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Proxy Season Guide to 2016 re: Corporations and Securities

With the close of another year quickly approaching, it is time again for public companies to get equipped with the developments of the past year to position themselves for success in 2016. A review of the 2015 proxy season and a summary of the current and anticipated changes to disclosure regulations for the 2016 proxy season are below. 

2015 IN REVIEW

During the 2015 proxy season, proxy access gained significant attention. The SEC’s 2010 proxy access rule, Rule 14a-11, provided that a shareholder was eligible to nominate proxy access candidates if the shareholder held at least 3 percent of the voting power for at least three years and was not prohibited from proposing a candidate under law or the company’s governing documents. Although this rule was struck down in 2011, many shareholder proposals are still based on both it and the SEC’s amendments to Rule 14a-8. Overall in 2015, there was a significant increase in shareholder proposals seeking proxy access. For example, companies such as Goldman Sachs, McDonald’s, Coca Cola, and most recently Apple have adopted proxy access.

Executive compensation issues were also a central theme in 2015. In general, companies received shareholder and proxy advisor approval for their pay practices during 2015. Additionally, there were fewer instances of multi-year failed Say-on-Pay votes in 2015 compared to 2014.

The comment periods have expired for proposed changes in pay-for-performance, hedging disclosure, and clawbacks; however, the SEC has not finalized the changes. Similarly, the comment period has expired for proposed changes regarding audit committee reporting requirements, but the changes have yet to be finalized. At this time, there is no anticipated date for implementation of these policies. 

NEW FOR 2016

CEO Pay Ratio Disclosure Rules

In August 2015, the SEC adopted its long-anticipated final rule implementing Section 953(b) of Dodd-Frank, which requires public companies to disclose the pay ratio between their CEO’s annual total compensation and the annual total compensation of the companies’ “median” employee. With the exception of smaller reporting companies, emerging growth companies, foreign private issuers, and registered investment companies, all reporting companies will have to disclosure their pay ratio. The pay ratio disclosure must be included in any filing that requires executive compensation disclosure under Item 402 of Regulation S-K, which includes registration statements, proxy and information statements, and annual reports on Form 10-K.

Companies will need to comply with the new rule for the first fiscal year beginning on or after January 1, 2017. While this does not directly impact the 2016 proxy season, companies subject to the new rule will need to be proactive in evaluating and anticipating how to comply with the new and potentially burdensome disclosure requirements. The Final Pay Ratio Disclosure Rule is available here.

Rule 14a-8 and Conflicting Shareholder Proposals

In October 2015, the SEC released Staff Legal Bulletin No. 14H, which set forth the SEC’s updated guidance regarding the scope and application of Rule 14a-8(i)(9). Until the 2015 proxy season, companies were able to exclude shareholder proposals by submitting conflicting management proposals. Under the new guidance, a company cannot exclude a shareholder proposal based on Rule 14a-8(i)(9) unless the shareholder proposal “directly conflicts” with the management proposal. A shareholder proposal will not be viewed as directly conflicting with a management proposal if a reasonable shareholder could logically vote for both. Going forward, the new guidance will make it more difficult for companies to exclude certain shareholder proposals from their proxy statements. The Staff Legal Bulletin No. 14H, setting forth the guidance and specific examples, is available here.

Supreme Court Declined to Hear Newman Case

In October 2015, the U.S. Supreme Court declined to hear a petition for writ of certiorari filed by the Department of Justice in United States v. Newman. In Newman, the Second Circuit Court of Appeals dismissed indictments against two defendants accused of insider trading, holding that the government must prove a tippee knew that an insider received a personal benefit in exchange for disclosing confidential information, and that a benefit received must be sufficiently consequential.

This decision, and the fact that the U.S. Supreme Court let it stand, is significant in a number of ways. The decision raised the bar for what constitutes a personal benefit, noting that it must be more than mere friendship. Additionally, the Second Circuit is influential in securities law cases; therefore, Newman will likely influence insider trading cases in other circuits as well. The effects of Newman are already apparent—the government has dropped charges against a number of people accused of insider trading, thus demonstrating Newman’s influence. The full Newman decision can be found here.

Rules to Permit Crowdfunding

In October 2015, the SEC adopted final rules permitting private companies to raise up to $1 million per year through crowdfunding. While the new rules make it easier for startups and small businesses to raise capital from a wide range of potential investors, it also places a number of limitations and compliance requirements on companies looking to take advantage of it. For example, there are investment limits, required disclosures by issuers, and a requirement to use regulated intermediaries. The new rules will be effective on May 16, 2016, but forms for registration of funding portals will be effective in January 2016. Regulation Crowdfunding is available here.

A Brief Look at Other Updates for 2016

    Recommendation Regarding “4(1½) Exemption.” The SEC Advisory Committee on 
    Small and Emerging Companies recently recommended that the SEC formalize a 
    Section 4(1½) transaction exemption for resales of privately issued securities that
    otherwise would not qualify under the Rule 144 safe harbor.

