Analysis and Commentary
Merrill White Papers
Notice and Access Decision Point: Planning for a Successful Proxy Process under the New Rules
Overview of three primary options––and benefits and risks of each approach––to comply with new rules requiring all public companies to post their proxy materials on the Internet by January 1, 2009. Compliance for large accelerated fillies, excluding registered investment companies, is required January 1, 2008.
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Related Materials: Final Rule | Proposed Rule | Press Release | Legal Analysis |
Practitioner Analysis and Commentary
SEC Adopts Rules on Internet Availability of Proxy Materials
Oppenheimer Wolff & Donnelly LLP
Summary of the SEC's proposals of December 13, 2006 to allow companies to voluntarily furnish proxy materials to shareholders through a "notice and access" model and proposed rule changes mandating compliance with that model in some circumstances. The voluntary rules went into effect until July 1, 2007.
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Related Materials: Final Rule | Proposed Rule | Press Release
The SEC's New Compensation Disclosure Rules
Kirkland & Ellis LLP, Chicago, Washington, D.C., and New York
Legal memorandum summarizing selected significant aspects of new compensation disclosure rules, including compensation discussion and analysis, summary compensation and other tables, disclosure of certain relationships and related party transactions, Form 8-K disclosure, and other corporate governance matters.
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Related Materials: Final Rules PDF | Interim Final Rules PDF
View Practitioner Analysis and Commentary Archive
SEC Text and Commentary
Interpretation/Solicitation of Comment: Commission Guidance on the Use of Company Websites
Guidance regarding the use of company websites under the Exchange Act and the antifraud provisions of the federal securities laws focuses on (1) when information posted on a company website is “public” for purposes of the applicability of Regulation FD; (2) company liability for information on company websites, including previously posted information, hyperlinks to third-party information, summary information, and the content of interactive websites; (3) the types of controls and procedures advisable with respect to such information; and (4) the format of information presented on a company website, with the focus on readability, not printability. In addition, the Commission seeks comment on issues relating to company use of technology generally in providing information to investors.
Effective date: August 7, 2008
Comment date: November 5, 2008
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Final Rule: Electronic Shareholder Forums
Amendments to the proxy rules under the ’34 Act to facilitate electronic shareholder forums remove legal ambiguity that might deter using this type of communication. The amendments clarify that participation in an electronic shareholder forum is exempt from most of the proxy rules if all of certain conditions are met. The new rules also establish that shareholders, companies or certain other parties that establish, maintain or operate an electronic shareholder forum will not be liable under the federal securities laws for any statement or information provided by another person participating in the forum.
Effective date: February 25, 2008
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Final Rule: Electronic Filing and Revision of Form D
New rule amendments mandate electronic filing via the Internet information required by ’33 Act Form D and revise Form D and Regulation D accordingly. Under the new rules, Form D information will be filed with the SEC through a new online filing system accessible from any computer with Internet access. Staggered effective dates intended to enable issuers to file Form D information in electronic or paper format from September 15, 2008 until March 16, 2009 when electronic filing becomes mandatory.
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Effective dates: September 15, 2008 with the following exceptions––§ 232.101(c)(6) and §232.201(a) effective 30 days after publication of final rule release in Federal Register; §232.101(a)(1)(xiii) effective March 16, 2009; § 230.503T, §232.101(b)(10)T and § 239.500T effective from September 15, 2008 to March 16, 2009.
SEC Interpretation: Commission Guidance Regarding Management's Report on Internal Control over Financial Reporting
Interpretive release contains guidance for management on evaluation and assessment of internal control over financial reporting under Section 13(a) or 15(d) of the '34 Act. Includes a top-down, risk-based evaluation approach designed to satisfy the requirements of Rules 13a-15(c) and 15d-15(c).
Effective Date: June 27, 2007
Compliance date: Persons may not send a Notice of Internet Availability of Proxy Materials to shareholders prior to July 1, 2007
Comment due date: March 30, 2007
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Related Material: Final Rule | Request for Comment | Press Release
Final Rule: Amendments to Rules Regarding Management's Report on Internal Control over Financial Reporting (ICFR)
Amendments include clarification that evaluation complying with SEC Interpretive Guidance in Release No. 34-55929 can satisfy management's ICFR requirements. Also included are amended rules defining the term "material weakness" and revising auditor attestation requirements on ICFR effectiveness.
