CORPORATE REGULATORY COMPLIANCE BOOT CAMP 2022 - PART 2: Securities Law Compliance
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The document outlines a webinar aimed at educating attorneys, accountants, and business executives on securities law compliance, particularly focusing on the implications of the Sarbanes-Oxley and Dodd-Frank acts. It discusses key topics including board fiduciary duties, director independence, and SEC compliance, emphasizing the evolving role of corporate governance. Additionally, the series offers practical advice and best practices for navigating compliance challenges faced by both public and private companies.
![Independence
⚫ NYSE Independence
➔ Board determines independence based on materiality of a relationship that could
pose a conflict of interest
➔ Board should “broadly consider all relevant facts and circumstances”.
➔ “Material relationships can include commercial, industrial, banking, consulting,
legal, accounting, charitable and familial relationships, among others”.
➔ Ownership of “even a significant amount of stock, by itself, [is not] a bar to an
independence finding.” NYSE looks for “independence from management”.
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CORPORATE REGULATORY COMPLIANCE BOOT CAMP 2022 - PART 2: Securities Law Compliance
- 2. 2 Practical and entertaining education for attorneys, accountants, business owners and executives, and investors.
- 3. Disclaimer The material in this webinar is for informational purposes only. It should not be considered legal, financial or other professional advice. You should consult with an attorney or other appropriate professional to determine what may be best for your individual needs. While Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate, Financial Poise™ makes no guaranty in this regard. 3
- 4. 4 Thank You To Our Sponsors:
- 5. Meet the Faculty MODERATOR: Rafael Zahralddin-Aravena – Lewis Bris Bois, LLP PANELISTS: Danilo Castelli – Troutman Pepper Hamilton Sanders, LLP Rakesh Gopalan - McGuireWoods LLP 5
- 6. About This Webinar - Securities Law Compliance The Securities and Exchange Commission has been entrusted with a significant corporate compliance regulatory function, which has been expanded by seminal legislation in the recent past such as the Sarbanes-Oxley (“SOX”) and Dodd-Frank Acts. This webinar discusses board fiduciary duties and the tension between state corporate law standards and federal law. Board composition, independence, structure and processes (including best practices in regard to committees) are analyzed. Specifically, director independence is discussed as is audit committees and related requirements, regulations and exemptions. NASDAQ and the NYSE also have similar requirements for director independence and those are also discussed. The webinar also covers disclosure matters related to SOX compliance, including timing and content of an issuer's periodic disclosures. Both the legal requirements and best practices related to disclosure procedures and internal controls under SOX are examined. Means of controlling the costs of SOX, especially for smaller public companies, are also discussed, including trends in the industry related to high regulatory compliance costs. Finally, the applicability and best practices for privately held companies and SOX are considered… 6
- 7. About This Series - Corporate & Regulatory Compliance Boot Camp 2022 – Part 2 This webinar series covers internal investigations related to corporate and regulatory compliance, corporate law compliance, securities law compliance (with a focus on the Sarbanes-Oxley Act) and executive compensation as it relates to corporate and regulatory compliance. The various episodes examine these topics from a company’s perspective with a focus on the impact to the company’s day-to-day and long-term operations. Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and executives without much background in these areas, yet is of primary value to attorneys, accountants, and other seasoned professionals. Each episode brings you into engaging, sometimes humorous, conversations designed to entertain as it teaches. Each episode in the series is designed to be viewed independently of the other episodes so that participants will enhance their knowledge of this area whether they attend one, some, or all episodes. 7
