TheCorporateCounsel.net

Perhaps to the chagrin of those finalizing – or have finalized – their proxy disclosures, Corp Fin posted a bunch of new “phone interps” yesterday (they’re actually not called phone interps anymore; they are more formally known now as “Compliance and Disclosure Interpretations”). There four new sets of interps, including:

– Item 201 of Regulation S-K – Common Equity Information and Shareholder Matters

– Item 403 of Regulation S-K – Security Ownership

– Item 404 of Regulation S-K – Transactions with Related Persons

– Item 407 of Regulation S-K – Corporate Governance

SEC Plans to Adopt Foreign Private Issuer Termination Rules

The SEC announced an open Commission meeting for next Wednesday to consider adopting rules that would allow foreign private issuers to deregister more easily – and Chairman Cox gave a speech during which he said he opposes weakening Sarbanes-Oxley…

Pop Quiz! Proxy Season Reminders

A member sent over the following conference notes, which serve as a nice pop quiz to determine how well you are “informed” this proxy season. At the Corporate Counsel Institute held at Georgetown University Law Center last week, Corp Fin Deputy Director Marty Dunn provided 10 points to remember for this proxy season:

1. Companies should confirm that the certifications required in Form 10-K by Regulation S-K Item 601 are accurate. A number of companies have been found by the Staff to have not adhered to the precise language of the Item.

2. Companies should carefully follow Item 601(b)(10) of Regulation S-K regarding material contracts required as exhibits, particularly with respect to per se material agreements such as those involving named executive officers.

3. Companies are not required to deliver board committee charters to shareholders if such charters are made available via a web site link – but companies must reference the website link in its disclosure.

4. Pursuant to Item 407 of Regulation S-K, where a company adopts its own definition for “independence” of directors, it must disclose the web site link where the definition may be found or append the definition to the proxy statement every three years.

5. Regarding disclosure of related-party transactions under Item 404(b) of Regulation S-K, a company must disclose its related-party transactions policy even if it doesn’t have any related-party transactions required to be disclosed under Item 404(a).

6. The beneficial ownership table required under Item 403 of Regulation S-K was amended pursuant to the new executive compensation rules to require disclosure of shares beneficially owned by directors and officers that are pledged as security.

7. Companies should be aware of the expansion of the plain English requirement from prospectuses to include executive compensation-type disclosure required under Items 402, 403, 404 and 407 of Regulation S-K.

8. Remember the requirement imposed in the securities offering reform rules that companies must make certain disclosures in their Form 10-K regarding unresolved comments from the SEC Staff.

9. Under the new executive compensation rules, companies are not required to disclose precise numbers if the amounts of salary and bonuses through the last calculable date cannot yet be determined. However, where companies do not do so and the compensation later becomes calculable, they are required to file a Form 8-K report disclosing these amounts pursuant to 5.02(f) of Form 8-K.

10. The peer index performance graph is no longer a proxy statement requirement but has not disappeared entirely. It is still required to be included in the “glossy” annual report required to be filed under Rule 14a-3.

Both Sides Declare Victory at H-P

Hewlett-Packard investors voted down a proposal that would have allowed shareholders who have owned at least 3% of HP’s outstanding stock for at least two years proxy access to nominate two board candidates. About 1.61 billion shares, or 52% of the total shares voted, were against the proposal. More than 800 million shares, or 39% of the total shares voted, were in favor. The percentages were enough for both sides to declare victory. Learn more at CorpGov.net.