Every few years, we survey the practices relating to blackout and window periods (there are results from five others in our “Blackout Periods” Practice Area). Here is the latest survey results, which are repeated below:
1. Does your company ever impose a “blanket blackout period” for all or a large group of employees?
– Regularly before, at, and right after the end of each quarter – 74.1%
– Only in rare circumstances – 17.2%
– Never – 8.6%
2. Our company’s insider trading policy defines those employees subject to a blackout period by roughly:
– Stating that all Section 16 officers are subject to blackout – 6.8%
– Stating that all Section 16 officers “and those employees privy to financial information” are subject to blackout – 5.1%
– Stating that all Section 16 officers “and others as designated by the company” are subject to blackout – 18.6%
– Stating that all Section 16 officers “and those employees privy to financial information and others as designated by the company” are subject to blackout -47.5%
– All employees – 5.1%
– Some other definition – 16.9%
– Our company doesn’t have an insider trading policy -0.0%
3. Does your company allow employees (that are subject to blackout) to gift stock to a charitable, educational or similar institution during a blackout period?
– Yes, but they must preclear the gift first – 52.5%
– Yes, and they don’t need to preclear the gift – 8.5%
– No – 20.3%
– Not sure, it hasn’t come up and it’s not addressed in our insider trading policy – 18.6%
4. Does your company allow employees (that are subject to blackout) to gift stock to a family member during a blackout period?
– Yes, but they must preclear the gift first – 39.7%
– Yes, and they don’t need to preclear the gift – 8.6%
– No – 24.1%
– Not sure, it hasn’t come up and it’s not addressed in our insider trading policy – 27.6%
5. Are your company’s outside directors covered by blackout or window periods and preclearance requirements?
– Yes – 98.3%
– No – 1.7%
Don’t forget that we have posted a new “Quick Survey on Rule 144 Practices.” Please take a moment to weigh in!
Being In-House
In this podcast, Mike Cahn, a former Senior Associate General Counsel of Securities at Textron, talks about what’s it like to be in-house and how that role has changed over the years, including:
– When did you start and what were your duties as they evolved over time?
– Over time, how much more did you need to rely on outside counsel?
– Did you work more hours as the regulatory environment became more complex?
– What advice would you give to someone going in-house today?
Citigroup’s Director Search: A New Recruiting Method?
As noted in this WSJ article, Citigroup’s lead director posted this statement on the company’s website, noting that the board seeks new finance-savvy directors. The statement appears to be from the company’s Chair of the “Nomination and Governance Committee,” who also serves as the board’s lead director.
I was quite surprised by the statement for several reasons. First was just the novelty of it – one of the largest companies in the world recruiting publicly? I can’t recall that happening before. However, the purpose of this statement likely was not to recruit; rather it was likely posted to assure the market that the company knows changes on the board are necessary (on the same day, a management shake-up was announced). Even if boards generally are increasingly having trouble finding willing – and capable – candidates, I would never imagine Citigroup to be in that boat.
Another striking item though is that the statement – at least, implicitly – comes from a member of the board. It is rare to have broad communications addressed to investors from a director. Most companies shy away from having directors as authorized spokespersons (except from the Chair in limited circumstances).
I do recognize that Citigroup has novel circumstances, with a major crisis at hand – but I’m still surprised by the statement for a third reason. From a litigator’s perspective, the call for “finance-savvy” directors seems a tacit admission that the current board was ill-equipped to oversee the type of operations that the company is engaged in.
The bottom line is that I chalk up the statement to “things you are willing to do when shareholders threaten to withhold or vote against your director nominees.”
As an aside, here is an article criticizing the notion of a board packed with financial-savvy people.
In the March-April ’08 issue of The Corporate Executive – that was just mailed – there is extensive analysis of why every company should now be switching from cashless exercises to “net exercises.” This important issue provides guidance – and explains all the benefits of implementing “net exercises” now.
Every detail of what you will need to implement “net exercises” is addressed, including how to review outstanding plans and agreements and (where necessary) how to modify them to permit net exercises. Every in-house and outside lawyer (and stock plan administrator, CFO, etc.) needs this March-April issue to be on top of the details necessary to understand and implement this important new development.