- 8. Episodes in this Series #1: Securities Law Compliance Premiere date: 09/28/2022 #2: Executive Compensation Premiere date: 10/26/2022 #3: Overview of General Corporate Law Compliance Premiere date: 12/7/2022 8
- 9. Episode #1 Securities Law Compliance 9
- 10. I. Board Fiduciary Duties and Interaction Between State Corporate Law Standards and Federal Law 10
- 11. Evolution of Board Governance ⚫ The board’s role in the governance has evolved ➔ Traditionally advisory/guidance function: strategy, tactics, hiring/firing, etc. ➔ Today a compliance oversight function: ensure compliance with applicable legal, accounting, and regulatory requirements ➔ Caremark, Stone v Ritter, Citigroup, Goldman Sachs, and beyond 11
- 12. Impact of Federal Law on State Law Fiduciary Duties ⚫ What it means for a board to act in accordance with its fiduciary duties has been impacted by growth of federal presence in corporate law ➔ Securities Act of 1933, Securities Exchange Act of 1934 – Disclosure ➔ Sarbanes-Oxley - specific corporate governance measures ➔ Dodd Frank – shareholder voting ➔ Sherman Anti-Trust Act – board composition ➔ Privacy, industry-specific, and other regulations 12
- 13. Governance’s Many Sources ⚫ Federal Corporate Governance Laws ⚫ Securities Act governs issuance of securities ⚫ Exchange Act governs proxies, exchanges ⚫ SOX federalized some governance elements ➔ Audit committee requirements ➔ Creation of PCAOB overseeing auditors ➔ Independence requirements ➔ Internal controls and certifications 13
- 14. Governance’s Many Sources ⚫ Federal Corporate Governance Laws (cont’d) ⚫ Dodd-Frank added governance elements ➔ “Say on Pay” ➔ Compensation committee independence ➔ Proxy access ⚫ Proxy disclosure requirements dictate substantive activities for boards and committees ➔ Line item compensation disclosure for execs ➔ CD&A discussion of compensation policies ➔ Disclosures on governance structure, risk 14
- 15. Governance’s Many Sources ⚫ Federal Corporate Governance Laws (cont’d) ⚫ Case law under SEC Rule 10b-5 affects: ➔ Corporate disclosures ➔ “Tipping” and confidentiality obligations ⚫ SEC enforcement authority ➔ Administrative procedures ➔ Injunctive relief ➔ Lifetime bars from public company service 15
- 16. Governance’s Many Sources ⚫ Exchange listing requirements ⚫ Some federal requirements are implemented via SEC oversight of exchange listing process ➔ Independence of directors ➔ Audit committee requirements ➔ Compensation committee independence ⚫ Exchange rules are contractual between company and exchange ⚫ NYSE and NASDAQ have similar rules, but differ in details 16
- 17. Exchange Listing Standards ⚫ NYSE and NASDAQ listing standards ➔ Requirement that listed company boards are majority independent ➔ Definition of “independence” ➔ Accounting requirements 17
- 18. Audit Standards (Modified in 2007) ⚫ Public Company Accounting Oversight Board (PCAOB), a nonprofit private corporation was created by SOX to oversee auditors of SEC-registered companies. ⚫ Auditing Standard No. 5 gave more flexibility to auditors, replacing prescriptive language requiring certain action or testing with more discretion so the auditor can focus on risk and materiality. ⚫ Audits were made scalable under No. 5 to allow the auditor to fit the size and complexity of the company. 18
- 19. Audit Standards (Modified in 2007) ⚫ Auditors are to focus on the areas of highest risk and the new standard eliminated a directive by Auditing Standard No. 2 which required examination of management's evaluation process to the exclusion of other areas. Prior years' testing results could also be used to reduce testing in the current year. ⚫ Auditors are also allowed to use the work of parties other than internal auditors. ⚫ Auditing Standard No. 2 was criticized for unnecessarily increasing compliance costs (especially for smaller public companies and growth stage companies). 19
- 20. Internal Corporate Policies ⚫ Law requires companies to adopt certain policies, but these policies are not themselves laws ➔ Whistleblower policies ➔ Code of ethics ➔ Legal compliance programs ➔ Trading policies ⚫ Violation or waiver of the policies can have consequences ➔ Disclosure of waiver of ethics policy ➔ Caremark liability for legal compliance failure 20
