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A few weeks ago, I attended the “spring” meeting of the Council of Institutional Investors in Washington (the quotation marks signifying that it didn’t feel like spring – in fact, it snowed one evening).  These meetings are always interesting, in part because over the 15+ years that I’ve been attending CII meetings, their tone has changed from general hostility towards the issuer community to a more selective approach and a general appreciation of engagement.

So what’s on the mind of our institutional owners?  First, an overriding concern with capital structures that limit or eliminate voting rights of “common” shareholders.  CII’s official position is that such structures should be subject to mandatory sunset provisions; that position strikes me as reasonable (particularly as opposed to seeking their outright ban), but it’s too soon to tell whether it will gain traction.

Continue Reading News from the front

It may be nice to be your own boss, but setting your own compensation – and, at least arguably, giving yourself excessive pay – may get you in trouble.  A number of boards of directors have found that out, as courts have given them judicial whacks upside the head for paying themselves too much.  Not surprisingly, shareholders have gotten on the bandwagon as well.

Executive compensation – at least for public companies – has to be scrutinized and blessed by independent directors and, since the advent of Say on Pay, approved by shareholders (albeit on a non-binding basis).  In contrast, directors have long set their own pay, with little or no scrutiny and no requirement for independent review, much less approval.  (Director plans generally must get shareholder approval if they provide for equity grants, but neither the overall director compensation program nor specific awards have to be approved.) Continue Reading Pigs and hogs — a note on director compensation

Yes, it’s that time of year again.  Turkey, Black Friday, decking the halls, office parties, and the annual issuance of ISS’s voting policies for the coming year.

To make sure I’m on Santa’s good list, I need to be honest – and, to be honest, the 2018 changes seem rather benign.  In fact, as noted below, ISS hasn’t gone as far as some of its mainstream members in terms of encouraging board diversity and sustainability initiatives.

Here’s a quick rundown on the key changes for 2018:

  • Director Compensation: Director compensation – or at least excessive director compensation – has been looming ever larger as a hot topic in governance.  ISS continues the trend by determining that a two-consecutive-year pattern of excessive director pay will result in an against or withhold vote for directors absent a “compelling” rationale.  Since the policy contemplates a two-year pattern, there will be no negative voting recommendations on this matter until 2019.

Continue Reading Tis the season

The still relatively new SEC Chair, Jay Clayton, has let it be known that one of his missions is to improve the health of our IPO market and, thereby, to improve our capital markets generally.  His minions – including a senior SEC Staff member I recently heard in Washington – have been spreading this gospel according to Jay.

I wish him (and them) luck, but I wonder if the mission is impossible.  I’m thinking of some recent articles, including one by the inimitable Andrew Ross Sorkin entitled “Fixing the ‘Brain Damage’ Caused by the I.P.O. Process”, that makes the resuscitation of IPOs seem unlikely.  As if the title weren’t off-putting enough, one of the executives quoted in the article described his company’s IPO process as “a way of living in hell without dying”.  Not a good start.

Continue Reading Can the US IPO market be brought back from the dead?

 

Photo by Jeffrey Beall

Last year, Congress required the SEC to review the public company disclosure requirements in Regulation S-K and make detailed recommendations as to how those rules might be changed to modernize and simplify the requirements while still requiring disclosure of all material information. The ultimate goal was to reduce burdens on public companies while improving readability and navigation of public company filings, including through reducing repetition in such filings. On November 23, 2016, the SEC released its initial recommendations in a report (the “2016 Report”). The 2016 Report which served as the basis for proposed rules, which were set forth in a 253 page rules release on October 11, 2017. While the proposed rules largely implement the recommendations from the 2016 Report, the proposed rules deviated in certain respects from the recommendations in the 2016 Report. Specifically, the release contains proposed changes to the following provisions under Regulation S-K:

  • Description of Property (Item 102);
  • Management’s Discussion and Analysis (Item 303);
  • Directors, Executive Officers, Promoters, and Control Persons (Item 401);
  • Compliance with Section 16(a) of the Exchange Act (Item 405);
  • Outside Front Cover Page of the Prospectus (Item 501(b));
  • Risk Factors (Item 503(c));
  • Plan of Distribution (Item 508);
  • Material Contracts (Item 601(b)(10)); and
  • Various rules related to incorporation by reference.