Here is a blurred version of the issue to give you a sense of the substance if you aren’t a subscriber. Try a no-risk trial to get the March-April issue rushed to you today.
Lesson Learned: Avoid California
One of our in-house members recently listened to Keith Bishop’s podcast on “E-Proxy and California Law” from a while back and came up with this takeaway: If possible, non-California companies should avoid holding any board meetings in California since Cal. Corp. Code Sections 1600 and 1602 expressly extend shareholder and director inspection rights to foreign corporations that “customarily” hold board meetings there.
Even assuming the e-proxy stuff gets worked out in California (which it sounds like it will per this blog; it’s not a “done” deal yet as first hearing on the “urgency” bill isn’t until next week), if holding board meetings in California provides any sort of a “hook” for California law to apply to non-California companies, you might consider avoiding holding board meetings there in the first place…
Where Art Thou “Billy Broc” and “Dave the Animal”?
After a six-month hiatus, “Billy Broc” and “Dave the Animal” are back by popular demand in this video: “Dave’s Going Through Some Changes.” Too early for Academy Award consideration?
On Friday, I blogged about a redlined version of Corp Fin’s new Form 8-K Interps and noted that to do the new interps justice, they really needed to be redlined against the three old sources of interps. Well, John Newell of Goodwin Procter has saved the day and provided us with just that – here are his redlined versions as compared against the ’97 Phone Interps; ’03 Non-GAAP FAQs and the ’04 8-K Interps. These gems – along with Howard Dicker’s redline against the ’04 FAQs – are posted in our “Form 8-K” Practice Area.
Quite a task, two words come to mind: “dissect” and “autopsy.” Lawyers playing doctors…
New Quick Survey: Rule 144 Trends
A member recently asked to pick our brain as to what we’re seeing in the market under new Rule 144 regarding the practice of law firms giving legend removal opinions for securities of reporting issuers held more than six months – but less than twelve months – after issuance. In other words, they were curious how firms are dealing with the obligation to report on a timely basis for twelve months with respect to opinions rendered prior to the end of the twelve month period.
We haven’t heard of a settled practice. There is a footnote in the adopting release that could support waiting to the end of the one year period, but it isn’t entirely clear if that is black letter law as the SEC also said the issue is one to be resolved by contract and state law.
We have posted a new “Quick Survey on Rule 144 Practices” to ask your anonymous views on this issue, as well as another one on registration rights. Please take a moment to weigh in!
The New Business Combination Accounting
On DealLawyers.com, we recently posted the transcript from the webcast: “The New Business Combination Accounting.”
Yesterday, Corp Fin posted a revised version of its spanking new “Form 8-K Compliance and Disclosure Interpretations,” so be sure to print out this revised version dated April 3rd. It looks like the Staff eliminated Intepretation 206.02, which conflicted with Question 106.04 (carrying over Question 25 of the ’03 Non-GAAP Measures FAQs).
Thanks to Howard Dicker of Weil Gotshal, we have posted this Blacklined Version of the new Interps against the ’04 FAQs. Note that it’s “over-blacklined” because the exec comp questions were moved from Item 1.01 to 5.02. It’s still helpful because the Staff tagged every Interp as “new” even though most aren’t (a byproduct of the Staff deeming the Interps as their new brand of informal written guidance: the “Compliance and Disclosure Interpretations”).
Note that to comprehensively understand the changes the Staff made to the 8-K interps, you actually need three redlines: one for the old Phone Interps, one for the ’04 FAQs and one for the ’03 Non-GAAP FAQs.
– 103 companies have used voluntary e-proxy so far
– Size range of companies using e-proxy varies considerably; all shapes and sizes (eg. 36% had less than 10,000 shareholders)
– Bifurcation is not being used as much as I would have thought; of all shareholders for the companies using e-proxy, only 5% received paper initially instead of the “notice only”
– 0.70% of shareholders requested paper after receiving a notice
– 60% of companies using e-proxy had routine matters on their meeting agenda; another 32% had non-routine matters proposed by management; and 8% had non-routine matters proposed by shareholders. None were contested elections.
