Transition Guidance for New Proxy Disclosure Rules

Recently the SEC issued interpretative guidance (PDF) on how the effective date of the new proxy disclosure rules (Previous Post) would apply in various factual scenarios.  Though the new proxy disclosure rules are effective February 28, 2010, the interpretative guidance provides the following transition rules:

  • An issuer must comply with the new rules if its fiscal year ends on or after December 20, 2009, and its definitive proxy statement is filed on or after February 28, 2010. Under such facts any preliminary proxy statement required to be filed would have to comply with the new rules even if it is filed prior to February 28, 2010.
  • Under the above facts an issuer's proxy statement must comply with the new rules even if its 2009 Form 10-K is filed prior to February 28, 2010.
  • An issuer is NOT required to comply with the new rules if its fiscal year ends prior to December 20, 2009. This rule applies even if the proxy is filed on or after February 28, 2010.

Addressing voluntary compliance, the interpretative guidance provides that an issuer may voluntarily comply with some or all of the new rules; however, if an issuer desires to comply with amendments to the Summary Compensation Table and Director Compensation Table, then it must comply with all of the new rules relating to the form filed.

Addressing Form 8-Ks, the interpretative guidance provides that new item 5.07 to Form 8-K (generally requiring issuers to disclose the results of a shareholder vote and to have that information filed within four business days after the end of the meeting at which the vote was held) will apply if the annual meeting of shareholders takes place on or after February 28, 2010, even if the proxy was mailed prior to that date.  Annual meetings taking place prior to February 28, 2010 would not have to comply with new item 5.07.

The interpretative guidance may be good news for those issuers with a fiscal year ending prior to December 20, 2009, but who file their proxy (or have their annual meeting) on or after February 28, 2010.

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