Corp Fin staff updates guidance for “notice-only” delivery of proxy materials
The Corp Fin staff announced that it has updated its Guidance for Conducting Shareholder Meetings in Light of COVID-19 Concerns (see this PubCo post), originally published on March 13. The updated guidance clarifies that the prior guidance regarding changes to the date, time and place of annual meetings of shareholders also applies to special meetings. The update also provides some relief for companies that shift to the “notice-only” method of furnishing proxy materials as a result of COVID-19-related delays in printing and mailing of full sets of proxy materials.
NYSE temporarily eases shareholder approval requirements for certain equity issuances
After the 2008 financial crisis, many companies sought to raise capital by selling equity in private placements, often to existing major shareholders, but faced limitations resulting from the NYSE’s shareholder approval requirements. To address that concern in the Covid-19 crisis, the NYSE has proposed, and the SEC has approved and declared immediately effective, an NYSE rule change to waive, through June 30, 2020 and subject to compliance with conditions, application of certain of the shareholder approval requirements in Section 312.03 of the NYSE Listed Company Manual. That rule requires listed companies to obtain shareholder approval prior to certain types of equity issuances. The general effect of the waivers, according to the NYSE, is to make these NYSE shareholder approval requirements more comparable to the similar Nasdaq requirements on a temporary basis. The waivers are intended to provide temporary relief to listed companies that may have urgent liquidity needs in the coming months as a result of the impact of COVID-19.
Glass Lewis to publish unedited company feedback with its research reports
You might recall that, in November 2019, the SEC proposed amendments to the proxy rules to add new disclosure and engagement requirements for proxy advisory firms, such as ISS and Glass Lewis. Among the amendments included in that proposal was a new provision that would require proxy advisory firms to allow companies time to review and provide feedback on the advisory firm’s advice in advance of dissemination of the advice to the firm’s clients. (See this PubCo post.) Although there has been a substantial amount of pushback with regard to the SEC proposal and its earlier related guidance, including litigation filed by ISS (see this PubCo post), as noted on thecorporatecousel.net blog, proxy advisor Glass Lewis has announced that it will now include “unedited company feedback on its research…with all its proxy research papers” and will deliver that information “directly to the voting decision makers at every investor client.” Will ISS follow suit?
Delaware emergency order provides relief regarding changes to annual meetings
As you may know, even though Corp Fin staff had provided relief allowing public companies a relatively simple way to advise their shareholders of a change in the date or location of their annual meetings (including a change to a virtual-only format), companies incorporated in Delaware that needed to make those same changes still had to address the complications associated with compliance with Delaware law. Fortunately, tonight, the Governor of Delaware appears to have come to the rescue with an emergency order that may ease many of those complications.
Corp Fin staff extends conditional relief to incorporation of Part III information
Today, the Corp Fin staff provided some additional relief in the context of incorporation of Part III information (very generally, information about directors and executive officers) into Forms 10-K. As you know, a company is allowed to incorporate into its Form 10-K Part III information from its definitive proxy (or information) statement if filed not later than 120 days after the end of the related ?scal year. If the definitive proxy statement is not timely filed, the company must file an amendment to its Form 10-K by the 120-day deadline to provide the omitted Part III information. New Form 10-K CDI 104.18 will allow a company to rely on the conditional relief provided by COVID-19 Order (Release No. 34-88465 (March 25, 2020) for the filing of the Part III information as long as the 120-day deadline falls within the relief period specified in the Order (March 1 and July 1, 2020) and the company meets the conditions of the Order (see this PubCo post).
SEC Chief Accountant addresses CECL and accounting estimates in light of COVID-19
SEC Chief Accountant Sagar Teotia today issued a Statement on the Importance of High-Quality Financial Reporting in Light of the Significant Impacts of COVID-19, which stressed the importance of continuing to provide high-quality financial information for investors and other stakeholders in these uncertain times. In his statement, among other topics, Teotia addressed estimates and judgments as well as temporary relief provided under the CARES Act that allows banks and other financial institutions to suspend compliance with two provisions of GAAP, including CECL. Teotia emphasized that the Office of Chief Accountant is available for consultation and encouraged companies and others with questions as a result of COVID-19 to contact OCA.
SEC Chair Clayton highlights need for complete disclosure even if periodic reports are delayed due to COVID-19
In a statement issued today, SEC Chair Jay Clayton emphasized that, although the timing of certain company filings may be impacted by COVID-19, the SEC is “keenly focused on ensuring that issuers and other registrants continue to provide material information to investors, including information related to the current and expected effects of COVID-19, as promptly as practicable.” In another statement, this one to a meeting this afternoon of the SEC’s Investor Advisory Committee, Clayton stressed the importance of providing information to investors, particularly “in times of economic shock and uncertainty.” The increased investor demand for information fueled by the uncertainties associated with COVID-19, together with the fact that, as a result of COVID-19, companies may not be able to file required periodic reports on a timely basis, has created “a challenge.”
Corp Fin issues two new CDIs regarding Rule 12b-25 in the context of the SEC’s conditional relief order
The Corp Fin staff has issued two new CDIs regarding Rule 12b-25 in the context of the SEC’s conditional relief order. That order extends for 45 days the filing periods for specified SEC filings due between March 1 and July 1, 2020. (See this PubCo post.) Both of the CDIs reaffirm that companies must comply with the conditions of the order, particularly the Form 8-K/6-K requirement, to take advantage of the relief. Companies that are unable to comply “are encouraged to contact the staff to discuss collateral consequences of late filings.”
Cooley Alert: President Signs CARES Act
On Friday, the President signed into law the ‘‘Coronavirus Aid, Relief, and Economic Security Act” (CARES Act), a $2 trillion relief package intended to provide “emergency assistance and health care response for individuals, families and businesses affected by the 2020 coronavirus pandemic.” Here is a link to our Cooley Alert, which summarizes key portions of the CARES Act: https://www.cooley.com/news/insight/2020/2020-03-29-president-signs-cares-act
SEC provides temporary relief regarding notarization of EDGAR Form ID applications
To address an issue that, as a result of the impact of COVID-19, has impeded some filers from making timely filings on EDGAR, the SEC is providing temporary regulatory relief from the notarization requirement for applications for EDGAR access codes.
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