If you’re looking for a primer on how not to implement disclosure controls & procedures surrounding the disclosure of executive perks and stock pledges, be sure to check out this settled enforcement proceeding that the SEC announced yesterday. This excerpt from the SEC’s press release summarizes the proceeding:
The Securities and Exchange Commission today announced that Texas-based oilfield services company ProPetro Holding Corp. and its founder and former CEO Dale Redman have agreed to settle charges that they failed to properly disclose some of Redman’s executive perks and two stock pledges.
The SEC’s order finds that Redman caused ProPetro to incur $380,594 worth of personal and travel expenses unrelated to the performance of his duties as CEO. He also failed to disclose to company personnel that he had pledged all of his ProPetro stock in two private real estate transactions. During the same period, ProPetro failed to properly disclose $47,591 in additional, authorized perks it paid to Redman. As a result of these failures, the company issued public filings that included material misstatements regarding executive perks and stock ownership, and failed to accurately record Redman’s perks in its books and records.
While the defendants neither admitted nor denied the allegations made by the SEC, they consented to a C&D and the former CEO agreed to pay a $195,046 penalty. But in order to understand the alleged shortcomings in the company’s disclosure controls & procedures surrounding perks and pledges, you need to check out what the SEC claimed in its Order Instituting Proceedings. Highlights include:
– The CEO had a 50% ownership interest in a company that owned an airplane that he used for business travel. It sent invoices to the company for his flights, which the CEO initialed for approval and passed on to the accounts payable supervisor in the same manner as all other vendor invoices.
– Despite a policy prohibiting personal use of company credit cards, the CEO and his family made over $125,000 of personal charges that were not reimbursed and were not disclosed in the company’s proxy statement.
– The CEO pledged stock without obtaining prior board authorization, and subsequently obtained board approval of a negative pledge arrangement with another bank that prohibited him from disposing of the stock. He did not inform the board of the earlier pledge, nor did the company disclose either pledge in its proxy statements for several years.
How did all of this (and more) get missed? Part of the answer appears to be a lax approach to handling D&O questionnaires. Here are paragraphs 24 & 25 from the SEC’s Order:
24. On January 27, 2017, approximately one week after the close on the loan for his first ranch with its associated stock pledge, Redman completed his “D&O Questionnaire” for the disclosures in the company’s Form S-1 Registration Statement. Redman completed and signed the 2017 D&O Questionnaire, but left the line item for pledged shares blank. In 2018, Redman did not complete a D&O Questionnaire at all. On January 21, 2019, Redman completed the D&O Questionnaire but did not submit Schedule B, “Security Ownership and Recent Transactions in Company Securities,” which should have described his ProPetro equity ownership including his stock pledges.
25. Redman also did not identify in his D&O Questionnaires any of his personal trips on the Aviation Co. Learjet, the personal charges he made on the corporate credit card, or the additional perquisites authorized by the company. In his 2017 D&O Questionnaire, Redman included some perquisites for his company car, but failed to include any of the additional perquisites detailed above. In 2018, Redman failed to complete a D&O Questionnaire. On January 21, 2019, although Redman included some perquisites in his D&O Questionnaire, he did not disclose the personal air travel, any of the personal credit card charges reimbursed by the company that year or the various previously authorized perquisites detailed above.
The good news for the company was that the SEC lauded its cooperation. The bad news for the company’s executives was that in order to get that pat on the back, the board replaced them with an entirely new management team.
Last week, the SEC approved an amendment clarifying the definition of “votes cast” in Section 312.07 of the NYSE’s Listed Company Manual (Liz blogged about the proposal last month). The amendment eliminates a disparity that previously existed in the treatment of abstentions under the laws of many states and the NYSE’s treatment of them in determining whether a particular action has been authorized by a majority of the votes cast by shareholders. This excerpt from Arnold & Porter’s memo on the amendment explains the NYSE’s action and its consequences:
The NYSE has historically advised companies that abstentions should be treated as votes cast for purposes of Section 312.07, such that a proposal would be deemed approved only if the votes in favor exceed the aggregate of the votes cast against plus abstentions (i.e., giving abstentions the effect of a vote against). The corporate laws of many states, however, including Delaware, allow companies to specify in their governing documents that votes cast for purposes of a shareholder vote include yes and no votes (but not abstentions), such that a proposal succeeds if the votes in favor exceed the votes against. Consistent with those state laws, many public companies have bylaws indicating that abstentions are not treated as votes cast.
The NYSE has amended Section 312.07 to provide that a company must determine whether a proposal has been approved by a majority of the votes cast for purposes of Section 312.07 in accordance with its own governing documents and any applicable state law, which would permit a company to disregard abstentions if its governing documents and any applicable state law so provide. In its proposal, the NYSE noted that this is consistent with Nasdaq’s approach. The NYSE also noted that the amendment will help ensure that shareholders properly understand the implications of choosing to abstain on a proposal subject to approval under NYSE rules.
