October 7, 2021

D&O Questionnaires: Exchange-Related Updates

This Stinson blog highlights things to think about for the upcoming proxy season. Here’s an excerpt discussing a few things to watch for in D&O questionnaires:

NYSE listed issuers who have detailed questions in their D&O questionnaires which reflect the current version of Item 404 of Regulation S-K should not need to update their D&O questionnaires. It may be worthwhile for NYSE listed issuers to double check their audit committee charters to make sure the charters reflect other changes made by the rule amendments.

As noted in previous years, the Tax Cuts and Jobs Act eliminated the exception to IRC §162(m) for performance-based compensation, subject to a transition or “grandfather” rule. While likely few compensation arrangements are still grandfathered, this should be confirmed before eliminating questions in directors’ and officers’ questionnaires related to §162(m) for compensation committee members or references to §162(m) in compensation committee charters.

Nasdaq issuers may wish to begin modifying their D&O questionnaires to prepare for disclosures for the Board Diversity Matrix which is discussed below.

Other reminders from the blog include double-checking whether you’re due for a say-on-pay frequency vote, complying with the new MD&A rules (listen to our recent webcast), complying with modernized property disclosure if you’re a mining registrant, using Inline XBRL, and potentially using the SEC’s amended shareholder proposal thresholds to evaluate whether a proposal must be included in the company’s proxy statement (part of the transition rule is still in effect).

Liz Dunshee