On June 20, 2012, British Deputy Prime Minister Nick Clegg announced at the United Nations Rio+20 Summit that the UK will become the first country to require emissions data disclosure in companies’ annual directors’ reports. Pursuant to regulations to be made under the UK’s Climate Change Act 2008, which must come into force by April 2013, all UK “quoted companies” will be required to report their greenhouse gas emissions. (Quoted companies generally are UK companies whose equity share capital is included in the Official List, officially listed in an European Economic Area (EEA), or admitted to dealing on either the NYSE or NASDAQ.) In 2016, the British government will determine whether to extend this requirement to all large UK companies, including private companies.
Securities Regulation
Division of Corporation Finance Permits Notice and Access in Certain M&A Transactions
The Division of Corporation Finance of the Securities and Exchange Commission recently issued a letter that for the first time granted no-action relief for the use of notice and access for a proxy statement in a M&A transaction. The no-action letter, SAIC, Inc. (avail. Apr. 27, 2012), involved the upcoming merger of a holding company into its operating subsidiary to eliminate the holding-company structure. The Division has routinely granted no-action relief from various securities law provisions in similar circumstances. For example, the Division has routinely permitted a post-merger company to take into account the pre-merger company’s SEC reporting history in determining its eligibility to use Form S-3.
NYSE Proxy Fee Advisory Committee Releases Report on Proxy Distribution Fees
On May 16, the Proxy Fee Advisory Committee, formed by the New York Stock Exchange in September 2010 to review the fee structure for proxy distribution fees, released its report and recommendations for changes to the fees banks and brokers charge public companies for forwarding proxy materials to shareholders who hold stock in “street name.” The Committee, which includes issuers, broker-dealers and investors, recommended changes to increase the transparency of the fee structure and streamline proxy fees into three basic categories: a nominee fee, a processing fee and a preference management fee (akin to the former “incentive fee”). The Committee’s recommendations also replace the large/small issuer distinction with respect to processing fees with a more gradual tiered fee structure, reduce the fees charged in connection with managed accounts by half, and subject notice and access fees to regulation under the proxy fee structure. The Committee estimates that its recommendations will result in a 4% decrease in the overall proxy distribution fees paid by public companies.
Conflict Minerals: House Holds Hearing on Costs and Consequences of Dodd-Frank Conflict Minerals Rules
On May 10, the International Monetary Policy and Trade Subcommittee of the House Committee on Financial Services held a hearing to address the costs and consequences of Dodd-Frank Section 1502, which requires the SEC to issue conflict minerals disclosure rules. The subcommittee, chaired by Rep. Gary Miller (R-Calif.), examined whether Section 1502 may impose substantial compliance costs on U.S. companies while failing to serve its intended purpose of curbing militia violence in the Democratic Republic of Congo. Led by Chairman Miller, some congressmen expressed concern that Section 1502 has resulted in a de facto embargo on conflict minerals from the Congo, as companies increasingly source minerals from other regions to avoid the disclosure obligations of Section 1502. Others, including Rep. Gwen Moore (D-Wis.) and Rep. David Scott (D-Ga.), asserted that, as long as U.S. companies and consumers are funding violence in the Congo, the U.S. must take action to address the crisis in the region. The witnesses were similarly divided on these issues. Mvemba Dizolele, a visiting fellow at Stanford University’s Hoover Institution, and Dr. Laura Seay, an assistant professor of political science at Morehouse College, indicated that Section 1502 does not address the sources of militia funding or the causes of the conflict, while Bishop Nicolas Djomo Lola, a Catholic bishop from the Congo, stated that mining is the primary source of funding for the militias. In addition, Frank Vargo of the National Association of Manufacturers, Stephen Lamar of the American Apparel & Footware Association, and Steve Pudles, Chairman of the Board of IPC – Association Connecting Electronics Industries and CEO of Spectral Response LLC, testified about the high costs of implementation of the conflict minerals rules by U.S. companies. They urged that the rules include a phase-in period, flexibility in the due diligence process, and a temporary, “indeterminate origin” category of conflict minerals that issuers may use while the infrastructure necessary to trace conflict minerals supply chains is under development. While an SEC representative did not testify at the hearing, SEC Chairman Schapiro last indicated, in early March, that the SEC expects to issue its final conflict minerals rules by the middle of the year.
Private Placement of Publicly Traded Equity Securities as Consideration in an M&A Transaction after the JOBS Act
An issuer with equity securities that are publicly traded often seeks to use its equity securities as consideration in an acquisition of another business. If the target business is privately held, the acquirer may seek to privately place the equity securities with the owners of the target rather than registering the securities due to the lead-time required for the registration process or for other reasons. The following discussion addresses many of the securities law issues that public companies should consider when using privately placed equity as acquisition currency, including a discussion of upcoming changes in the private placement landscape precipitated by the Jumpstart Our Business Startups Act (“JOBS Act”), signed into law by President Obama on April 5, 2012.
Division of Corporation Finance Announces Temporary Procedure for Confidential Submission of Draft Registration Statements
On April 5, 2012, shortly after President Obama signed the Jumpstart Our Business Startups (JOBS) Act into law, the Division of Corporation Finance of the Securities and Exchange Commission announced the procedure that an Emerging Growth Company (EGC) should follow for the confidential submission of its draft registration statement, as permitted under Sec. 106(a) of the JOBS Act, until the Division implements a system for electronic submission. An EGC should submit one copy of its draft registration statement in a text searchable PDF file on CD/DVD or, alternatively, submit it in paper (without staples or binding), together with a transmittal letter in which the company confirms its EGC status, to:
Jumpstart Our Business Startups (JOBS) Act Changes the Public and Private Capital Markets Landscape
On March 27, 2012, the House passed the Jumpstart Our Business Startups Act (“JOBS Act”), as amended and passed by the Senate on March 22. It is widely anticipated that President Obama will quickly sign the JOBS Act into law.
U.S. House Passes Bill Reforming IPO Process for Smaller Companies
On March 8, 2011, the House of Representatives approved the JOBS (Jumpstart Our Business Startups) Act by a vote of 390 to 23. The JOBS Act is a package of six bills aimed at reviving the market for initial public offerings and other financing options for smaller companies by easing the rules governing capital formation in an effort to encourage private-sector job creation.
SEC Staff Grants No-Action Letter Excluding Proxy Access Shareholder Proposal
In a significant decision, the staff of the Securities and Exchange Commission today issued a no-action letter concurring that a proxy access shareholder proposal could be excluded from a company’s proxy materials under Rule 14a‑8. The proposal, submitted to Textron Inc. by John Chevedden on behalf of Kenneth Steiner, requested adoption of a bylaw amendment permitting shareholders to include in the company’s proxy materials director candidates nominated by any shareholder(s) that had continuously held one percent of the company’s voting securities for two years or by any group of shareholders “of whom one hundred or more satisfy SEC Rule 14a‑8(b) eligibility requirements.
Final SEC Conflict Minerals Rules Delayed
Contrary to the expectations of many that the SEC would imminently release its final conflict minerals rules, on March 6, 2012, at a hearing before the House Committee on Appropriations on the SEC fiscal year 2013 budget request, SEC Chairman Schapiro indicated that the rules will not be adopted until “the middle of the year.” Schapiro stated that the SEC needs “the next couple of months” to complete the rules as the conflict minerals rulemaking is “so complex” and “so out of the ordinary for the SEC.