The rules requiring principles-based disclosure of material information about human capital management practices have been in place for a little over a year now, and this Gibson Dunn memo takes a look at what companies have been saying in response to the requirement. The firm surveyed 10-K filings from 451 members of the S&P 500, and found that disclosure practices varied pretty widely, “with no uniformity in their depth and breadth.” That makes disclosures difficult to compare, which is one reason why more prescriptive disclosure requirements are likely on the way.
Despite the challenges, the firm was able to group common areas of disclosure within a handful of categories: workforce composition and demographics; recruiting, training & succession; employee compensation; health & safety; culture & engagement; COVID-19; and HCM governance & organizational practices. This excerpt discusses diversity and inclusion disclosure practices, which was the most common type of workforce composition disclosure:
This was the most common type of disclosure, with 82% of companies including a qualitative discussion regarding the company’s commitment to diversity, equity, and inclusion. The depth of these disclosures varied, ranging from generic statements expressing the company’s support of diversity in the workforce to detailed examples of actions taken to support underrepresented groups and increase the diversity of the company’s workforce. Many companies also included a quantitative breakdown of the gender or racial representation of the company’s workforce: 41% included statistics on gender and 35% included statistics on race.
Most companies provided these statistics in relation to their workforce as a whole, while a subset (21%) included separate statistics for different classes of employees (e.g., managerial, vice president and above, etc.) and/or for their boards of directors. Some companies also included numerical goals for gender or racial representation—either in terms of overall representation, promotions, or hiring—even if they did not provide current workforce diversity statistics.
In addition to discussing the types of disclosures that companies made, the memo also looks at disclosure practices within specific industries, including finance, tech, manufacturing, travel, retail and others. It also looks at how companies formatted their disclosures, the comments the Staff provided, and makes some recommendations for actions companies should take going forward.
Many companies have been trying to come to grips with the business implications of complying with President Biden’s vaccine mandates. For public companies, those implications may well include disclosure of the potential material effects of those mandates in Exchange Act reports and Securities Act registration statements.
If you’re working on these issues, take a peek at this recent Bass Berry blog, which provides several examples of disclosures addressing issues surrounding vaccine mandates in the MD&A and Risk Factors sections and in forward-looking statements disclaimers. Here’s a sample pulled from one company’s MD&A discussion:
“Additionally, in September 2021 the President of the United States signed an executive order, and related guidance was published that, together, require certain COVID-19 precautions for federal contractors and their subcontractors, including mandatory COVID-19 vaccines for employees (subject to medical and religious exemptions). We are classified as a federal contractor due to a number of our agreements. In October 2021, we announced to our U.S. employees that the federal vaccine mandate would require all of our U.S. employees (subject to the exemptions described above) to be vaccinated by December 8, 2021. We continue to evaluate the potential impact of this executive order on our business. As a result of the federal vaccine mandate, we may experience constraints on our workforce and the workforce of our supply chain, which could require us to adapt our operations.”
By the way, if you’re looking for more info on all of the twists & turns surrounding employer testing and vaccination mandates, check out our “COVID-19 Issues” Practice Area.
The November-December issue of the Deal Lawyers newsletter was just posted and sent to the printer. Articles include:
– Fraud Claims in M&A No-Recourse Transaction: The Enduring Legacy of Abry Partners
– Buyer Beware: Affordable Care Act Penalties May Affect Deal Economics
– Litigation Funding: What Transactional Lawyers Should Know
– 21 Practical Tips for In-House Deal Lawyers
Remember that, as a “thank you” to those that subscribe to both DealLawyers.com & our Deal Lawyers newsletter, we are making all issues of the Deal Lawyers print newsletter available online. There is a big blue tab called “Back Issues” near the top of DealLawyers.com – 4th from the end of the row of tabs. This tab leads to all of our issues, including the most recent one.
And a bonus is that even if only one person in your firm is a subscriber to the Deal Lawyers newsletter, anyone who has access to DealLawyers.com will be able to gain access to the newsletter. For example, if your firm has a firmwide license to DealLawyers.com – and only one person subscribes to the print newsletter – everybody in your firm will be able to access the online issues of the print newsletter. That is real value. Here are FAQs about the Deal Lawyers newsletter including how to access the issues online.
Yesterday, the SEC announced a rule proposal that would update its electronic filing requirements to mandate the EDGAR submission of certain documents that filers still have the option to submit on paper. Here’s a copy of the 73-page proposing release and here’s a copy of the accompanying fact sheet. Want a statement from Gary Gensler? Okay, there’s one of those too.