– Retail vote goes down dramatically using e-proxy (based on 80 meeting results); number of retail accounts voting drops from 19.2% to 4.6% (over a 75% drop) and number of retail shares voting drops from 30.1% to 23.3% (a 23% drop)
Our April Eminders is Posted!
We have posted the April issue of our complimentary monthly email newsletter. Sign up today to receive it by simply inputting your email address!
With Congress, the SEC Staff, investors and the media scrutinizing this year’s disclosures, it is critical to have the best possible guidance for addressing next year’s proxy statement compensation disclosures. This pair of full-day conferences will provide the essential – and practical – implementation guidance that you need going forward.
Like last year’s blockbuster conferences, an archive of the entire video for both conferences will be right there at your desktop to refer to – and refresh your memory – when you are actually grappling with drafting the disclosures or reviewing/approving pay packages. Here are FAQs about the Conferences.
For those choosing to attend by coming to New Orleans, I encourage you to also register for the “16th Annual NASPP Conference,” where over 2000 folks attend 45+ panels. And if you attend the NASPP Conference, you can take advantage of a special reduced rate for the Exec Comp Conferences.
Register by May 20th for Early-Bird Rates: Whether you attend in New Orleans or by video webcast, take advantage of early-bird rates by registering by May 20th. You can register online or use this order form to register by mail/fax.
Note that we have combined both of our popular Conferences – one focusing on proxy disclosures and the other on compensation practices – into one package to simplify registration.
If you have questions or need help registering, please contact our headquarters at info@thecorporatecounsel.net or 925.685.5111 (they are on West Coast, open 8 am – 4 pm).
Corp Fin Posts New Form 8-K Interpretations
Yesterday, Corp Fin posted the long-awaited “Form 8-K Compliance and Disclosure Interpretations,” which is a continuation of the Staff updating the Telephone Interpretations Manual and other odds & ends of guidance it has issued over the years. These new interps specifically update the Phone Manual Interps, as well as the Non-Gaap FAQs from ’03 and the 8-K FAQs from ’04. [I say “long-awaited” because the SEC had a note on its site that these were “coming soon” for quite some time.]
REITs and Their Form 10-Ks
I really dig it when law firms write memos with nuggets they heard at conferences. It’s rarely done – but I find them to be very practical. This recent Goodwin Procter memo is no exception, covering a finer point about what REITs need to be doing in their Form 10-Ks as covered by a point raised by the Corp Fin Staff at the NAREIT Law and Accounting Conference. Good stuff (just like these 41 pages of “SEC Speaks” notes from Sidley Austin – 41 pages!)…
My only quibble with the memo is that the Staff’s point about the need to disclose property operating data should not come as a surprise – since the Staff has always considered the operating data material to the business disclosure in a 10-K.
I’m pretty excited to announce our latest blog on CompensationStandards.com: “The Consultants Blog.” This blog will feature wisdom from respected compensation consultants.
So far, these consultants have agreed to kick off the vibrant conversation on the issues, developments and trends faced by those seeking to implement responsible compensation practices: Don Delves, Mike Kesner and Fred Whittlesey. In the coming weeks, I expect to add more consultant bloggers willing to share their thoughts. Check out the blog and input your email address on it so that you can get an email whenever an entry is posted…
Evelyn Y. Davis: Catch Her in Action
Perfect timing for today’s webcast about conducting annual meetings, here is a CNBC interview with Evelyn Davis. CNBC should make her a regular commentator; I doubt it would impact the quality of their reporting. Thanks to ProxyMatters.com for digging this gem out…
SEC’s New – and Free – Edgar Feeds
Recently, the SEC has added news feeds for every issuer and reporting person who files on Edgar. You can now track what is being filed without having to use a paid subscription service. Note that the SEC has not yet touted this new feature via a press release or its various guides about how to search filings.
