March 18, 2015

Proxy Access: All Sorts of Developments

As will be covered during our upcoming Tuesday webcast – “Proxy Access: The Halftime Show” (TIAA-CREF’s Bess Joffe just joined the panel!) – there are all sorts of developments, such as:

– TIAA-CREF has quietly sent letters to 100 companies urging them to voluntarily adopt access within the next 6-8 months (see this WSJ article, including my quote at the end)
– At least 4 proxy access shareholder proposals have been withdrawn by the NYC Comptroller as part of a settlement (per this Ning Chiu blog)
– Per Ning’s blog: “Many companies are opposing the proposals in their proxy statements, while at least one company has included the proposal, but with the board in favor of it. Most opposing the proposal are arguing against the need for proxy access at all, or have indicated a willingness to adopt access, but at a higher ownership threshold.”
– And Ning says: “Other companies are offering shareholders a choice between a management proposal (either binding or precatory) along with a shareholder proposal, with different ownership thresholds for the two types of proposals.”

In our “Q&A Forum,” someone asked for a list of the companies listed in Friday’s blog that have adopted the “Prudential” style of renomination ineligibility provision. The list was posted in response (#8370).

Conflict Minerals: Status of Corp Fin Views

Elm Sustainability Partners has posted this interesting note, repeated below:

We spent a very busy and productive two days last week in Washington. One meeting was with the SEC Staff responsible for the conflict minerals disclosure requirements. They were, as usual, generally tight-lipped in responding to our questions, but we did get three interesting bits of information.

– Readers may recall recent comments from CorpFin Director Keith Higgins about his view that many RCOI descriptions were inadequate. The comments did not make clear if he was referring to those who filed a Form SD only, or the RCOI descriptions included in Conflict Minerals Reports (CMRs). The Staff clarified that the comments were aimed at Form SD filers only, which makes sense. Moreover, we suggest that those filing only the Form SD for CY2014 be prepared for additional scrutiny that is likely to come from other stakeholders as well.

– Staff gave no insight into when additional FAQs/Interpretive Guidance will be published. But they did state that the next round consists of approximately 10 questions. This puts to rest the rumor that the Staff was working on a very large number of questions, which is one reason for the lengthy delay.

– A number of issuers have expressed concern about the validity of the Keller and Heckman letter on the Staff’s position that nonmetallic forms of 3TG are not a covered derivative. The Staff stated that the letter does fully represent their formal position on the matter and that issuers should not be wary of relying on it. Further, we note that the letter covers 3TG, not just tin or 3T, so gold salts/plating chemicals are not considered covered derivatives.

Elm also posted this note about how Apple has filed its Form SD for this year already, a few months early…

Transcript: “Private M&A Wake-Up Calls”

We have posted the transcript for our recent webcast: “Private M&A Wake-Up Calls.”

– Broc Romanek