESG activism. One "obvious use" of the study's results could be to enforce the DOL's April 2018 guidance prohibiting plan fiduciaries from focusing on ESG factors "solely to benefit the greater societal good."
We recently mailed the March-April issue of "The Corporate Counsel" print newsletter (try a no-risk trial). The topics include:
1. Board Minutes: Best Practices for Everyone's Least Favorite Task
— Why Do Minutes Matter?
2. Now, Therefore, It Is RESOLVED: Drafting Board Resolutions
Among other new additions, during the last month we have posted the following:
Members Appointed to Small Business Capital Formation Advisory Committee: The SEC announced that it had appointed 15 people to the Small Business Capital Formation Advisory Committee. The Committee replaces the Advisory Committee on Small and Emerging Companies, whose term expired in 2017. Committee members will also include the SEC's Advocate for Small Business Capital Formation, Martha Legg Miller, and three non-voting members appointed by each of the SEC's Investor Advocate, the North American Securities Administrators Association, and the Small Business Administration. The Committee will also have an observer appointed by the Financial Industry Regulatory Authority.
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