On his “IR Web Report,” Dominic Jones explains the potential ramifications of this development on Business Wire, PR Newswire, Edgar Online, etc. My guess is that their businesses won’t be too damaged – yet – since the Edgar feeds include only generic filing headings, dates and internal tracking numbers, which is less useful than providing a summary or the full text of each filing. Dominic also explains how this allows companies to ensure widespread syndication of their news to the masses simply by filing their news releases on Edgar.
By the way, Dominic had a beauty of an April Fool’s joke posted on his site yesterday…
Now that we have the 212-page Blueprint Paulson Report, we all can start drilling down into what it means. More analysis will follow over the next few weeks; today, I want to focus on a narrow aspect of the report’s long-term recommendation: the demise of the US Securities & Exchange Commission.
This is not an April Fool’s joke. The Paulson Plan recommends an overhaul of the regulatory framework for the markets, which includes moving the responsibilities that the SEC currently has into other agencies. The Corp Fin and other accounting responsibilities that the SEC presently has would be rolled over to a new “Business Conduct Regulator.”
Yesterday, I already whined about excessive change, so no need to drag you through that mud again. I’m just nostalgic about the prospect of the term “SEC” being a fading footnote in history, given that my career continues to revolve around the place and I have fond memories of working there. Interestingly enough, quite a few securities regulators in other countries have used some derivation of the name – or even the identical name – for themselves (eg. Bandgadesh’s regulator has the same name). Here is a partial list of securities regulators from around the world.
Speaking of April Fools: The NASPP has posted an alert highlighting a new study regarding option exercise behavior. The study unearthed some very interesting and surprising trends in how employees exercise options.
Conduct of the Annual Meeting
Tune in tomorrow for the webcast – “Conduct of the Annual Meeting” – during which a panel of experts will give practical guidance about all the issues that may arise during your upcoming annual meeting. This is a reprise of a similar webcast that we did four years ago that still remains one of my all-time favorites. This promises to be a gem as the speakers will spend some time on the nitty gritty of how the voting process works, demystifying the chain of voting through intermediaries, etc.
Corp Fin’s “Sample Letter” on Fair Value Measurements
Last week, Corp Fin posted this sample letter to remind companies of their MD&A obligations when applying SFAS 157 – regarding fair value measurements – for their upcoming Form 10-Qs. The letter was sent to companies that “reported a significant amount of asset-backed securities, loans carried at fair value or the lower of cost or market, and derivative assets and liabilities” in the financial statements in their recent Form 10-Ks.
Due to this White House press release from Friday, the status of Luis Aguilar and Elisse Walter to become SEC Commissioners has been upgraded from “rumor” to “announced intentions.” Once nominated – and if confirmed by the US Senate – they will fill out the Commission and both serve as Democratic Commissioners. Elisse’s appointment in particular is timely given the potential merger of the SEC-CFTC and she is a former CFTC General Counsel (as well as a former Corp Fin Deputy Director). Here is a Washington Post article about the coming nominations.
If these two are indeed nominated, it will prove me wrong that this Administration wouldn’t bother to fill the open Democratic slots – although these candidates have been “rumored” for months and nothing was done until now, so maybe I’m partially right?
Today’s a Big Day: Paulson’s Proposed Regulatory Overhaul
Today, Treasury Secretary Henry Paulson will unveil his final report that serves as a potential blueprint for a regulatory overhaul. This is the product of Paulson’s Committee on Capital Markets Regulation that has been working on reform efforts for the past year – efforts that began well before the market went south and the housing market exploded. Here is the executive summary of the report – and here is the 212-page report.
The report breaks down proposals into short-, intermediate- and long-term:
1. Short-term – Take action now to improve regulatory coordination and oversight now in reaction to the credit crunch by:
– Empower the President’s Working Group on Financial Markets (which would be expanded to add heads of banking regulators) to serve as the inter-agency body to promote coordination and communication for financial policy – and extend its authority over all of Wall Street rather than just financial institutions.
– Create the Mortgage Origination Commission set – and regulate – uniform minimum licensing qualification standards for state mortgage market participants.
– Ensure the Federeal Reserve the sole authority to draft regulations for national mortgage lending laws and clarify and enhance the enforcement authority for federal laws.