- 21. Internal Corporate Policies ⚫ Committee charters ➔ Required by exchanges for audit, compensation and nominating committees ➔ Set out processes that committee will follow ➔ Breach could be evidence of bad faith or failure to use due care 21
- 22. “Best Practices” ⚫ Beyond legal or exchange standards, investor and business organizations promote “best practices” recommendations ⚫ Proxy advisory firms identify areas they review and use to recommend shareholder votes against management ⚫ Topic areas can include: ➔ Environmental, Social and Governance (ESG) matters ➔ Communication and engagement with shareholders ➔ Sustainability programs 22
- 23. Impact on Balance Between Role of Shareholders and Role of Board ⚫ State law places management of the corporation in board’s hands, even where majority of shareholders express preference for a specific outcome ⚫ Shareholder access and activism ➔ Federally-mandated say on pay and 14a-8 proposals on other matters that are not within shareholder decision rights ➔ Influence and policies of proxy advisory firms ➔ SEC regulation of investment advisors 23
- 24. II. SEC Compliance in the Boardroom 24
- 25. SEC Compliance in the Boardroom ⚫ Important Distinction: Compliance ≠ Governance ⚫ Oversight of a company’s compliance with SEC Regulations is a subset of the board’s fiduciary “duty of care” equivalent to compliance with other legal and regulatory obligations of the company, which include various federal, state, and local laws and regulations ⚫ SEC Regulations are especially important because they cover the publicly-traded dimension of the company 25
- 26. SEC Compliance in the Boardroom ⚫ Public company board members are not expected to be experts in SEC Compliance, however they should be aware that certain company and board activities give rise to potential regulatory issues or reporting requirements including but not limited to: ➔ Financial reporting ➔ Certain company events, e.g., matters affecting senior executives, important company news, M&A, strategic decisions, etc. ➔ Shareholder communications ➔ ESG matters 26
- 27. SEC Compliance in the Boardroom ⚫ Importance of independence, in appearance and reality – executive sessions, only independent board members vote on certain issues, etc. ⚫ Ability of the board to seek outside advice, including special counsel – especially when there has been a problem or special circumstances exist, e.g., related party transaction ⚫ Recordkeeping is key to demonstrating fulfillment of fiduciary duties, including regulatory compliance: what did the board do, how did it prepare, etc. 27
- 28. SEC Compliance in the Boardroom ⚫ Regular board evaluations are an important tool in improving governance. Self- evaluations are fine if rigorously pursued, but where there have been problems or for a large company, utilize an outside evaluator ⚫ Provide board education opportunities, including a budget for reimbursement, and consider NACD Full Board Membership as well as support for pursuing NACD Fellowship 28
- 29. III. Independence, Disclosure to the SEC, and Regulation by Exchanges 29
- 30. Independence ⚫ Independence is a proxy for what we really want: Decision makers who evaluate facts without bias and make judgments without favoritism ⚫ Director independence comes primarily from NYSE and NASDAQ listing agreements ⚫ Exchanges set definitions with SEC approval and statutory guidance 30
- 31. Independence ⚫ “Independence” is tested at different times and for different purposes in corporate governance: ➔ For board, exchanges require independence of directors from management ➔ For transaction between company and insiders, consider lack of personal stake in the deal ➔ For audit committee, need independence from management, auditors and major shareholders ➔ For compensation committee, independence from management, but not necessarily major shareholders ➔ For special litigation committee, sufficient independence to act in company’s best interest 31