    Opposition to Administrative Proceedings. Several actions have been filed seeking 
    to block the SEC’s use of administrative proceedings, raising a number of fairness 
    and constitutional challenges. While most actions have been unsuccessful, the use
    of administrative proceedings will likely stay in the spotlight so long as questions 
    as to the impartiality of the proceedings remain.

    Resource Extraction Disclosures. The SEC recently complied with a court order to 
    file an expedited schedule for promulgating final rules regarding the disclosure of
    payments by resource extraction issuers, calling for a vote on the final rules by 
    June 27, 2016. 

    Conflict Mineral Rules. In 2015, the conflict minerals disclosure rules were again 
    found unconstitutional; however, it is likely the SEC will appeal the decision to 
    the U.S. Supreme Court. This means that issuers will not have revised conflict 
    minerals rules available when preparing their 2016 Form SD filings. For now, 
    the trend is for issuers to generally follow a 2014 Staff compliance guide by 
    avoiding any specific reference to a label or conclusion. 

PROXY ADVISORY FIRM UPDATES

Glass Lewis Updates

Glass, Lewis & Co. (Glass Lewis) recently published its 2016 Proxy Season Guidelines. The guidelines include a number of changes, a summary of which is outlined below. 

    Conflicting Management and Shareholder Proposals. As discussed above, in October 
    2015, the Staff issued a new standard for determining whether a company can 
    exclude a shareholder proposal based on the fact that it conflicts with another
    proposal under Rule 14a-8(i)(9). Glass Lewis revised its guidelines to outline the 
    the factors it will evaluate when deciding whether to support conflicting management
    and shareholder proposals. 

    Exclusive Forum Provisions. Glass Lewis will no longer recommend that 
    shareholders vote against the chairman of the nominating and governance
    committee based solely on an exclusive forum bylaw being adopted in connection
    with an IPO. Instead, Glass Lewis will weigh the presence of an exclusive forum
    provision in a newly-public company’s bylaws in conjunction with other provisions
    that limit shareholder rights such as supermajority vote requirements, classified
    boards, and fee-shifting bylaws.  

    Director Overboarding. In 2016, Glass Lewis will review director board commitments
    to determine when a board member serves on too many boards. During the 2016
    transition period, Glass Lewis’ recommendations will remain at the existing 
    thresholds of three total boards for a director who serves as an executive of a public
    company, and six total boards for directors who are not public company executives. 
    Beginning in 2017, Glass Lewis recommends changing the threshold to two and five 
    total boards, respectively. 

In its update, Glass Lewis also addressed environmental and social risk oversight, nominating committee performance, and compensation updates.

A copy of the full Glass Lewis Proxy Season Guidelines is available at the Glass Lewis website.

ISS Updates

Institutional Shareholder Services (ISS) also updated its proxy voting policy guidelines for 2016, which will affect shareholder meetings that take place after February 1, 2016. The guidelines set forth a number of updates, which are summarized below. 

    Director Overboarding. Similar to Glass Lewis, ISS also updated its policy regarding 
    director overboarding, reducing the threshold for overboarding from six to five 
    boards for directors who are not company executives. The overboarding changes 
    will go into effect in February of 2017, which gives companies a one-year grace 
    period to determine how to address potential problems. Unlike Glass Lewis, ISS did
    not change its policy for overboarding of company executives, and the threshold will 
    remain at three total boards. 

    Unilateral Governance Changes. For newly public companies, ISS will generally 
    recommend against directors who have unilaterally adopted charter or bylaw 
    amendments that are adverse to the rights of shareholders prior to or in connection
    with an IPO; however, it will be determined on a case-by-case basis. 

    Compensation of Externally Managed Issuers. The new “Problematic Pay Practices” 
    policy provides that an externally managed issuer’s failure to provide sufficient
    disclosure for shareholders to reasonably assess the compensation made to 
    executive officers will be deemed a problematic pay practice, and will typically
    result in a recommendation to vote against an issuer’s say-on-pay proposal.

Additionally, ISS addressed changes to contested director elections, policies requiring senior executives to hold shares through retirement, and environmental and social issues.

A copy of the full ISS 2016 Proxy Voting Guidelines is available here. 

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About this Author

Susan B. Zaunbrecher, Dinsmore Shohl, Acquisitions and Securities Lawyer,
Partner

Susan B. Zaunbrecher is Chair of the Corporate Department and Chair of the Financial Institutions Practice Group. Susan is a member of the firm's Board of Directors. She is the founder, former chair and now member of the firm's Professional Development Committee and Leadership Academy and founder and member of the...

513-977-8171
Emily C. Rotella, Dinsmore, Transactional matters Lawyer, General business Counsel Attorney,
Associate

Emily is a member of the Corporate Department, focusing on transactions and general business counsel.

Prior to joining Dinsmore, she served as a judicial extern for Magistrate Judge Norah McCann King in the U.S. District Court for the Southern District of Ohio, as well as serving as a research intern with the National Defense University at the Center for Strategic Research in Washington, D.C. She also served as an intern with the U.S. Attorney for the Southern District of Ohio. 

(513) 977-8335