On Tuesday, the Securities Law Committee of the Society of Corporate Secretaries and Governance Professionals met with officials from the Divisions of Corporation Finance, Investment Management, and Trading and Markets and the Office of the Whistleblower. While neither new Chair Mary Jo White (confirmed in April) nor new Director of Corporation Finance Keith Higgins (starts at the SEC in June) was present at the meeting, the Staff provided some important takeaways. Although the two hour meeting covered a significant amount of issues, the most important discussions involved the following topics:
- The Staff’s focus will be on Congressional mandates. Although the Staff couldn’t give timelines, the remaining provisions from Dodd-Frank and the JOBS Act appear to be the focus of upcoming rulemaking activity. Agenda items such as mandatory disclosure of political contributions, while constantly popping up in the news as imminent, would not fit into the stated focus. The Staff noted that no one was working on rule making requiring the disclosure of political contributions, which is consistent with Chair White’s Congressional testimony last week.
- Issuers continue to have problems with erroneous reports from the proxy advisory firms. The Staff noted that they continue to receive complaints from issuers specifically regarding errors, difficulty speaking to the correct person at ISS and Glass Lewis, and overlooking key aspects such as an issuer changing its fiscal year. The Staff has met with ISS and Glass Lewis over the past year and has requested that the advisory firms improve their transparency. The Society repeated its concerns with the proxy advisory firms and noted that the issues are acute when dealing with smaller issuers.
- The Office of the Whistleblower is now adequately staffed and deep in implementation mode. While only one award has been made under the program, no imminent changes are expected, despite the musings of a recent New York Times article.
- The Staff did a terrific job in responding to no action requests regarding shareholder proposals. All but 25 requests were responded to in less than 60 days. The Staff is very cognizant of the costs of missing printing deadlines and therefore reminds issuers to alert the Staff of not only print deadlines, but also notice and access deadlines.
- The timeline for the four remaining controversial executive pay provisions of Dodd-Frank remains Continue Reading
Gunster and the Southeastern Chapter of the Society of Corporate Secretaries and Governance Professionals are jointly hosting a complimentary event in Fort Lauderdale, Florida on June 6.
The two-hour program will feature the following speakers:
SEC update: what’s on the mind of the staff … and the new SEC chair?
- Brian V. Breheny, Partner, Skadden, Arps, Slate, Meagher & Flom LLP
- Bob Lamm, Chair of the Securities Law Committee, Society of Corporate Secretaries and Governance Professionals
Hot topics and lessons learned from the 2013 proxy season
- Fred Marquardt, Managing Director, Morrow & Co. LLC
- David E. Shapiro, Partner, Wachtell, Lipton, Rosen & Katz
Sign up to attend the free June 6 event now. Seating is limited.
Please contact either person below with questions:
Jake Amsbary - Chapter President
Society of Corporate Secretaries and Governance Professionals
David Scileppi – Shareholder
In other breaking news that many may have missed, Orbitz Worldwide, Inc. recently reported in its most recent 10-Q that a handful of employees of a Hilton-branded hotel were paid wages via direct deposit into bank accounts maintained with Bank Melli. The obvious question is why is Orbitz reporting on seemingly immaterial activities of a third party private hotel company in its public filings? The answer is because the Iran Threat Reduction and Syria Human Rights Act of 2012 (ITRA) now requires it.
The ITRA recently added new Iran-related disclosure requirements for public reporting companies under new Section 13(r) of the Securities Exchange Act of 1934, which became effective for SEC periodic reports due on or after February 6, 2013. Among other things, public companies are required to disclose in their periodic reports whether they knowingly engaged in (or any of their affiliates knowingly engaged in) certain “Iran-related activities, ” which generally include dealings involving:
- the Iranian government;
- entities owned or controlled by the Iranian government;
- persons designated on the OFAC Specially Designated Nationals (SDN) list as representatives of the Iranian government;
- persons and entities identified on the SDN list as supporters of terrorism or proliferators of weapons of mass destruction;
- financial institutions that facilitated a transaction for any person or on the SDN list whose property is blocked in connection with certain terrorist-related activities; or
- Iranian oil resources.
