October 21, 2021 Webinar
1:00pm – 2:00pm EDT
Register here

With the autumn leaves beginning to fall, it is once again time to prepare for proxy and annual report season. Companies will have to weigh various considerations this upcoming proxy season, including the objectives of new leadership at the US Securities and Exchange Commission (SEC), reporting obligations relating to human capital and environmental, social and governance (ESG) matters, and, of course, discussing in various contexts the ongoing effects of the COVID-19 pandemic in a company’s filings.

Join Mayer Brown’s Jennifer Carlson, Laura Richman, and Christina Thomas, along with Georgeson LLC’s Brigid Rosati, for a complimentary event discussing issues impacting the 2022 proxy season. Topics will include, among others:

  • Shareholder Proposals
  • ESG matters
  • Human Capital Management
  • Board Diversity
  • Virtual Meetings
  • Say-on-Pay
  • Compensation Disclosures
  • Director and Officer Questionnaires
  • Risk Factors
  • Management’s Discussion and Analysis
  • Electronic Signatures on SEC Filings

On October 14, 2021, the US Securities and Exchange Commission (SEC) issued a release reopening the comment period (Reopening Release) on the clawback listing standard rule that it proposed in 2015 (2015 Proposal). Interested parties may submit comments on any aspect of the 2015 Proposal, as well as on the additional requests for comments raised in the Reopening Release. The new comment period closes 30 days after publication of the Reopening Release in the Federal Register. This Legal Update provides background details on the 2015 Proposal, along with 10 multifaceted areas regarding additional requests for comments.

This past summer’s string of cyber enforcement actions signals that cybersecurity has become a top priority for the US Securities and Exchange Commission (SEC). These enforcement actions highlight the SEC’s scrutiny of written documentation and disclosures following incidents. In this National Cybersecurity Awareness Month Legal Update, we discuss the SEC’s recent cyber enforcement actions, as well as key lessons that SEC registrants may consider in augmenting their own risk management posture and communicating breaches to investors and clients.

October 21, 2021 Webinar
1:00pm – 2:00pm EDT
Register here.

Under former Securities and Exchange Commission Chair Jay Clayton’s leadership, the SEC focused on various areas collectively termed “good corporate hygiene.” In the first of Mayer Brown’s two-part Good Corporate Hygiene webinar series, we addressed policies related to trading in a company’s stock, especially the use of Rule 10b5-1 trading plans and the use of such plans by insiders.

In the second of our two-part series, the topics that Mayer Brown partners, Anna Pinedo and Christina Thomas, and counsel, Laura Richman, will focus on include:

  • Earnings guidance;
  • Forward-looking information;
  • The SEC’s earnings per share enforcement initiative;
  • Related person transactions (including the need for NYSE companies to review their policies in light of the recent NYSE rule change);
  • Corporate governance documents;
  • Risk assessments and disclosures, including with respect to cybersecurity and climate change;
  • Disclosure controls and procedures and internal control over financial reporting; and
  • Shareholder engagement.

Securities and Exchange Commission (SEC) Chair Gary Gensler recently started a video series called “Office Hours with Gary Gensler.” With a fitting title for a former professor, and in a world that’s gone virtually…well…virtual, the videos are brief and have the objective of hitting the high points on various topics on the SEC’s regulatory agenda.

Chair Gensler covers topics of interest to investors from climate change to proxy voting to shell companies. While the series is dedicated to educating investors, the videos provide useful insights for anyone.

Webinar | Hosted by the Practising Law Institute (PLI)
October 13, 2021, 1:00pm – 2:00pm EDT

Recently proposed legislation in the US along with rising tensions between the US and China present significant challenges for US-listed companies with substantial operations in China.

During this PLI-hosted event, Mayer Brown LLP partners, Jason T. Elder and Christina M. Thomas, will explain the details of the Holding Foreign Companies Accountable Act, how it potentially impacts US-listed Chinese companies, and options and mechanics for US-listed Chinese companies to exit the US public markets. Topics will include:

  • Recent SEC guidance and public statements;
  • Take-private transactions, such as negotiated acquisitions, buybacks, and tender offers;
  • Delisting from the NYSE and Nasdaq;
  • Deregistering securities registered with the US SEC;
  • Secondary (to primary) listings in Hong Kong; and
  • What’s next for issuers facing these uncertainties.

To learn more and to register, please visit the event website.

In a report issued by Pitchbook related to the SPAC market, quarterly trends show a recent dip.  There were 317 SPAC IPOs completed in the first quarter of 2021, but a steep decline in the second quarter, with only 106 SPAC IPOs completed.  Consistent with this trend, the third quarter has seen 111 SPAC IPOs.  Based on these numbers, reporting analysts “envision the downtrend toward 100 SPAC IPOs per quarter as a bit of rationality returning to the space…expect[ing] the true steady state to be somewhere under 100 per quarter.”

Aside from the quantitative data provided in the report, mention of recent litigation issues and Securities and Exchange Commission scrutiny that SPACs are mentioned as potentially contributing to the decline.

On the other hand, de-SPAC activity has been active: 48 business combinations closed by the end of the second quarter of 2021, while 69 business combinations closed in the third quarter.  PIPE transactions have played a significant role in de-SPAC and the report notes that median PIPE investments for 2021 come in at $210 million, which is an increase of over 32% from last year’s median of $158 million.

