Perk Disclosures: Reminders for Executives and Directors

Jun 10, 2017

On June 10, 2017, the Harvard Law School Forum on Corporate Governance and Financial Regulation published on article on the settlement MDC Partners’ made with the SEC related to two sets of federal securities laws violations. In addition to the compensation disclosure failures and the absence of appropriate internal controls, the SEC found that MDC violated the disclosure requirements for non-GAAP measures.

The article notes that there are important lessons for companies and their directors and officers from this SEC enforcement, including:

  • Recognize Auditor’s Responsibilities Relating to Executive Compensation Disclosure under AS 18: Executive compensation is not a matter for internal audit alone. Auditing Standard No. 18 requires auditors to perform specific procedures to obtain an understanding of the company’s financial relationships and transactions with its executive officers, including with respect to compensation.
  • Carefully Prepare Responses to D&O Questionnaires
  • The Determination of a “Perk” May Require Analysis of the Facts and Circumstances
  • Remember that the CEO and CFO Certifications in Form 10-K Also Cover the Executive Compensation Disclosures in the Proxy Statement
  • Maintain Internal Control Procedures and Compliance Relating to Compensation and Expenses

Review the article on the Harvard Law School Forum's website.

President Trump nominates new SEC commissioner

Jul 18, 2017

On July 18, 2017, Pres­i­dent Donald Trump an­nounced the nom­i­na­tion of Hester Maria Peirce as SEC com­mis­sioner for the remainder of a five-year term expiring June 5, 2020.

Ms. Peirce is cur­rently a senior re­search fellow and di­rec­tor of the fi­nan­cial markets working group at the Mer­ca­tus Center at George Mason Uni­ver­sity. Pres­i­dent Barack Obama nom­i­nated Ms. Peirce for the po­si­tion last year; however, the Senate did not have a hearing on her nom­i­na­tion.

For more in­for­ma­tion, see the press release on the White House’s Web site.


Publication of a CSA Multilateral Staff Notice regarding the filing of the report by the auditor required by National Instrument 81-102 Investment Funds

Jun 08, 2017

On June 8, 2017, the securities regulatory authorities in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Prince Edward Island, Québec, Saskatchewan and Yukon (the Participating Jurisdictions) published CSA Multilateral Staff Notice 81-328 "Report by the Auditor in the Form Contained Respectively in Appendix B-1, B-2 or B-3 of National Instrument 81-102 Investment Funds" regarding the requirement prescribed by paragraphs 12.1(1)(b), 12.1(2)(b) and 12.1(3)(b) of National Instrument 81-102 "Investment Funds" (NI 81-102).

The notice highlights the fact that, because of amendments to Canadian generally accepted auditing standards (the GAAS) in the “General Assurance and Auditing” section of “Other Canadian Standards” of the CPA Canada Handbook - Assurance, a report by the auditor filed in the form contained respectively in Appendix B-1, B-2 or B-3 of NI 81-102 (each, the Form Contained in NI 81-102) will not comply with Canadian GAAS for a report by the auditor dated on or after June 30, 2017.

Thus, the Participating Jurisdictions are publishing the notice to announce that they expect a report by the auditor dated on or after June 30, 2017 to comply with Canadian GAAS instead of the Form Contained in NI 81-102.

Some Participating Jurisdictions will issue a blanket order by June 30, 2017 to address the amendments to Canadian GAAS with regard to the current requirements in securities legislation.

Review the press release and the notice on the CSA's website.

Québec Court of Appeal Rejects Several Aspects of Pan-Canadian Securities Regime

May 10, 2017

On May 10, 2017, the Québec Court of Appeal (the "Court of Appeal") ruled that the plan to implement a new regulatory regime for a pan-Canadian securities regime is unconstitutional in several respects.

The decision was in response to a reference from the government of Québec who took issue with the constitutionality of the proposed regime.

Review an analysis on Borden Ladner Gervais' website.

Regulators Release New Findings and Trends on Women on Boards and in Executive Officer Positions

Oct 05, 2017

On October 5, 2017, the securities regulatory authorities in Alberta, Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Québec, Saskatchewan and Yukon (the participating jurisdictions) published CSA Multilateral Staff Notice 58-309 "Staff Review of Women on Boards and in Executive Officer Positions – Compliance with NI 58-101 Disclosure of Corporate Governance Practices".