At first glance, many reporting companies may believe that the new requirements of Section 13(r) would be inapplicable to their business and operations. However, a significant number of public companies are taking a conservative approach with their Iran-related disclosures and are reporting almost anything that is potentially covered by the ITRA. The reason for this conservatism is likely due to two key aspects of the ITRA requirements.
First, Section 13(r) requires reporting of activity of both the issuer and its affiliates. The term “affiliate” is Continue Reading
Public companies are beginning to cautiously adopt social media as a disclosure channel. This area has experienced substantial changes lately as the SEC moved from a posture of threatening action against Netflix’s CEO for a post he made on his personal Facebook page to adopting a more relaxed and expansive position. This was really just facing reality given the widespread and growing use and acceptance of social media as a communications mode, but I give the SEC credit for recognizing this and moving to a more reasonable and realistic position.
As mentioned in my prior blog post, the SEC recently gave some preliminary guidance for the use of social media as a disclosure method. This guidance can be found in this SEC Press Release and in the SEC’s report on its investigation of the Facebook postings made by Netflix’s CEO. While the SEC’s actions didn’t pave the way for widespread disclosure by social media, it at least provided some guidance in this area and gave social media disclosure an initial level of validation and credibility. It was good to see this change in the SEC’s position after it initially took a rather harsh stance on the Netflix CEO’s Facebook post (see my prior blog post). It’s early in this process, but I wanted to see how companies of different sizes and from different industries were handling this process. The announcements of first quarter earnings and quarterly results for many companies seemed like a good opportunity to get a progress report.
It appears that public companies are initially taking a cautious approach to using social media as a disclosure channel. The companies that I examined seemed to be testing the waters by either using or referring to social media as a disclosure method while still utilizing more traditional forms of disclosure. This is understandable and prudent. Companies are moving slowly here due to the lack of direct guidance and the significant potential downside if a mistake is made. As I mentioned in my prior blog post, Regulation FD still applies to disclosure even when social media is being used. Many companies hedged their bets by using social media while also using conventional disclosure methods as this significantly reduces the risk of a Regulation FD or other disclosure problem.
Based on some examples that I saw, both new economy and old economy companies are Continue Reading
This is the fifth part of our Securities Law 101 series. Because capital raising is such a critical function for middle market companies, we designed this series to introduce their management teams to some of the fundamental concepts in securities law. We hope that this series will prevent some of the most common mistakes management teams make. We will periodically publish posts examining different aspects of securities law.
So your company wants to use its stock to buy another company? As we have seen, stock consideration is coming back into vogue. Issuing shares of stock for mergers and acquisitions, however, triggers the need to either register the new shares with the SEC (and possibly state securities regulators) or to find an exemption from the requirements found under Section 5 of the Securities Act of 1933. The presence of these rules can substantially increase the cost of the deal and could even make you consider going public before you thought possible.
For mergers, finding an exemption from registration is not usually an easy task unless the target company is still held largely by the founder. Usually, the target company’s shareholders in the merger are often numerous, from many different states or jurisdictions, and represent a wide range of investor qualifications (accredited, sophisticated, etc.). As such, in many cases, finding a securities exemption is all but impossible. With exemptions off the table, let’s look at how to register stock in a merger.
Stock that is registered in the context of a merger is registered on Form S-4. This form was specifically designed for business combinations and exchange offers. A transaction in which security holders are required to elect to receive new or different securities in exchange for their existing security (so called Rule 145 transactions) would qualify to use Form S-4.