- 32. Independence ⚫ SEC is not the primary arbiter of director independence, but requires proxy disclosures on independence: ➔ which directors and nominees are “independent” under company’s exchange standards; ➔ describe transactions, relationships, and arrangements the board considered in determining independence; and ➔ whether any audit, nominating, or compensation committee members are not independent ⚫ In addition to “independence” for securities law purposes, directors must consider the related—but not identical—independence requirements for ➔ executive compensation transactions ➔ special litigation committees ➔ board approval of related party transactions 32
- 33. Independence ⚫ NYSE Independence ➔ Board determines independence based on materiality of a relationship that could pose a conflict of interest ➔ Board should “broadly consider all relevant facts and circumstances”. ➔ “Material relationships can include commercial, industrial, banking, consulting, legal, accounting, charitable and familial relationships, among others”. ➔ Ownership of “even a significant amount of stock, by itself, [is not] a bar to an independence finding.” NYSE looks for “independence from management”. 33
- 34. Independence ⚫ NYSE Independence 2 ➔ Relationship that disqualifies independence finding can apply to the director, but also “immediate family member”. ✓ Definition “includes a person’s spouse, parents, children, siblings, mothers and fathers-in-law, sons and daughters-in-law, brothers and sisters-in-law, and anyone (other than domestic employees) who shares such person’s home”. ✓ No family relationship attributed to individuals who have died or become incapacitated, or ceased to be family members due to legal separation or divorce. 34
- 35. Independence ⚫ Specific NYSE Independence elements 1 ➔ Not employee in last 3 years ➔ No immediate family member acting as executive in last 3 years ✓ Director can act as interim chairman, CEO, or other executive officer without affecting 3-year lookback ✓ Not independent during the interim executive service ➔ Receive less than $120,000 in non-employment compensation from company in last 3 years ✓ Excludes director fees, pension, or deferred compensation for prior service ✓ Includes payments to immediate family member acting as executive in current year 35
- 36. Independence ⚫ Specific NYSE Independence elements 2 ➔ Not current partner or employee of a company auditor ➔ No immediate family member who is a current partner of a company auditor ➔ No immediate family member who works for auditor and personally works on the company’s audit ➔ Not personally worked on company audit in prior 3 years as partner or employee of auditor ➔ No immediate family member personally worked on company audit in prior 3 years as partner or employee of auditor 36
- 37. Independence ⚫ Specific NYSE Independence elements 3 ➔ No compensation interlocks (where a director of Company A, or immediate family member, acts as executive officer in Company B, and an executive of Company A sits on Company B’s compensation committee) ➔ No “significant business relationship” in past 3 years ➔ Where payments to Company B for property or services exceeds the greater of $1 million or 2% of Company B’s consolidated gross revenues and director is employee of (or has immediate family member who is an executive of) Company B. ➔ Charity relationship in those amounts is not automatically disqualifying, but must be disclosed on the company’s website or proxy statement. Board must also weigh the relationship in making an independence finding. 37
- 38. Independence ⚫ NYSE Committees 1 ➔ Must have audit, compensation and nominating committees of all independent directors ⚫ Compensation Independence ➔ If director is an affiliate, board must determine director is otherwise independent 38
- 39. Independence ⚫ NYSE Committees 2 ➔ Audit Independence ✓ Must meet SEC Rule 10A-3 requirements ✓ Not an affiliate of the company ✓ Not accept “directly or indirectly” any consulting, advisory, or other compensatory fee ✓ Retirement pay or deferred compensation is not counted, unless the payment is contingent on continued service ✓ Must meet all NYSE independence requirements ✓ If member serves on more than 3 public company audit committees, board must make a determination the director can serve effectively 39