Additionally, Some of the proposed amendments would require additional disclosure or incorporation of new technology. These include proposed changes to:

  • Outside Front Cover Page of the Prospectus (Item 501(b)(4));
  • Description of Registrant’s Securities (Item 601(b)(4));
  • Subsidiaries of the Registrant (Item 601(b)(21)(i)); and
  • Various regulations and forms to require all of the information on the cover pages of some Exchange Act forms to be tagged in Inline XBRL format.

While somewhat underwhelming with regard to the actual relief provided, the proposed changes are certainly a step in the right direction for improving the disclosure requirements for public companies. Nevertheless, the proposals seem to be relatively minor in nature and won’t likely do much for public companies as far as reducing their disclosure burdens. Below is a summary description of the material changes proposed in the release: Continue Reading SEC’s Attempt to Modernize and Streamline Disclosures for Public Companies Falls Short

 

With Chair Jay Clayton and Corp Fin Director Bill Hinman now in office for several months, the SEC seems to be gaining traction in a number of areas of interest to
public companies.

Pay Ratio Disclosures

As we noted in a Gunster E-Alert, on September 21, the SEC issued interpretations to assist companies in preparing the pay ratio disclosures called for under Item 402(u) of Regulation S-K.  The consensus (with which we agree) is that the interpretations will make it much easier for companies to prepare their ratios and related disclosures and hopefully to reduce litigation exposure associated with those disclosures.

Continue Reading Your tax dollars at work (at the SEC)

Some of you may remember Christopher Cox, who served as SEC Chair from 2005 to early 2009, when he was succeeded by Mary Schapiro.  His name doesn’t come up often, perhaps because his legacy was a weakened Commission tarnished by, among other things, the financial crisis and the Madoff scandal.

While Chairman Cox may not have been responsible for either of those debacles, he did leave another unpleasant legacy – XBRL.  He was among the biggest cheerleaders for XBRL, claiming that it would enable investors to compare companies within and across industries and would perform various other miracles.  Suffice it to say it hasn’t done that.  Aside from the fact that it’s time-consuming, it has failed to provide the benefits of comparability.  As a client recently said,

“[E]ven if two companies use the same taxonomy/tagging for Cost of Sales, they probably are not consistent in the underlying details that go into Cost of Sales.  One company might classify certain components as G&A instead.  There are many other examples.  Consistency is very important for one company’s reporting from period to period, however comparisons of competitors’ financials will always be approximations at best.”

Continue Reading RIP XBRL?

The young ones among you may not be familiar with Harvey Pitt, but he is an incredibly smart man and a gifted attorney who chaired the SEC some years back.  He made some political gaffes in that role, but that doesn’t diminish his understanding of the securities laws and how disclosure works.

A few weeks ago, he was quoted in The Wall Street Journal on the subject of disclosure (“Harvey Pitt Envisions a New Form of Corporate Disclosure”).  Specifically, he points out that “[d]isclosure is supposed to be for the purpose of informing…but…it’s become for the purpose of providing a defense”.  He also says “…when you have proxy statements that run hundreds of pages…it’s impossible to expect any normal individual to put in the time to read all of those pages”.  As I said, he’s an incredibly smart man.

So what is his solution?  He suggests a “summary disclosure document the way disclosure used to be” – say five or six pages – and that more detailed information be available by hyperlink for the investors who want to dig deep.  At the same time, companies could track how many people actually make that deep dive and make judgments as to eliminating information that no one seems interested in.

Continue Reading On the subject of effective disclosure…

back-to-school-954572_1280My last post was a re-posting of Adam Epstein’s great piece on the importance of the proxy statement.  I promised that I would follow up on Adam’s thoughts with some recommendations of my own.  Here goes.