Disclosure under Form S-4 can be quite complex. Generally, Form S-4 requires full disclosure regarding both the acquiring and target companies and, if the post-merger entity will differ materially from the acquiring entity, then full disclosure with respect to the post-merger entity is also required. Form S-4s also include the proxy statement for the shareholder meeting to approve the transaction and, typically, combine this proxy with the prospectus. Form S-4 mandates extensive disclosure of the transaction in the prospectus/proxy statement, including any fairness opinions and a comparison of the rights of the shareholders of the parties to the transaction. Essentially, the disclosures are tailored to the specific transaction and nuances in the deal can create the need for a lot of disclosure. Notably, for some companies, (e.g., 1st United Bancorp, Inc.) Continue Reading
Although you may have missed the fireworks and the parade, we celebrated the one year anniversary of the JOBS Act on April 5th. Of course you wouldn’t have been alone if you missed the big celebration because, unfortunately, despite the initial hype surrounding the JOBS Act, not much has happened. The media has chastised the JOBS Act for not fulfilling its early promise. Most of the innovative provisions of the JOBS Act remain unimplemented by the SEC such as the relaxation of the ban on general solicitation on private offerings, crowd funding, and the improvement to Regulation A. But even Title I (generally referred to as the “IPO on Ramp”), which was effective over a year ago, hasn’t had much effect. In fact, IPOs, according to Jay Ritter at the University of Florida, have actually decreased for the so-called emerging growth companies.
How can this be? While there can be numerous factors for why IPOs continue to remain elusive (costs of regulation and a poor economy are the top factors), other factors such as a rising stock market and pent up demand for IPOs should be compelling companies to go public. Or is it possible that the cost of regulation that has been piled on since the fall of Enron trump everything else?
When Congress passed Title I of the JOBS Act, Congress recognized that public companies have been facing increased burdens for being public. Although the causal relationship was suspect at best, Congress determined that over regulation was responsible for the severe drop off in IPOs from the 1990s through the 2000s. While I might suggest that the dotcom bubble bursting may have played a part in the decrease in IPOs, I would agree that the unrelenting regulation that has come out of Congress over the past decade (Sarbanes-Oxley, Dodd-Frank) as well as rulemaking from the SEC itself (executive compensation disclosures) must have had some effect.
As a reminder, Title I of the JOBS Act, among other things, reduces executive compensation disclosures. Specifically, emerging growth companies (companies with less than $1 billion in revenues) are exempt from holding “Say-on-Pay” and “Say-on-Golden Parachutes” votes, disclosing the two controversial executive compensation pay ratios required under Dodd-Frank, and providing a Compensation Discussion and Analysis (CD&A). Other executive compensation disclosure is also shortened by reducing the number of named executive officers, reducing disclosure from three to two years, and eliminating certain compensation tables. In other words, Title I of the JOBS Act was designed to address over regulation of executive compensation for public companies.
While this was a great start by Congress, companies haven’t taken advantage of Title I because Continue Reading
Since 2007, executive compensation practices of public companies have been at the forefront of activist shareholders’ and shareholder rights groups’ agendas. Mandatory say-on-pay proposals, enhanced executive compensation disclosure, compensation committee and compensation consultant independence rules are just a few of the recent significant changes to the laws and regulations applicable to public companies in the U.S. Moreover, as we reported in prior blogs, some countries have gone as far as making say-on-pay proposals binding on public companies. In fact, just this year, Switzerland amended its constitution to require binding shareholder say-on-pay votes and other executive compensation limitations for its public companies (also check out Broc Romanek’s blog for a collection of articles related to this topic). However, while public company executives have been in the crosshairs, little attention, if any, has been given to compensation of public company directors.
But that may change as a result of certain director pay practices highlighted by a recent NY Times Deal Book article by Steven Davidoff. The article focuses on two current proxy fights involving hedge funds attempting to get their proposed nominees elected to the boards of Hess Corporation and Agrium Inc. In the first case, the nominating hedge fund is proposing to pay a $30,000 bonus to any of its nominees who ultimately win a seat on the Hess board. Additionally, each such nominee would be eligible to earn a performance bonus based on share performance relative to its peer group. Based on the performance award formula, the maximum potential payout could be as much as $9 million if Hess outperforms its peer group by 300% over a three-year measuring period.