– Enhance the temporary liquidity provisioning process during those rare circumstances when market stability is threatened so that the process is calibrated and transparent; appropriate conditions are attached to lending; and information flows to the Federal Reserve through on-site examination or other means as determined by the Fed.
2. Intermediate – Eliminate some of the duplication of the US regulatory system
3. Long-term – Create an “optimal” regulatory framework, with an objectives-based regulatory approach, with a distinct regulator focused on one of three objectives— market stability regulation, safety and soundness regulation associated with government guarantees and business conduct regulation.
Here is a statement from SEC Chairman Cox, recognizing a need to integrate a reduced number of regulators; former SEC Chairman Arthur Levitt holds a similar view according to this NY Times article from Sunday (although Arthur doesn’t like the idea of the stock exchanges taking on more self-regulation).
Competing Democratic Reform Efforts: Here is a WSJ op-ed from Senator Schumer from Friday (remember that Schumer put out a reform report with NYC Mayor Bloomberg in early ’07). And Rep. Frank is ready to spring into action, as noted in this NY Times column.
My Ten Cents: Initial Reactions and a Bit of Cynicism
It’s hard to evaluate the Treasury’s broad plan without seeing it. I agree that we need regulators with the power to oversee a range of products that now stretch across the jurisdictions of too many agencies. So some change is definitely warranted. So without knowing the details yet, here’s a stab at an initial reaction:
The plan for reform makes Sarbanes-Oxley look like a drop in the bucket in terms of the magnitude of change. And a lot of it sounds great on paper. Sure, we have too many regulators. Can you believe there are at least six regulators for financial institutions in this country? The Fed, FDIC, OCC, OTS, NCUA and a myriad of state regulators. Merging them and the SEC-CFTC is nothing new and has only been stopped in prior years due to political maneuvering on the Hill.
Then, the cynic in me digs in. It’s easy to propose a lot of change for the sake of change in the face of a major crisis. But what’s it gonna cost? There is no way that a new government agency – or even a merged one – is gonna hit the ground running. New people get hired and need to be trained. There is no institutional memory to guide them. It’s true that the most ripe time to effect governmental reform is during a crisis (and during a Presidential election year) – otherwise folks argue for the status quo – but as many complain about SOX, it might not be wise to act too hastily when the chips seem down.
On the other hand, the new Grand Poobah role for the Fed seems like it would consist of little more than as an information gatherer until a crisis has developed. Being reactive rather than proactive is not gonna stop a reincarnation of the mess we are mired in today.
Much of the “meat” of the Paulson plan would seem to reflect the view that rules and agencies are no substitute for market discipline. But is market discipline really the right answer given what we are experiencing now? In my opinion, a lot of the blame for what is happening today is that Wall Street financially engineered itself into a hole. And it’s a dark hole, with a bottom that no one can understand. You can create all the regulators you want, but none of them will ever be able to understand the complex morass of securitizations, resecuritizations, swaps, etc. that have grown to trillions and can’t be explained. For me, this is the crux of the problem and can’t be solved by regulation. “No doc” mortgages were being originated because there were plenty of places to go and immediately sell them.
A decade ago, I spent a year in the Corp Fin branch that reviewed the asset-backed securities that were registered with the SEC. Most ABS aren’t registered and most of the complex instruments that have been created over the past 15 years have been traded over-the-counter. If you have ever read a resecuritization prospectus, you quickly realize that it’s mostly mumbo jumbo. And I’m sure the asset-backed market has become much more “sophisticated” since my very limited experience with it.
I also fall back on some of my in-house experiences. Watching a room full of bankers conduct a PowerPoint presentation to explain how smart it would be for the company to issue “tracking stock” (this was fashionable about a decade ago when a dozen or so companies got convinced of the need to create securities for which there were no voting rights and – arguably – no fiduciary duties to the holders; not the best governance framework nor not a sound investment as it turned out). Or enter into synthetic real estate leases to keep debt off the books because a company is too highly leveraged. More mumbo jumbo.
