Corp Fin has posted four new COVID-19-related FAQs, most of which concern the interaction of Form S-3 and the SEC’s COVID-19 Order. As you know, in the COVID-19 Order, the SEC provided public companies that are unable to file timely “due to circumstances related to COVID-19” with conditional 45-day extensions to file or furnish specified SEC various reports, schedules and forms that would otherwise have been due between March 1 and July 1, 2020, provided they comply with certain requirements (see this PubCo post). If a company does not file a required report on the original due date in reliance on the COVID-19 Order, what does that mean for its use of Form S-3?
At a meeting today of the SEC’s Investor Advisory Committee, the committee discussed disclosure considerations arising in the context of COVID-19. In addition to relentlessly complimenting the SEC for its efforts during the pandemic, the committee members offered a number of valuable insights, particularly related to human capital disclosure (which one committee member characterized as “as important a mission as the SEC has ever faced”) and other stakeholder disclosures, as well as accounting, controls and liability issues. Many of the committee also seemed to be pleased with nature of the disclosure that companies were providing, even offering in-quarter information in some cases. There was also a brief discussion of virtual shareholder meetings.
A lot of worthwhile energy in the last few years has been concentrated on increasing diversity in corporate leadership—especially board gender diversity— but how much progress is being made at the level of the C-suite? This paper from the Rock Center for Corporate Governance at the Stanford Graduate School of Business addresses the sorry state of the C-suite as a whole when it comes to diversity of any kind. According to the paper, notwithstanding numerous efforts launched by asset managers, institutional investors and companies to increase diversity in board and senior leadership, these efforts “have not contributed to tangible progress in increasing the prevalence of diverse executives in corporate leadership positions.” Why have these efforts not been more successful? The paper looks at C-suite (CEO and direct reports) demographics to get a better handle on the “actual pipeline, as it stands today, for next year’s newly appointed CEOs and future board members.”
The FT is reporting that the SEC is abandoning a key component of its proposal to add new disclosure and engagement requirements for proxy advisory firms, such as ISS and Glass Lewis. (See this PubCo post.) According to the report, the SEC has “scrapped the portion of the proposal that would have forced proxy advisers—led by Institutional Shareholder Services and Glass Lewis—to submit their voting recommendations to companies for checking before distributing them to investors in advance of shareholder meetings.” The proposal had received substantial pushback, including from the Council of Institutional Investors and even the SEC’s own Investor Advisory Committee. However, the FT appears to point the finger, or attribute the victory, depending on your point of view, primarily to hedge fund activists “who court proxy advisers’ support when fighting for board seats.”
Several leaders of the World Economic Forum have published Stakeholder Principles in the COVID Era, characterizing the “business community’s contribution” as “to be leaders of responsiveness and stewards of resilience.” Nice cadence—I like it. But what does it mean in practice?
As you know, critical audit matters are defined for purposes of the auditor’s report as “matters communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the financial statements; and (2) involved especially challenging, subjective, or complex auditor judgment.” The standard for CAMs became effective for audits of large accelerated filers (LAFs) for fiscal years ended on or after June 30, 2019, and will be required for companies other than LAFs (excluding emerging growth companies) for fiscal years ending on or after December 15, 2020. CAM disclosure is strictly the province of the auditors and included in the auditor’s report. But what has been the role of audit committees? Audit Analytics has performed an analysis of companies in the S&P 1500 to see what, if anything, they have disclosed in their proxy statements about the part that audit committees have played in connection with CAM identification and disclosure.
Nasdaq giveth and Nasdaq taketh away. Having temporarily tolled the compliance period for certain continued listing requirements (see this PubCo post), Nasdaq has now proposed, and the SEC has approved, a rule change to expedite delisting (1) for securities with a closing bid price at or below $0.10 for ten consecutive trading days during any bid price compliance period and (2) for securities that have had one or more reverse stock splits with a cumulative ratio of one for 250 or more shares over the prior two-year period.