- 40. Independence ⚫ NASDAQ Independence ➔ Board is responsible to affirmatively determine no relationships exist that would impair a director’s independence ➔ Relationship that disqualifies independence finding can apply to the director, but also “family member” ✓ Definition includes a person’s “spouse, parents, children and siblings, whether by blood, marriage or adoption, or anyone residing in such person’s home” 40
- 41. Independence ⚫ Specific NASDAQ independence elements ➔ Substantially the same as NYSE requirements ➔ Some wording variations and interpretative guidance variations ➔ Key differences: ✓ Director can act as interim chairman, CEO, or other executive for not more than one year ✓ No “significant business relationship” in past 3 years ✓ Where payments to Company B for property or services exceeds the greater of $200,000 or 5% of Company B’s consolidated gross revenues and director is employee of (or has immediate family member who is an executive of) Company B ✓ Excludes amounts derived from investments in Company B securities 41
- 42. Independence ⚫ Charity relationship at $220k/5% trigger automatically disqualifies independence ➔ Charity relationship below the trigger threshold should be evaluated to determine whether it compromises director’s independence ⚫ New NASDAQ board diversity standards approved by the SEC in August 2021 requires two diverse directors (one who identifies as female and another underrepresented minority or lgbtq+), or an explanation for why the board does not meet that standard
- 43. IV. SEC Reporting and Disclosure 43
- 44. SEC Reporting ⚫ A public company has two primary “periodic” reports to file with the SEC: ➔ Form 10-K—annual report ➔ Form 10-Q—quarterly report for Q1, Q2, and Q3 of fiscal year ⚫ The periodic reports set a baseline of disclosure for investors: ➔ Financial reports ➔ Audits for annual report only ➔ MD&A ➔ Certifications by CEO and CFO that there are no misstatements or material omissions ➔ Certification includes financial reporting controls and disclosure controls 44
- 45. SEC Reporting ⚫ 10-K ⚫ Timing for filing depends on size of company ⚫ 60 days after fiscal year end for “large accelerated filer” ➔ Common stock held by non-affiliates valued at $700 million or more, as of end of second fiscal quarter, and not eligible to meet smaller reporting company test if annual revenues are less than $100 million ⚫ 75 days after fiscal year end for “accelerated filer” ➔ Common stock held by non-affiliates valued at $75 million or more, but less than $700 million, as of end of second fiscal quarter, and not eligible to meet smaller reporting company test if annual revenues are less than $100 million ⚫ 90 days after fiscal year end for all other companies 45
- 46. SEC Reporting ⚫ 10-K ⚫ Elements relating to executive compensation, discussion of directors and certain governance matters can be incorporated from the proxy statement sent to shareholders, provided that the definitive proxy statement is filed with the SEC by not later than 120 days after fiscal year end. ⚫ 10-K will include auditors report 46
- 47. SEC Reporting ⚫ 10-Q ⚫ Timing depends on size of company ➔ 40 days for Accelerated filer and Large Accelerated Filer ➔ 45 days for all other companies. ⚫ Includes ➔ Unaudited financial statements ➔ MD&A ➔ Repurchases of common stock 47
- 48. SEC Reporting ⚫ Proxy statement ⚫ Filed with the SEC ⚫ Subject to SEC review unless relates to routine matters ➔ Election of directors ➔ Approval of auditors ⚫ Also sent directly to shareholders ⚫ Must be accompanied by “annual report” information ➔ May be “glossy” annual report; may also be Form 10-K ⚫ Timing of filing depends on state law requirements 48
- 49. SEC Reporting ⚫ Current report on Form 8-K ⚫ 8-K is used to report on material developments between periodic reports ⚫ Must be filed within four business days of triggering event except: ➔ 2 days from receipt of auditors notice of restatement letter ➔ 71 days for filing of acquired business financial statements ➔ Simultaneous with Reg. FD disclosure (or next day, if inadvertent) ➔ No deadline for voluntary disclosures ➔ Prior to earnings call, for financial press releases 49