And I would imagine that this is just a drop in the bucket. I haven’t worked on Wall Street and I’m not privy to her dark secrets. But I think I know enough to give my ten cents in asking for some of those on Wall Street to change their philosophy and stop looking for fees at the expense of the financial health of this country. There has to be accountability at the top. As said so often during the Sarbanes-Oxley reform debates, you can’t regulate ethics and morality.
I like the idea of what has happened in the United Kingdom. In the wake of the Northern Rock failure, the Financial Services Authority went out and conducted a post-mortem and issued a report saying “what they missed, what needed to be corrected and what they were doing about it.” Hopefully, this is part of the Paulson plan that will be released today, but I doubt it. We need to know what went wrong before we fix it, right? Or maybe this crisis runs so deep that no one really knows the extent of what went wrong. Even if that’s true, let’s understand and learn from that as part of such a report to start…
The Bottom Line: Smarter people than me will offer more cogent arguments “for” and “against” various aspects of the numerous proposed reforms. And I’m grateful for that. All I ask is that if new governmental agencies are formed, please avoid the cartoonish names that are mentioned in the Paulson plan. The “Business Conduct Regulator” sounds like it came from the Flintstones…
Have you had a chance to read about the 580-page examiners report about what happened at New Century Financial, a sub-prime lender in bankruptcy, leading up to its collapse? It eerily has some similarities with the audit of Enron. Here is a WSJ article on the report.
In the report, the bankruptcy examiner strongly condems the role of the independent auditor – KPMG – and its work performed in connection with the 2005 and 2006 audits of New Century, including the firm’s judgments, independence and objectivity. It discusses potential disputes among the professionals – just as it occurred at Enron – as well as notes a lack of adequate experience among some of the staff and a lack of documentation that would provide a basis for their judgments and conclusions, and rationalization of materiality. The report also heavily criticizes the company’s audit committee and internal auditors.
Remember that KPMG – until recently – had a court-appointed monitor as a part of their tax shelter sanctions (and subsequent deferred plea agreement with the DOJ). It appears the alleged problems with the New Century audit may have occurred during the time period when the monitor was in place, albeit his role was primarily focused on the firm’s tax practice. Here is the first complaint filed against New Century…
Notably, the SEC’s Advisory Committee on Improvements to Financial Reporting (CIFiR) is looking at recommendations that could further relax regulation with respect to some of these matters. Also notable is that this report comes at a time when auditors are pressing hard to limit the ability of bankruptcy trustees to bring litigation against them.
Nasdaq Revises Its SPAC Listing Proposal
Last week, the Nasdaq revised its proposed rule change regarding SPACs that it originally filed a few weeks ago. Under the revised proposal, SPACs would not be required to use cash in completing a qualifying business combination as was originally required in Nasdaq’s proposal.
Speaking of SPACs, Goldman Sachs made news this week for jumping on the SPACs bandwagon with a new breed of them – see this DealBook blog and the Liberty Lane Acquisition Form S-1 filed by Goldman.
American Greed: The TV Show
I guess it was just a matter of time before the people that run television would come up with a reality-based show solely about greed. “American Greed” is in its second season on CNBC and has run episodes already on quite a few situations that you likely are familiar with (eg. WorldCom).
A few weeks ago, I blogged about Canada’s new material contract filing requirements and waxed about what might happen if the same standard applied in the US. A member responded as follows:
Unrelated to your pessimism regarding the lengths to which some pracitioners may go to further their clients efforts to avoid disclosure of terms of material contracts is the consideration that boilerplate used for many agreements includes a general confidentiality provision relating to the agreements’ terms. In many of those cases, there is a simple “as required by law” exception to the confidentiality provision.
The exception often is used by a party required to file reports with the SEC as authorization to file the contract with the SEC as a material contract, subject to a request for confidential treatment for those portions of the contract that, consistent with applicable regulations, are permitted to remain confidential. And, after its review and processing of the related confidential treatment request, whatever the SEC Staff allows to remain confidential, so remains; whatever the Staff objects to remaining confidential, gets disclosed to the public in one form or another, consistent with applicable regulations.