The notice summarizes results from a review of the corporate governance disclosure of 660 non-venture issuers with year ends between December 31, 2016 and March 31, 2017 as it relates to women in leadership roles. This is the third review following the implementation of rules under National Instrument 58-101 Disclosure of Corporate Governance Practices, which require non-venture issuers to disclose certain information regarding women on boards and in executive officer positions. The notice also highlights trends observed in the three reviews to date as well as certain compliance findings.

The review found the following:

  • The total percentage of board seats occupied by women has increased to 14 per cent from 11 per cent in the first year, reflecting a difference of three per cent.
  • Of the issuers with a market capitalization over $10 billion, 24 per cent of board seats are held by women, compared with 21 per cent in the first year, reflecting a difference of three per cent.
  • In the issuer sample, 61 per cent of issuers have at least one woman on their boards, compared to 49 per cent in the first year, reflecting a difference of twelve per cent.
  • The percentage of issuers with at least one woman in an executive officer position increased to 62 per cent from 60 per cent in the first year, reflecting a difference of two per cent.

The review noted a significant increase in the percentage of issuers that have adopted a policy relating to the representation of women on their board. Of the issuers sampled, 35 per cent have adopted a policy, representing a 20 per cent increase over three years. Those issuers that have adopted such a policy had a higher percentage of women on their boards compared to issuers without such a policy.

Review the press release and the Staff Notice on the participating jurisdictions website.

S&P 500 Excludes Companies that Limit Shareholders’ Voting Rights

Jul 31, 2017

On July 31, 2017, the S&P Dow Jones Indices announced its decision regarding multi-class shares and voting rules. Companies that limit shareholders’ voting rights aren’t eligible to become new members of the S&P 500 under the new rule.

S&P Global said in a statement that its rule specifically bars companies with “multiple share classes” from its 500, MidCap 400 and SmallCap 600 indexes. Companies typically use such a structure to grant key executives and investors more votes than other shareholders.

Existing members with multiple classes of stock, including Facebook and Alphabet, are exempted from the rule.

Review the press release on the S&P Dow Jones' website and an article on the Los Angeles Times' website.

SEC proposes amendments to simplify and modernize certain disclosure requirements in Regulation S-K

Oct 11, 2017

On October 11, 2017, the Securities and Exchange Commission (SEC) issued a proposed rule that contains a number of specific revisions to a broad group of disclosure requirements in Regulation S-K in response to a mandate of the Fixing America’s Surface Transportation (FAST) Act.

The objective of the proposed rule is to "modernize and simplify certain disclosure requirements in Regulation S-K, and related rules and forms, in a manner that reduces the costs and burdens on registrants while continuing to provide all material information to investors." The proposal underscores the importance of making registrants' disclosures more readable and navigable as well as eliminating "repetition and disclosure of immaterial information."

SEC Chairman Jay Clayton addressed the proposed rule in a public statement at the Commission's October 11, 2017, open meeting. Mr. Clayton particularly emphasized two areas in which the proposed rule has recommended improvements: (1) Management's Discussion and Analysis (MD&A) and (2) the confidential treatment process. Regarding the proposed changes related to MD&A, he pointed out that registrants would be permitted to "forgo discussion of the oldest period if the information has been previously reported and . . . is no longer material." In discussing the suggested enhancements to the confidential treatment process, he noted that the proposed amendments would "create efficiencies" by permitting "registrants to omit from material contract exhibits confidential information that is not material and would cause competitive harm if publicly disclosed, without having to request confidential treatment from the Commission."

