When I first saw this temporary relief from the NYSE, I dismissed it as relief designed to help an overwhelmed Broadridge. The relief temporarily allowed discretionary voting on routine matters even if the proxy materials were transmitted to beneficial owners only 10 days in advance of shareholders’ meetings instead of the required 15 days. I had no idea there might be a tragedy underlying it.
This SEC Order, In the Matter of The Dow Chemical Company, is a great refresher—at Dow’s expense, unfortunately for Dow—on the analysis required to determine whether or not certain expenses and benefits are perquisites or personal benefits that must be disclosed in the Summary Comp Table in the proxy statement. As you probably know, the analysis for determining whether an item is a disclosable “perk” can be very tricky to apply, especially when it involves the use of corporate jets by executives and their friends and families. The SEC claims that Dow applied the wrong standard altogether in its analysis, failing to disclose over a five-year period $3M in CEO perks and understating the CEO’s disclosed perks by an average of 59%. Dow settled the charges for a fine of $1.75M and also undertook to engage an independent consultant that would perform a review of Dow’s policies, procedures and controls and conduct training related to the determination of perks.
For quite a while, the CDIs related to the proxy rules and proxy statements have been a bit of a hodge-podge of different sources and supplements. There were even interpretations extant from the ancient Telephone Interpretations Manual—you may even have a mimeograph copy of that in your office somewhere. Now, Corp Fin has undertaken to update and harmonize some of those proxy-related interpretations, specifically the basic Interpretations Manual and its March 1999 Supplement. The rest of the supplements remain undisturbed for the moment; however, Corp Fin advises that it is in the process of updating them all.
SEC approves amendments to NYSE Manual largely eliminating requirement to deliver to NYSE hard copies of proxy materials
On March 1, the SEC approved the NYSE’s proposal to largely eliminate the requirement to provide hard copies of proxy materials to the NYSE. Prior to approval of the amendment, listed companies were required to provide hard copies of proxy materials to the NYSE under Section 204.00(B) and Section 402.01 of the NYSE Manual. Notwithstanding the requirements of Rule 14a-6(b) to deliver hard copies to the applicable exchange (from which the NYSE has obtained no-action relief), the amendment to Section 402.01 provides that listed companies will not be required to provide hard copies of proxy materials to the NYSE, so long as they are included in their entirety in an SEC filing available on EDGAR.
Is it just me? Am I the only one that finds having to decipher a load of graphics in a proxy statement to be somewhat daunting on occasion? Inclusion of graphics in lieu of copious text has been almost de rigueur in proxy statements for several seasons now as a way to facilitate comprehension of sometimes complex data. And most often, those graphics are relatively effective for that purpose. As we head into the 2018 proxy season, however, this piece in CFO.com suggests that some forms of visual presentation may be, well, a lot more useful than others.
Assessing impact of major tax law change, if enacted, on financial statements on a timely basis would present huge challenge
The potential passage of the new tax bill is giving some finance departments conniptions, according to Bloomberg BNA, and they’re hoping that the SEC will address the problem. The SEC? Yes. While companies are happy to see the tax breaks, some companies, especially large multinational companies, are anxious about whether they will be able to accurately determine the impact of the tax changes on their financial statements in time to file their annual and quarterly reports with the SEC. The obvious concern is that, if the SEC doesn’t extend the filing deadline, companies could risk making material misstatements.
PwC’s 2017 Annual Corporate Directors Survey shows directors “clearly out of step” with institutional investors on social issues
In its Annual Corporate Directors Survey for 2017, PwC surveyed 886 directors of public companies and concluded that there is a “real divide” between directors and institutional investors (which own 70% of U.S. public company stocks) on several issues. More recently, PwC observes, public companies have been placed in the unusual position of being called upon to tackle some of society’s ills: in light of the “new administration in Washington and growing social divisiveness, US public company directors are faced with great expectations from investors and the public. Perhaps now more than ever, public companies are being asked to take the lead in addressing some of society’s most difficult problems. From seeking action on climate change to advancing diversity, stakeholder expectations are increasing and many companies are responding.” But apparently, many boards are not taking up that challenge; PwC’s “research shows that directors are clearly out of step with investor priorities in some critical areas,” such as environmental issues, board gender diversity and social issues, such as income inequality and employee retirement security.
by Cydney Posner According to the WSJ, 2016 saw the biggest gap since 2009 between non-GAAP pro forma results and GAAP results. But non-GAAP measures are not just proliferating in earnings releases, they are also proliferating in proxy statements. The WSJ article reports that, according to Audit Analytics, the term […]
CII petitions SEC for staff guidance on the proxy rules and an amendment to Item 5.07 of Form 8-K regarding voting results
by Cydney Posner Earlier this month, the Council of Institutional Investors filed a petition with the SEC requesting interpretive guidance regarding the proxy rules and rulemaking in connection with Form 8-K. More specifically, CII requested the following: Staff guidance regarding proxy statement disclosure of voting requirements for items on the ballot […]