The fact sheet says that the proposed rule changes are intended to promote more efficient storage, retrieval, and analysis of these filings, improve the SEC’s ability to track and process them, and modernize its records management process. According to the fact sheet, the rule would require the electronic submission of the following:
– Most of the documents that are currently permitted to be submitted electronically under Rule 101(b) of Regulation S-T, including filings on Form 6-K and filings made by multilateral development banks;
– The “glossy” annual report to security holders and certain foreign language documents, if submitted, in PDF format;
– Applications for orders under the Advisers Act;
– Confidential treatment requests for Form 13F filings; and
– Form ADV-NR (through the IARD system)
Form 11-K filers also would have to use iXBRL for financial statements included in those filings. Most of this stuff is a big yawn to corporate issuers, with the exception of the proposal to resurrect a filing requirement for the glossy annual report. As you may recall, the SEC effectively eliminated the longstanding requirement to furnish it with copies of glossy annual reports back in 2016. If this new proposal is adopted, companies will need to file a PDF of that document.
The most recent edition of the SEC’s Reg Flex agenda includes proposing rule amendments intended to “enhance issuer disclosures regarding cybersecurity risk governance, and in his September 2021 Senate Banking Committee testimony, SEC Chair Gary Gensler stated that he’d asked the Staff to “develop proposals for the Commission’s consideration on these potential disclosures.” So, it’s pretty clear that there’s cyber disclosure rulemaking on the horizon, but what form will the rule proposal take?
Last Friday, Commissioner Elad Roisman delivered a speech that suggests the debate may again be between those commissioners who favor principles-based rules and those who prefer a more prescriptive, line item-based approach. Not surprisingly, this excerpt from his speech indicates that Roisman’s squarely in the principles-based camp:
As some of you may have noticed, the Commission’s regulatory agenda includes possible regulatory action with regard to issuers, which could build on the Commission’s 2018 guidance. I have not seen any draft rule, so I cannot speak as to its nature or merits. But I will let you know some of the things that I would be looking for as I consider any additional rules in this area.
First, we need to define any new legal obligations clearly. Second, we need to make sure that these obligations do not create inconsistencies with requirements established by our sister government agencies. Third, we should recognize that some registrants have greater resources than others, and we should not try to set the resource requirements for an entity. And finally, because issuers’ businesses vary, the cybersecurity-related risks they face also will vary, and therefore a principles-based rule would likely work best.
My guess is that he’ll get buy-in from the other commissioners on the first three points, but given the reaction of the Democratic commissioners to prior principles-based proposals, I’m not very optimistic that Roisman will carry the day on his desire for a principles-based approach.
It sometimes can be a challenge for boards of private companies to determine the appropriate amount of D&O insurance coverage to purchase. If you find yourself advising one of those boards, this Woodruff Sawyer blog may be helpful. It sets forth five questions that private company boards should ask themselves when considering potential coverage limits. These questions are:
How Much D&O Insurance is Available for a Company at My Stage?
Who Are the Likely Plaintiffs in Potential D&O Litigation?
Are We in a Regulated Industry?
Are We Just Really Big?
Are We Going Public?
Woodruff Sawyer’s Priya Cherian Huskins offers up commentary on each of these questions. Here’s an excerpt with some of her thoughts on D&O insurance issues for sizeable private companies:
Difficult derivative suits with large settlements are a trend, making the purchase of at least substantial amounts of Side A D&O insurance an important purchase for large private companies. For more on this phenomenon, see my article on Five Types of Derivative Suits with Massive Settlements.
Finally, larger private companies are typically also companies that have (or are trying to recruit) independent directors, which is to say directors who have no financial sponsors like a private equity of venture capital firm.
Directors placed on boards to represent the interests of a PE or VC investor typically enjoy indemnification from that financial sponsor and can also receive insurance coverage through the financial sponsor’s insurance programs. The fact that independent directors do not have these backstops tends to drive an upgrade in a company’s own D&O insurance program, resulting in limits of at least $10 million to $20 million.
Yesterday, Corp Fin issued Staff Legal Bulletin 14L, which rescinds Staff Legal Bulletins 14I, 14J and 14K, and effectively takes a sledgehammer to four years of interpretive guidance on the exclusion of ESG-related shareholder proposals from proxy statements. In doing so, the new SLB may open the door for the inclusion of a wide range of previously excludable ESG proposals.
SLB 14I was issued in 2017 and addressed, among other things, the scope & application of Rule14a-8(i)(5) (the “economic relevance” exception) & Rule 14a-8(i)(7) (the “ordinary business” exception). In SLB 14I, Corp Fin observed that the key issue in evaluating both the economic relevance and ordinary business exceptions was whether a particular proposal focused on a policy issue that was sufficiently significant to the company’s business, and called for the board’s analysis of the significance issue to be contained in any no-action request. SLB 14J & 14K subsequently provided further interpretive guidance on these topics, and also addressed in some detail when proposals may be excluded under the ordinary business exception because they involve “micromanagement.”