The second case is potentially even more lucrative for the director nominees. In addition to a $50,000 bonus each nominee would receive if elected, they would also receive 2.6% of Jana Partners’ net profit based on the stock closing price on September 27, 2012. Director nominees not elected would still receive 1.8% of the net profit during that same period. Considering Jana’s total investment in Agrium is over $1 billion, the earning potential could be significant. However, based on the results of the Agrium annual meeting held on April 9, it appears that none of these Jana nominees were elected to the Agrium board this time around.
These arrangements pose some interesting questions from a corporate governance standpoint. Historically, directors Continue Reading
The SEC tiptoed into the twenty-first century as the agency validated the use of social media sites in certain situations for disclosure of information by publicly traded companies. This social media disclosure is subject to some constraints, but it is a positive move for public companies, shareholders and potential investors who are social media users.
The SEC demonstrated its resistance to the disclosure of information in a social media post at the end of 2012. As I discussed in a prior blog post, the SEC informed Netflix, Inc. and its CEO, Reed Hastings, that it might institute actions against them for violations of Regulation FD in connection with some information that Mr. Hastings had posted on his personal Facebook page. This Facebook post congratulated a Netflix marketing team for achieving a positive performance metric. The post was short and very specific, and it did not contain any other references or information. Netflix did not issue a press release and did not file a Form 8-K or any other disclosure document at that time regarding the information contained in this Facebook post. The company also did not post any information related to Mr. Hastings’ Facebook post on its website or on its corporate Facebook page.
The SEC alleged that Mr. Hastings’ Facebook post may have violated Regulation FD, which generally requires a company to disclose material information to all investors at the same time, so that no investor is disadvantaged by learning about such information later. At the time of the post, Mr. Hastings had over 200,000 Facebook friends. His post was also picked up and published in blogs and news outlets. Mr. Hastings and Netflix expressed the view that the language contained in Mr. Hastings’ post was not selective disclosure because of the wide distribution of this information both through Mr. Hastings’ Facebook network and the republishing of this information by other social media and news outlets. They also took the position that the information disclosed was not material. Netflix eventually disclosed these events and the possible SEC actions in a Form 8-K filed on December 5, 2012, and Mr. Hastings commented on them on his personal Facebook page.
The SEC then conducted an investigation of Mr. Hastings’ actions and their impact on Netflix and its investors. The results of this investigation were made public in Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: Netflix, Inc., and Reed Hastings, Release No. 69279 (April 2, 2013) and a related SEC press release. In a somewhat surprising move, the SEC Continue Reading
So you are set on taking your company private. Well, before you put your plans in motion, there are a lot of risks and potential consequences to consider along with the benefits. At the moment, no one knows this better than Michael Dell, CEO of Dell Inc.
Back in February 2013, Mr. Dell and his financial partner, Silver Lake Management LLC, entered into a merger agreement with Dell that would make Dell a private company. The merger was valued at $13.65 per share, with a deal value of $24.4 billion. The deal would keep CEO Michael Dell and others in his investment group in charge of the company.
The driving force behind the deal is the perceived need to restructure Dell due to fundamental changes in the computer industry. Consumers are focusing more on tablets and smartphones, which is hurting Dell’s core computer business. The thought is that the company needs a couple years to restructure and that being a private company would allow the restructuring to occur without so directly impacting the price of the stock. Since most investors these days have shorter time horizons and less patience for restructuring, this looked like a smart move.
As negotiations progressed and the deal was announced, however, the door was opened for other offers because Dell was in play. This is one of the uncertainties involved with a going private transaction and makes this type of deal more risky. In particular, there is the risk that the initial group loses control of the bidding process and gets out bid.
Here, despite initial thoughts that no other parties would top the Silver Lake bid, two additional bids that are arguably superior have surfaced and make the outcome uncertain. One of these bids is lead by investor Carl Icahn and the other is lead by Blackstone. Both bids were deemed by Dell’s special committee to be potentially Continue Reading
We wanted to thank all of our followers and readers in helping make The Securities Edge so successful. This week marks the second anniversary of our blog (including our run on the Gunster Blog)! Each month we see increasing traffic, which tells us that we must be doing something right, but as always, please give us your feedback. We are always looking for ways to improve. Thanks again and we are looking forward to our third year!