General

  • Manage your proxy statement “real estate” to maximize user-friendliness and create an optimal flow: Think about where things go.  For example, if your company is owned largely by institutions (and perhaps even if it’s not), should you lead off with an endless Q&A about the annual meeting and voting, discussing such exciting topics as the difference between record and beneficial ownership and how to change your vote?  Some of it is required, but consider taking out what’s not required and moving what is required to the back of the book.
  • Use executive summaries: Investors like them, and even the SEC has more or less endorsed their use. Think of it this way – whatever you think of ISS, it does a great job of summarizing your key disclosures, albeit not with your company’s best interests in mind.  Why pass up an opportunity to convey your key disclosures with those interests in mind?

Continue Reading Required reading (Part 2)

board-1848717_1280Those of you who know me have probably heard me sing the praises of Adam Epstein.  Adam was trained as a lawyer, has been an investor, and now advises small-cap companies on matters like board composition and disclosure.  IMHO, Adam is brilliant, and his insights need to be read, absorbed and acted on.

Adam has given me permission to copy one of his recent writings here.  It was originally posted on NASDAQ MarketINSITE.  His writing addresses how important it is for small-caps to get their proxy disclosures right.  My only quibble with it is that it’s not only true for small-caps; it’s equally true for any company that seeks to get favorable votes from institutional investors.  On the subject of singing (see above), I’ve been singing this song for a long time to minimal effect, but I’m hopeful that great advocacy from people like Adam will once again prove that justice delayed isn’t always justice denied.  By the way – Adam has written a book on the importance to small companies of getting the right board members.  I don’t often read books of that type, but Adam’s is a gem.

Here’s the posting:

Considering that 78 percent of activist campaigns were waged in companies with market capitalizations below $2 billion in 2016 (according to Activist Insight), it’s incumbent upon small-cap companies to communicate clearly about issues investors care most about. Notwithstanding the fact that proxy statements address many of those issues (e.g., board composition, compensation, etc.), too many small-cap boards outsource responsibility for drafting and refining proxy statements. That’s a mistake.

Consider a few suggestions in this regard from a buy-side perspective.

Board composition. Proxies provide an invaluable opportunity for companies to clearly answer a top-of-mind concern for seasoned investors: does a company have fulsome, objective, value-added governance, or is its board primarily composed of the CEO’s friends (i.e., oversight “lite”)? The most effective proxies set forth how the backgrounds of each board member map to a company’s key strategic imperatives, key enterprise risks, and key stakeholders and customers. An inability to succinctly explain why a company has the right people in the boardroom should serve as a warning to the board that it might be time to refresh its directors.

Compensation. Most small-cap investors aren’t compensation consultants or human resource experts; it’s unwise to draft a Compensation Discussion and Analysis (CD&A) as if they were. Investors principally want to understand how officer and director compensation is aligned with strategic value drivers, particularly for companies that are performing poorly and/or compensating richly when compared to peers. Rather than just repeating last year’s CD&A, boards should spend time each year simplifying and clarifying key investor takeaways.

Storytelling. A proxy statement is a legal document, but great proxies tell a cohesive story about: (1) a company’s values, strategic imperatives and ownership; (2) who the company is run and governed by; and (3) how and why officers and directors are appropriately compensated (among other things). Why would a company expend material time and money perfecting its storytelling to customers, and then outsource a great chance to communicate directly with investors to service providers who can’t possibly know the story as well as those inside the company?

Plain English. When proxy statements are formulaic and lawyerly, savvy small-cap investors often think two things: (1) the company doesn’t value the opportunity to communicate transparently with shareholders; and/or (2) the company is trying to hide something. Most small-cap investors aren’t lawyers, and few captivating tales have ever been written in “legalese.” So if your proxy statement doesn’t tell a compelling story that virtually any investor can understand… consider starting over again.

In addition to selling goods and services, public companies also sell stock. And whether it’s to passive, active, current, or prospective investors, it’s hard to successfully sell stock when investors don’t sufficiently understand what they’re buying.

Thanks, Adam (and NASDAQ MarketINSITE).  I’ll be writing a bit more on this topic in the coming weeks.