The report goes on to mention that even with 766 SPAC IPOs since the third quarter of 2020, “only 210 de-SPAC events have closed,” and, “[we’ve] still not seen a single quarter with more than 100 closed business combinations, even though SPAC IPOs have hit that mark each of the last four quarters.”  Analysts find this pace to be concerning because SPACs may need to return capital to shareholders, which “would be a letdown for the SPAC structure…imply[ing] that this pathway to the public markets garnered less enthusiasm than expected from the ecosystem of private companies.”

Once again, it is time to prepare for the proxy and annual report season. There are many issues to take into consideration when crafting required regulatory disclosures in a manner that conveys effective messaging to the company’s investors. Advance planning, careful drafting and multi-faceted review greatly contribute to a successful proxy and annual report season, culminating in a productive annual shareholders’ meeting.

This Legal Update provides an overview of key issues that companies should consider as they get ready for the upcoming 2022 US proxy and annual report season, including:

  • Virtual Meetings
  • Compensation Issues
  • Shareholder Proposals
  • Environmental, Social and Governance (ESG) Matters
  • Human Capital Management
  • Board Diversity
  • Proxy Voting Advice
  • Related Person Transaction Approvals
  • Dodd-Frank Rulemaking
  • Risk Factors
  • Management’s Discussion and Analysis
  • Holding Foreign Companies Accountable Act Disclosure
  • ITRA Compliance
  • Electronic Signatures on SEC Filings
  • Director and Officer Questionnaires

The Securities and Exchange Commission’s Division of Corporation Finance (Division) published a sample letter with comments that the Staff intends to issue to public companies regarding their climate change disclosures—or lack thereof—in SEC filings. As explained in a prior Mayer Brown post, Commissioner Lee, when she was Acting Chair of the SEC earlier this year, directed the Staff to increase its attention on the ways in which public companies implement the SEC’s 2010 Guidance Regarding Disclosure Related to Climate Change, which provides direction to companies regarding the SEC rules that may require disclosure about climate change, despite the fact that climate change is not explicitly referenced in the existing rules. The SEC’s disclosure requirements are largely principles-based and may require different information from different companies, including climate change-related information.

The sample comments could apply to many companies, and request analysis, as well as disclosure, to the extent material. As an example, one comment states:

We note that you provided more expansive disclosure in your corporate social responsibility report (CSR report) than you provided in your SEC filings. Please advise us what consideration you gave to providing the same type of climate-related disclosure in your SEC filings as you provided in your CSR report.

While the SEC’s rule list indicates that a climate change disclosure rulemaking is on the near-term agenda, no new rules have been adopted or proposed yet. Accordingly, the sample comments are qualified to explain that revised disclosure is only required to the extent material. That said, companies should be prepared to provide a materiality analysis in response to SEC comments.

Regardless of whether companies receive climate change-related comments from the Staff, they should re-read the 2010 Guidance Regarding Disclosure Related to Climate Change and evaluate whether any of the topics are applicable. Companies should also ensure that they have effective disclosure controls and procedures in place to facilitate disclosure of material climate change information in their SEC filings.

The Division’s sample letter can be found here, and the SEC’s 2010 Guidance Regarding Disclosure Related to Climate Change can be found here.

The special purpose acquisition company (“SPAC”) craze took the world by storm during 2020 and early 2021. SPACs continue to dominate the finance and business news cycles, with headlines of unicorns choosing to go public through this IPO-alternative. More recently, the future of the SPAC market has been called into question, as concerns have arisen relating to the performance of de-SPACed companies and SPAC-related lawsuits.

Join us on October 7, 2021, 12:00 p.m. – 1:00 p.m. EDT, for a lively panel discussion with our guests:

  • Professor Joseph A. Grundfest, W. A. Franke Professor of Law and Business and Senior Faculty, Rock Center for Corporate Governance at Stanford Law School. Former Commissioner of the Securities and Exchange Commission, co-founder with William Sharpe (1990 Nobel Laureate in Economics) of Financial l Engines, and Chair of the Audit Committee at KKR, Inc. Professor Grundfest is a nationally prominent expert on capital markets, corporate governance, and securities litigation.
  • William D. Cohan, bestselling author, financial journalist, former M&A banker, and founding partner of Puck News. Mr. Cohan is a regular contributor to The New York Times, AirMail, Financial Times, and CNBC, and was formerly a Special Correspondent for Vanity Fair.
  • Keith Canton, Managing Director and Head of Private Capital Markets at J.P. Morgan Securities, leading the firm’s SPAC PIPE practice.

During our discussion, we will address:

Market overview

  • The SPAC market: SPAC IPOs, de-SPACs; how are de-SPACs faring?
  • Is the SPAC PIPE market providing support for de-SPACing transactions?

Regulatory and potential legislative developments

  • What is the SEC saying about additional disclosure or regulation?
  • Is the SPAC Act likely to move forward and do away with the forward-looking statements safe harbor?

Litigation

  • SPAC-related lawsuits on the rise—but are these any different from other securities lawsuits?
  • Are SPACs unregistered ‘40 Act companies?

Key Webinar Information

Thursday, October 7, 2021
12:00 p.m. – 1:00 p.m. EDT
Register here