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.
Business Roundtable Publishes Principles of Corporate Governance 2012
Business Roundtable (BRT) today issued its Principles of Corporate Governance 2012, which update its April 2010 principles. The principles were updated to “reflect the new circumstances of Dodd-Frank Wall Street Reform and Consumer Protection Act implementation and the continuing evolution of best practices.” The new Principles of Corporate Governance include important updates in five key areas:
34 Questions Concerning the U.S. IPO Market
On June 19, the Committee on Oversight and Government Reform of the U.S. House of Representatives asked the Securities and Exchange Commission to answer 34 questions concerning the initial public offering market in the United States. The Committee’s inquiry came less than three months after the enactment of the JOBS Act, which, among other things, eased regulatory restrictions on initial public offerings by Emerging Growth Companies.
U.S. Securities and Exchange Commission Adopts Rules Implementing Dodd-Frank Requirements for Listing Standards Applicable to Compensation Committees
The SEC today adopted rules to implement Section 952 of the Dodd-Frank Act, requiring stock exchanges to adopt listing standards that:
- impose independence requirements on compensation committee members,
- authorize compensation committees to retain independent advisers, and
- require compensation committees to assess the independence of any consultant, legal counsel or other adviser that provides advice to the compensation committee, other than in-house counsel.
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.
Risk Factors in IPO Registration Statements of Emerging Growth Companies
Nearly eight weeks after the Jumpstart Our Business Startups Act (“JOBS Act”) was signed into law, the first group of Emerging Growth Companies (each, an “EGC”), as defined in Section 101 of the JOBS Act, have publicly filed registration statements to the SEC that include EGC-specific risk factors. In a May 21, 2012 post on The Corporate Counsel blog, Broc Romanek identified nine such companies:
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.
California Considers Legislation to Repeal its Corporate Long-Arm Statute
California Assemblyman Curt Hagman has introduced a bill in the California legislature that will, if enacted, repeal California’s corporate long-arm statute that imposes provisions of California corporate law on non-California corporations with substantial contacts in California. The bill (AB 2260) was introduced as a “spot bill” (i.e., a placeholder bill that does nothing other than identify a specific statutory provision to be amended) on February 24, 2012, and was substantially amended on March 29, 2012 to provide for the repeal of California Corporations Code Section 2115. For many private companies operating in California that organize as Delaware corporations (generally regarded as a preferred state for incorporating), Section 2115 creates uncertainty at times regarding whether California or Delaware corporate law controls. For example, when a Delaware corporation subject to Section 2115 undertakes to effect a merger, California and Delaware each impose different shareholder consent requirements and have different procedures for non-consenting shareholders to exercise dissenters’ rights, resulting in duplicative and sometimes inconsistent requirements and procedures. Similar to the impetus for the recently enacted JOBS Act, repealing Section 2115 is another example of deregulatory legislation aimed at removing hindrances to growth companies operating in California.