Application to Foreign Private Issuers

The disclosure requirements for Item 5 of Form 20-F (Operating and Financial Review and Prospects) are substantively comparable to the MD&A requirements under Item 303 of Regulation S-K. To maintain a consistent approach to MD&A for domestic registrants and foreign private issuers, they are proposing changes to Form 20-F that conform to their proposed amendments to Instruction 1 to Item 303(a). Accordingly, their proposals would amend the instructions to Item 5 of Form 20-F to provide that, when financial statements included in a filing cover three years, discussion about the earliest year would not be required if (i) that discussion is not material to an understanding of the registrant’s financial condition, changes in financial condition, and results of operations and (ii) the registrant has filed its prior year Form 20-F on EDGAR containing Item 5 disclosure of the earliest of the three years included in the financial statements of the current filing. Similar to their proposals for Item 303, they are proposing to amend the instructions to Item 5 of Form 20-F to emphasize that registrants may use any presentation that, in the registrant’s judgment, would enhance a reader’s understanding.

Review the proposed rule and Mr. Clayton's public statement on the SEC's Web site.

SEC's Division of Corporation Finance Expands Popular JOBS Act Benefit to All Companies

Jun 29, 2017

On June 29, 2017, the Securities and Exchange Commission (SEC) announced that the Division of Corporation Finance will permit all companies to submit draft registration statements relating to initial public offerings for review on a non-public basis. This process will be available for IPOs as well as most offerings made in the first year after a company has entered the public reporting system. It will take effect on July 10, 2017.

Permitting all companies to submit registration statements for non-public review, similar to the benefit used by emerging growth companies (EGC) under the JOBS Act, will provide companies with more flexibility to plan their offering. The non-public review process after the IPO reduces the potential for lengthy exposure to market fluctuations that can adversely affect the offering process and harm existing public shareholders. By requiring a public filing period prior to the launch of marketing, the process incorporates a feature of the EGC review process that provides an opportunity for the public to evaluate those offerings.

Review the press release and the full announcement on the SEC's website.

TCFD publishes final recommendations on climate-related financial disclosures

Jun 29, 2017

The Task Force on Climate-related Financial Disclosures (TCFD) set up by the Financial Stability Board (FSB) to develop voluntary, consistent climate related financial risk disclosures for use by companies in providing information to lenders, insurers, investors and other stakeholders has published its final recommendations for effective disclosure of climate-related financial risks.

The final report follows on a con­sul­ta­tion document published in December 2016. The con­sul­ta­tion document saw 320 unique responses from re­spon­dents in 30 countries, including 15 of the G20 ju­ris­dic­tions. The four widely adoptable rec­om­men­da­tions on cli­mate-re­lated financial dis­clo­sures that are ap­plic­a­ble to or­gan­i­za­tions across sectors and ju­ris­dic­tions were widely supported and remain unchanged:

  • Gov­er­nance: Dis­clo­sure of the organization’s gov­er­nance around cli­mate-re­lated risks and op­por­tu­ni­ties
  • Strategy: Dis­clo­sure of the actual and potential impacts of cli­mate-re­lated risks and op­por­tu­ni­ties on the organization’s busi­nesses, strategy, and financial planning
  • Risk man­age­ment: Dis­clo­sure of how the organization iden­ti­fies, assesses, and manages cli­mate-re­lated risks
  • Metrics and targets: Dis­clo­sure of the metrics and targets used to assess and manage relevant cli­mate-re­lated risks and op­por­tu­ni­tiesThe following ad­di­tional in­for­ma­tion is available on the FSB website:
  • Key features of the rec­om­men­da­tions are that they are adoptable by all or­gan­i­za­tions, should be included in main­stream financial filings, are designed to solicit de­ci­sion-use­ful, for­ward-look­ing in­for­ma­tion on financial impacts, and have a strong focus on risks and op­por­tu­ni­ties related to the tran­si­tion to a lower-car­bon economy. The TCFD also rec­om­mends the dis­clo­sure of potential impacts of cli­mate-re­lated risks and op­por­tu­ni­ties under different potential scenarios, including a 2° Celsius scenario.

TSX Amends Proposal for New Website and Equity Compensation Plan Disclosure

Apr 06, 2017

On April 6, 2017, the Toronto Stock Exchange (TSX) published for comment a revised version of proposed amendments (Revised Amendments) to Part IV and Part VI of the TSX Company Manual and certain other ancillary amendments to the Manual.

The Revised Amendments are a revision to proposed amendments that were originally published for comment by the TSX on May 26, 2016, in response to comments received on that previous proposal.

Review an analysis on the Blakes' website.

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