Of course, in many instances where one party REALLY does not want to have certain terms disclosed and it is unclear whether these terms are of a type for which the Staff will grant confidential treatment, the typical confidentiality provision can be much more elaborate – for instance, allowing the counterparty to intercede with the government seeking to require disclosure and, perhaps, more significant remedies, such as the right to terminate a commercial-type agreement.
All of this being said (and again leaving your pessimism aside), I have noticed agreements where concepts meant to remain confidential are relegated to schedules, and the report, which includes the agreement as an exhibit, simply omits the schedules. Presumably, the basis for omission of the schedules relates to the provisions of the second sentence of Item 601(b)(2) of Reg S-K which states: “Schedules (or similar attachments) to these exhibits shall not be filed unless such schedules contain information which is material to an investment decision and which is not otherwise disclosed in the agreement or the disclosure document.”
Notably, Item 601(b)(10) of Reg S-K doesn’t contain an analogous provision. However, most practitioners are aware of a variety of practices that have developed in relation to the filing of exhibits and schedules to contracts, whether the contracts are filed pursuant to Item 601(b)(2) or (b)(10). Specically, many practitioners are aware of registrants which have omitted schedules to (b)(10)-filed contracts.
Presumably, these registrants have concluded that the omission is immaterial in light of other disclosure. In addition, many practitioners are aware of registrants which have omitted exhibits that are forms of contracts executed contemporaneously with a filed material contract and simply file that executed versions of these contracts. While the immateriality of these forms is undeniable (unless the exhibits are not filed in executed form contemporaneously with the primary contract), it is unclear whether this practice is sanctioned by applicable regulations.
Nasdaq Acts on IFRS
Recently, Nasdaq made this proposal to amend its listing requirements to accept financials prepared in accordance with IFRS from foreign private issuers. It is anticipated that all stock exchanges will amend or interpret their listing standards to conform to the SEC’s acceptance of IFRS.
The Rise of “Social” Proposals
Over the past few years, shareholders have been supporting so-called “social” proposals more than ever before (also known as “ES&G” proposals). For a long time, the percentage of shareholders that supported these types of proposals remained in single digits. Given the growing support of them over the past few proxy seasons, it wouldn’t be surprising if they started to routinely receive majority support.
During our recent webcast with Pat McGurn of RiskMetrics (transcript here), Pat noted that “30% of the E&S proposals won at least 15% support last year. And more than 25 of their proposals won support in excess of 30%. And several, including one that was opposed by management, ended up winning.”
And as Pat noted, companies are more willing to settle on these types of these issues nowadays and have these proposals withdrawn. Some boards are concerned about reputational risk; some are worried about the long-term impact of issues like climate control. In fact, last Fall, Grant Thornton conducted a survey of more than 500 business executives and found that only a quarter of survey respondents agreed that profits needed to be sacrificed when dealing with these issues, while three quarters believed corporate responsibility could enhance profitability. As a result, 77% said they expected corporate responsibility initiatives to have a major impact on their business strategies over the next several years.
Other findings in the Grant Thornton survey include:
– 19% of the companies surveyed report having a single point person in charge of all their corporate responsibility programs.
– 68% say they expect environmental responsibility reporting to be mandatory within the next three to five years, yet 55 percent say they have no plans to do any kind of corporate responsibility reporting.
– The four greatest obstacles to successful execution of corporate responsibility programs are: focus on quarterly earnings or other short-term targets, cost of implementation, measuring and quantifying ROI, and a non-supportive corporate culture.
– The three greatest benefits of enacting corporate responsibility programs are: improves public opinion, improves customer relations and attracts/retains talent.
– 72% of respondents believe that government should regulate companies for their effect on the environment and 56 percent said companies should be regulated for their effect on human rights and labor practices.
– 70% of respondents foresee increased government regulation for environmental responsibility in five years or less.
– 62% believe that pressure to pursue corporate responsibility programs in the future will come chiefly from consumers (45%) and investors (21%).
– 64% believe that the human resources department should take on social programs, 50% say operations should be in charge of environmental initiatives and 57% say finance should be responsible for economic responsibility programs.