Effective date: August 27, 2007, except the amendment to Section 210.2-02T is effective from August 27, 2007 until June 30, 2009
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Related Material: Interpretive Release | Request for Comment | Proposed Rule | Comments | Comment Summary | Press Release
Final Rule: Internet Availability of Proxy Materials
Amendments to proxy rules under the '34 Act to allow Website posting of proxy materials and shareholder notice of proxy material availability. Related proposed rule would require issuers and other soliciting persons to furnish proxy materials to shareholders by posting them on an Internet Website and providing shareholders with notice of availability of the proxy materials.
Effective date: March 30, 2007
Compliance date: Persons may not send a Notice of Internet Availability of Proxy Materials to shareholders prior to July 1, 2007
Comment due date: Comments on the Paperwork Reduction Act burden estimate due March 30, 2007
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Related Material: Proposed Rule | Legal Analysis | Press Release
Final Rule: Executive Compensation and Related Person Disclosure (with conforming amendments)
Amended disclosure requirements for executive and director compensation and other corporate governance matters and security ownership of officers and directors, applicable to proxy and information statements, periodic reports, current reports, and other filings under the '34 Act and to registration statements under the '33 and '34 Acts. Also included are plain English requirements on the amended disclosures and a request for additional comments on proposed compensation disclosure for additional highly compensated employees. Interim final rules adopted December 22, 2006 amend Item 402 of Regulations S-K and S-B to revise the disclosure requirements for executive and director compensation. These amendments may be revised in response to comments received by January 29, 2007.
Effective date: Final rules November 7, 2006; interim final rules (revising Item 402 of Regulation S-K and S-B) effective December 29, 2006.
Compliance dates: Various specific dates for compliance are summarized on on page 53158 of the September 8, 2006 Federal Register.
View: Final Rules PDF | Interim Final Rules PDF | Legal Analysis
Final Rule: Regulation NMS Compliance Extension
The SEC has extended for a limited time three of the future compliance dates for Rule 610 and Rule 611 of Regulation NMS under the ’34 Act. The effective date for Rules 610 and 611 remains August 29, 2005. Three extended compliance dates for different functional stages of compliance with Rules 610 and 611 are set forth in section I of the SEC’s January 24m 2007 release (Release No. 34-55160), beginning with the “Trading Phase Date,” which has been extended from February 5, 2007 to March 5, 2007.
Effective date: Date of publication in the Federal Register
Compliance date: Various extended compliance dates set forth in Section I of Release No. 34-55160
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Related Material: Press Release | Final Rule | Proposed Rule | Legal Analysis
See also Final Rule: Regulation NMS below for links to additional related material.
Final Rule: Internal Control over Financial Reporting in Exchange Act Periodic Reports of Foreign Private Issuers That Are Accelerated Filers
Extension of compliance date for foreign private issuers that are accelerated filers, but not large accelerated filers, for amendments to Forms 20-F and 40-F concerning management's assessment on internal control over financial reporting.
Effective date: September 14, 2006; except Temporary §210.2-02T, Temporary Item 15T of Form 20-F, and Temporary Instruction 2T of General Instruction B(6) of Form 40-F are effective from September 14, 2006 to December 31, 2007.
Compliance dates: Various specific dates for compliance are summarized on pages 1 and 2 of the release.
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Related Material: Press Release | Concept Release
Final Rule: Securities Offering Reform
Full text and commentary on new and amended rules to modify and significantly advance the registration, communications, and offering processes under the ’33 Act. Goals of the reform include eliminating unnecessary restrictions on offerings, providing more timely information to investors, and continuing the integration of disclosure and processes under the ’33 and ’34 Acts.
Effective date: December 1, 2005
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Related Material: SEC Transitional Guidance (FAQs answered 9/13/05)
Legal Analysis: Go to Securities Offering Reform Highlights for quick index to legal analysis and commentary.
Background Material: SEC Announcement | SEC Chairman Opening Statement | SEC Senior Special Counsel Opening Statement | Summary of June 29, 2005 Open Meeting | Proposed Rules
Also see Spotlight on Securities Offering Reform page for a complete index to related materials on Merrill's website.