- 50. SEC Reporting ⚫ Events that trigger 8-K filing ➔ Entry into material agreement; termination of material agreement ✓ Includes all executive compensation agreements ✓ M&A or similar transactions ➔ Bankruptcy ➔ Financial developments, such as earnings announcements, impairment of assets, triggering of event for default, accounting developments ➔ Delisting 50
- 51. SEC Reporting ⚫ Events that trigger an 8-K filing ➔ Issuance of securities in unregistered offering ➔ Modification in rights of security holder ➔ Change in control ➔ Departure of executive or director ➔ Waiver or amendment of code of ethics ➔ Changes in articles or bylaws 51
- 52. Trend: There is a Growing Drumbeat for Increased ESG Disclosures SEC disclosure requirements focused on the “G” historically (Reg S-K adopted in the 1980s) Over time, steady layering in of additional ESG-related disclosure requirements • 2010 – climate risk disclosure first required • Qualifications/skills considered in director selection • Board diversity policy and related disclosures • CEO/Board Chair roles – combined or not? • Human capital disclosure • 2022 Proposed rules on climate-related risks
- 53. Trend: There is a Growing Drumbeat for Increased ESG Disclosures Recent dramatic acceleration in SEC’s focus on ESG matters • ESG page at sec.gov – https://www.sec.gov/sec-response-climate-and-esg-risks-and- opportunities • Corp Fin directed to focus on climate-related disclosures • Division of Examinations 2021 examination priorities include climate-related risks • Climate and ESG Task Force • Request for public comment on climate change disclosure • Gensler’s recent rulemaking agenda Heavy influence of proxy advisory firms, institutional investors and reporting frameworks
- 54. Recent Focus on ESG at SEC • February 24, 2021 – Acting Chair Allison Herren Lee issues public statement directing CF to enhance its focus on climate-related disclosure in public company filings. • March 3, 2021 – Division of Examinations announces 2021 examination priorities, including enhanced focus on climate-related risks. • March 4, 2021 – SEC created “Climate and ESG Task Force” in the Division of Enforcement led by Kelly L. Gibson, Acting Deputy Director of Enforcement, to develop initiatives to proactively identify ESG-related misconduct, coordinate effective use of Division resources, analyze data to mine and assess information across registrants to identify potential violations. • April 9, 2021 – Risk Alert released by Division of Examinations on ESG Investing. • March 21, 2022 – SEC proposed rules related to climate-related disclosures and risks.
- 55. Trend: Stakeholder Mandates on ESG are a Real Force • “Climate risk is investment risk,” stated BlackRock CEO Larry Fink in his 2021 annual letter to chief executives in January. Observing the sharp rise in investment in sustainable assets in 2020, he believes this is “the beginning of a long but rapidly accelerating transition” suggesting that assets with high sustainability will be rewarded through the transition to more sustainability investing. • In State Street’s 2021 CEO letter, Cyrus Taraporevala indicated that its “main stewardship priorities for 2021 will be the systemic risks associated with climate change and a lack of racial and ethnic diversity.” • President Biden’s May 20 Executive Order on Climate-Related Financial Risk includes directives to various federal regulators to take actions to address climate-related financial risk. • Delta Air Lines Inc. – shareholders voted in favor of shareholder proposal to require Delta to describe “if, and how, Delta Air Lines’ lobbying activities (direct and through trade associations and social welfare and nonprofit organizations) align with the Paris Climate Agreement’s goal of limiting average global warming to well below 2 degrees Celsius, and how the company plans to mitigate risks presented by any such misalignment.” • Exxon Mobil Corp. – based on 8-K/A filed June 21, 3 board seats to activist shareholder Engine No. 1, which has stated Exxon must, “Implement a strategic plan for sustainable value creation in a changing world by fully exploring growth areas, including more significant investment in clean energy, to help the Company profitably diversify and ensure it can commit to emission reduction targets, as well as optimization of commercial operations, all with the benefit of a Board better qualified to consider such opportunities.”