Yesterday’s action effectively trashes the approach to the economic relevance & ordinary business exclusions outlined in these SLBs. Instead, SLB 14L says that Corp Fin will return to its traditional approach to social policy proposals:
Going forward, the staff will realign its approach for determining whether a proposal relates to “ordinary business” with the standard the Commission initially articulated in 1976, which provided an exception for certain proposals that raise significant social policy issues, and which the Commission subsequently reaffirmed in the 1998 Release. This exception is essential for preserving shareholders’ right to bring important issues before other shareholders by means of the company’s proxy statement, while also recognizing the board’s authority over most day-to-day business matters.
For these reasons, staff will no longer focus on determining the nexus between a policy issue and the company, but will instead focus on the social policy significance of the issue that is the subject of the shareholder proposal. In making this determination, the staff will consider whether the proposal raises issues with a broad societal impact, such that they transcend the ordinary business of the company.
Under this realigned approach, proposals that the staff previously viewed as excludable because they did not appear to raise a policy issue of significance for the company may no longer be viewed as excludable under Rule 14a-8(i)(7). For example, proposals squarely raising human capital management issues with a broad societal impact would not be subject to exclusion solely because the proponent did not demonstrate that the human capital management issue was significant to the company.
In light of Corp Fin’s return to a non-company specific approach to the significance of a social policy issue, Corp Fin says that it will no longer expect a board analysis as described in the rescinded SLBs as part of demonstrating that the proposal is excludable under the ordinary business exclusion. SLB 14L adopts a similar approach to the economic relevance exclusion, and therefore will also no longer require a board analysis here either.
SLB 14L also addressed the micromanagement exclusion, and observed that the rescinded guidance may have been taken to mean that any limit on company or board discretion constitutes micromanagement. In doing so, Corp Fin noted that “specific methods, timelines, or detail do not necessarily amount to micromanagement and are not dispositive of excludability.”
It’s a certainty that there will be a lot of commentary in the coming weeks about how much of a departure SLB 14L represents from actual Staff practice versus what was laid out in the now rescinded SLBs. But in any event, Corp Fin seems to be sending a message that the proponents of ESG-related topics are likely to face a friendlier environment than they have in recent years. That’s a message that won’t be lost on those proponents, who still have plenty of time to submit proposals for next proxy season.
Corp Fin addressed several other topics in SLB 14L, including the use of images in shareholder proponents’ supporting statements, issues surrounding proof of ownership letters, and the use of emails to submit proposals and deficiency notices. Here are some excerpts from Corp Fin’s discussion of these topics:
Use of images in supporting statements – “Questions have arisen concerning the application of Rule 14a-8(d) to proposals that include graphs and/or images. The staff has expressed the view that the use of “500 words” and absence of express reference to graphics or images in Rule 14a-8(d) do not prohibit the inclusion of graphs and/or images in proposals. Just as companies include graphics that are not expressly permitted under the disclosure rules, the Division is of the view that Rule 14a-8(d) does not preclude shareholders from using graphics to convey information about their proposals.”
Proof of ownership letters – “Some companies apply an overly technical reading of proof of ownership letters as a means to exclude a proposal. We generally do not find arguments along these lines to be persuasive. For example, we did not concur with the excludability of a proposal based on Rule 14a-8(b) where the proof of ownership letter deviated from the format set forth in SLB No. 14F. In those cases, we concluded that the proponent nonetheless had supplied documentary support sufficiently evidencing the requisite minimum ownership requirements, as required by Rule 14a-8(b). We took a plain meaning approach to interpreting the text of the proof of ownership letter, and we expect companies to apply a similar approach in their review of such letters.”
Use of email – “Unlike the use of third-party mail delivery that provides the sender with a proof of delivery, parties should keep in mind that methods for the confirmation of email delivery may differ. Email delivery confirmations and company server logs may not be sufficient to prove receipt of emails as they only serve to prove that emails were sent. In addition, spam filters or incorrect email addresses can prevent an email from being delivered to the appropriate recipient. The staff therefore suggests that to prove delivery of an email for purposes of Rule 14a-8, the sender should seek a reply e-mail from the recipient in which the recipient acknowledges receipt of the e-mail. The staff also encourages both companies and shareholder proponents to acknowledge receipt of emails when requested.”
Several members have already pointed out another issue that SLB 14L raises regarding proof of ownership letters. At one point in the discussion, Corp Fin says that “we believe that companies should identify any specific defects in the proof of ownership letter, even if the company previously sent a deficiency notice prior to receiving the proponent’s proof of ownership if such deficiency notice did not identify the specific defect(s).” This kind of “double notice” is something that hasn’t been required before now.
