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I shared some D&O questionnaire considerations on The Proxy Season Blog in early December that I thought would be worth distributing more widely here since, after the holidays, proxy season will be “full steam ahead!” While SEC and US stock exchange rules don’t require significant adjustments to questionnaires this year, you may want to consider some potential updates — per this Bryan Cave blog and this Thompson Hine alert — given recent developments. Here are a few:

– In the section on director independence, expand the list of examples of material relationships to include close friendships or other close social ties with management, in light of the SEC settlement with a public company director, as discussed in our October 7, 2024 post.

– In the section on director expertise, collect information sufficient to assess the board’s skills cybersecurity expertise, even though the new rules do not require discussion of board-level expertise in this area.

– In the section on beneficial ownership, highlight or clarify the need to disclose margin loans or other form of pledges of issuer securities, in light of Carl Icahn’s settlement with the SEC, as discussed in our August 20, 2024 post. In addition, companies may wish to request confirmation that insiders have either not entered into, or terminated, any 10b5-1 or non-10b5-1 trading arrangements (as defined in Reg. S-K Item 408(c)) during the preceding fiscal year.

– In the section on Forms 4 and 5, remind insiders of the importance of reporting late or missed transactions, as well as the need to timely notify the company of changes in beneficial ownership, in light of the recent SEC enforcement sweep, as discussed in our October 3, 2024 post.

– In the undertakings: include the consent of the director for the disclosure regarding diversity for purposes of the Nasdaq diversity matrix or other disclosure a company may wish to make on this topic (and consider identifying any state law disclosure requirements, if applicable); and include the consent of the director or nominee to be included in the company’s proxy materials, as well as a nominee in a dissident’s proxy materials, should that become applicable, in light of universal proxy card rules.

– The SEC recently adopted amendments (collectively referred to as “EDGAR Next”) intended to enhance EDGAR’s security. Among other new requirements, applicants for EDGAR access will be required to disclose if the applicant, the account administrator(s), or the individual signing the Form ID has been convicted of or civilly or administratively enjoined, barred, suspended, or banned as a result of a federal or state securities violation. Companies may want to consider adding a question to their D&O questionnaires to address this new EDGAR Next requirement. Additionally, as the EDGAR Next question is not limited to the past 10 years, companies should carefully consider where to place the question in their D&O questionnaires.

For Nasdaq-listed companies, don’t forget to assess your approach to board diversity disclosures and update accordingly! And, as always, for 100+ pages of practical guidance, check out our “D&O Questionnaires Handbook.”

– Meredith Ervine