- 56. V. SOX Section 404 56
- 57. Section 404 ⚫ Section 404 ⚫ Section 404(a) of SOX requires all public companies to include in their annual reports on Form 10-K a report from management on the effectiveness of the company's internal control over financial reporting. ⚫ Section 404(b) requires the company's independent auditor to attest to management's assessment of the effectiveness of those internal controls. 57
- 58. Internal Control Under SOX ⚫ Internal Controls – SOX Section 404 ➔ Top-down, risk-based ➔ Complicated, contested, and expensive to implement 58
- 59. Internal Control Under SOX ⚫ Financial reports must include an Internal Control Report: ➔ Management is responsible for an "adequate" internal control structure ➔ An assessment by management of the effectiveness of the control structure ➔ Shortcomings must be reported ⚫ Registered external auditors must attest to the accuracy of management’s assertion that internal accounting controls are in place, operational and effective 59
- 60. Internal Control Under SOX ⚫ Issues: ➔ Identifying risks, developing control objectives ➔ Compliance – process, team, assessments, documentation, cost ➔ Testing, remediation, reporting ➔ IT 60
- 61. VI. SOX as Best Practices and Private Companies 61
- 62. SOX as Best Practices and Private Companies ⚫ SOX: ➔ More than just a check-the-box regulatory requirement, SOX compliance is an opportunity to: ✓ Test and possibly strengthen systems and controls, thereby reducing risk ✓ Get a look at another accounting firm in action (in some cases, internal audit is acceptable alternative) ➔ While SOX generally does not apply to private companies, if an IPO or sale to a public company is a future possibility, consider adopting voluntary SOX compliance processes (no filing) 62
- 63. Private Companies ⚫ Lessons for Private Companies: ➔ Even without public shareholders, others may be relying upon the accuracy of company’s financial statements and other pronouncements: ✓ Lenders ✓ Creditors ✓ Private shareholders ➔ As with voluntary SOX compliance, an understanding of SEC Compliance is valuable to private company board members if an IPO or future sale to a public company is a possibility 63
- 64. Best Practices ⚫ Suggested “Best Practices” – also applicable for private companies (list incomplete): ➔ Keep records showing that materials for board meetings were distributed reasonably in advance, especially when voluminous (use portal) ➔ Board and committee minutes should disclose only action taken, but not unanimity or lack thereof, unless counsel recommends otherwise ➔ Distribute draft minutes for comments within a week of the meeting, while memories are fresh ➔ Have annual legal review of whistleblower policies and procedures ➔ Have committee charters reviewed annually 64
- 65. Best Practices ⚫ Suggested “Best Practices” – also applicable for private companies (list incomplete): ➔ Assign risk oversight explicitly to a committee, e.g., audit or a risk committee, and discuss its recommendations extensively with the board ➔ While rigid term limits have pro’s and con’s, make sure the Nom/Gov Committee explicitly considers board tenure and the potential need for “refreshment” ➔ Establish a “skills matrix” for board member competences, and use it when recruiting new board members ➔ Boardroom diversity isn’t for show – companies with diverse boards perform better ➔ Beware of “imperial” board or committee chairs – courteous disagreement is healthy 65
- 66. VII. Compliance Cost Concerns Under SOX “Small Public Companies and Growth Stage Companies” 66
- 67. Cost Concerns of SOX Compliance on Small Public Companies and Private Companies in Growth Stage ⚫ Smaller public companies have incurred disproportionately higher audit costs in implementing the act, but impact on access to capital remains unclear, ⚫ Smaller public companies incurred disproportionately higher audit costs, ⚫ Smaller public companies incurred other costs in complying with SOX, ⚫ Smaller companies have different characteristics than larger companies, some of which contributed to higher implementation costs, ⚫ Complexity, scope, and timing of PCAOB guidance also appeared to influence cost of section 404 implementation, ⚫ Costs associated with SOX may have impacted the decision of some smaller public companies to go private, but other factors also influenced decision to go private, and ⚫ Sarbanes-Oxley affected access to capital for smaller public companies 67
- 68. Concerns Over Cost for Smaller Public Companies ⚫ Complying with Section 404(b) is expensive ⚫ An accelerated filer is an issuer with a public float of at least $75 million* ⚫ A “non-accelerated filer” is an Exchange Act reporting company that does not meet the definition of either an accelerated filer or a large accelerated filer. Large accelerated filers have a public float of $700 million or more* ⚫ “Smaller reporting companies” are generally those companies with less than $75 million in worldwide public float ⚫ Public float is the part of the company’s outstanding shares in the hands of public investors *excludes companies who are eligible to meet smaller reporting company test if annual revenues are less than $100 million 68
- 69. Section 404(c) and Dodd-Frank ⚫ Section 404(c) was added by Dodd-Frank to SOX ⚫ 404(c) provides that the auditor attestation requirement of Section 404(b) will apply only to accelerated filers and large accelerated filers ⚫ Although non-accelerated filers will continue to provide the report from management in their annual reports, the permanent exemption from 404(b) should significantly reduce the ongoing costs of being a public company 69
- 70. 404(b) SEC Staff Recommendations ⚫ There is not conclusive evidence linking the requirements of Section 404(b) to listing decisions of the studied range of issuers ⚫ The 2007 reforms of the SEC’s June 2007 interpretive release and the PCAOB’s (Public Company Accounting Oversight Board) adoption of AS 5 had the intended effect of reducing the compliance burden and improving implementation of Section 404 ⚫ The costs of Section 404(b) have declined since the SEC first implemented the requirements of Section 404, particularly in response to the 2007 reforms ⚫ Investors generally view the auditor’s attestation on ICFR as beneficial ⚫ Financial reporting is more reliable when the auditor is involved with ICFR assessments 70
- 71. JOBS Act ⚫ The JOBS Act is an acronym for Jumpstart Our Business Startups ⚫ The law exempts an emerging growth company from the requirements of Section 404 ⚫ Emerging growth companies are defined as entities with less than $1.235 billion in annual gross revenue or a $700 million market capitalization ⚫ The exemption can last for up to five years if it does not grow too large during that time 71
- 73. About The Faculty Rafael Zahralddin-Aravena –[email protected] Rafael X. Zahralddin-Aravena is a skilled business lawyer and litigator with significant experience advising clients in corporate and commercial litigation, insolvency, distressed M&A, compliance, corporate law and entity formation, corporate governance, commercial transactions, cyber law, regulatory actions and cross- border issues. Rafael represents clients in all aspects of bankruptcy and restructuring and has extensive experience in international commercial law issues, including cross-border insolvency, federal bankruptcy court matters, and assignments for the benefits of creditors and receiverships. Rafael’s international law experience particularly in international commercial transactions brings a unique and nuanced approach to business issues both inside and outside of distressed situations. He has also worked for two decades with early stage companies and venture capitalists and private venture funds as both a transactional lawyer and a corporate litigator. He has assisted businesses in starting, selling, or buying a business, and dealing with employees and contracts, among other operational issues. This experience has been critical in representation of both debtors and creditors committees in chapter 11. Rafael is noted for his problem solving abilities, especially with varied constituencies on official and ad hoc committees, including trade creditors, bondholders, labor unions and other key stakeholders in insolvency matters. 73
- 74. About The Faculty Danilo P. Castelli - [email protected] Danilo is an associate focusing on corporate and securities matters. He provides regulatory and corporate advice to financial institutions, counseling them on a variety of regulatory and compliance matters, including in connection with applications to federal regulatory agencies. Additionally, Danilo counsels clients, such as pharmaceutical companies, financial institutions, and large corporations, in connection with securities offerings, securities regulation, mergers and acquisitions, and general corporate governance. 74
- 75. About The Faculty Rakesh Gopalan - [email protected] Rakesh is a corporate and securities lawyer, with extensive experience in complex technology and outsourcing deals, public company securities issuances and reporting requirements, private- and public-company mergers and acquisitions, and other corporate and transactional matters. He is actively involved in diversity and inclusion efforts within the firm and the legal community, including through his work as a founding member and current board member of the Charlotte Asian Pacific American Bar Association. Rakesh’s securities practice includes advising on a broad range of securities matters, representing both issuers and underwriters in initial public offerings, follow-on offerings of debt, equity, derivative and hybrid securities, private investments in public equity (PIPE) transactions and tender and exchange offers. He also advises public companies in connection with their periodic and annual reporting, proxy statements, board and committee governance issues, and Section 16 and insider trading matters. 75
- 76. Questions or Comments? If you have any questions about this webinar that you did not get to ask during the live premiere, or if you are watching this webinar On Demand, please do not hesitate to email us at [email protected] with any questions or comments you may have. Please include the name of the webinar in your email and we will do our best to provide a timely response. IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education. 76
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