Yesterday, the SEC proposed rule amendments governing beneficial ownership reporting under Exchange Act Sections 13(d) and 13(g).

The proposed amendments to Regulation 13D-G would accelerate the filing deadlines for Schedules 13D beneficial ownership reports from 10 days to five days and require that amendments be filed within one business day. The amendments would also generally accelerate the filing deadlines for certain Schedule 13G beneficial ownership reports from 45 days after year-end to five business days after the end of the month in which the investor beneficially owns more than 5 percent, and require amendments to be filed five business days after the month in which a material change occurred rather than 45 days after the year in which any change occurred. The proposed amendments also would accelerate the amendment obligations for certain Schedule 13G filers upon exceeding 10 percent beneficial ownership or a 5 percent increase or decrease in beneficial ownership of a covered class, requiring that qualified institutional investors and passive investors file an amendment within five days and one business day, respectively. Note that the cut-off time for filings would be extended to 10:00 p.m. rather than 5:30 p.m. Eastern Time, similar to Section 16 reports.

The proposed amendments would also expand the application of Regulation 13D-G to certain derivative securities; clarify the circumstances under which two or more persons have formed a "group" that would be subject to beneficial ownership reporting obligations; provide new exemptions to permit certain persons to communicate and consult with one another, jointly engage issuers, and execute certain transactions without being subject to regulation as a "group;" and require that Schedules 13D and 13G be filed using a structured, machine-readable data language.

What public companies need to know about environmental disclosures, including recent climate risk and ESG disclosure initiatives.

By Jeffrey Karp, Senior Counsel; Vic Baltera, Partner; Howard Berkenblit, Partner; and Edward Mahaffey, Law Clerk

In fulfilling disclosure obligations under the Securities Act of 1933 and the Securities Exchange Act of 1934, public companies are required to disclose various potential environmental liabilities and potential risks in filings with the U.S. Securities and Exchange Commission (SEC or Commission). During the 1970s, SEC efforts in the area of environmental disclosure focused primarily on statutes such as the Clean Water Act and the Clean Air Act.

Subsequently, disclosure requirements were expanded to also encompass liabilities and cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Over time, the SEC increasingly has emphasized broader disclosure of environmental matters, as the Commission further articulated the materiality standards for disclosure under the securities laws. These standards provide that information is material if there is a substantial likelihood that a reasonable investor would consider it important in deciding how to vote or in making an investment decision—in other words, "that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the 'total mix' of information made available.'" See Basic, Inc. v. Levinson, 485 U.S. 224, 231 (1988) (quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976)).

SEC disclosure requirements for environmental liabilities are contained primarily in the uniform disclosure rules of ...

Read full Client Alert here.

The SEC today proposed rule changes regarding the disclosure of share repurchase plans. The proposed rules would require an issuer to provide a new Form SR before the end of the first business day following the day the issuer executes a share repurchase. Form SR would require disclosure identifying the class of securities purchased, the total amount purchased, the average price paid, as well as the aggregate total amount purchased on the open market in reliance on the safe harbor in Exchange Act Rule 10b-18 or pursuant to a plan that is intended to satisfy the affirmative defense conditions of Exchange Act Rule 10b5-1(c). The proposed amendments also would enhance existing periodic disclosure requirements regarding repurchases of an issuer’s equity securities. Specifically, the proposed amendments would require an issuer to disclose: the objective or rationale for the share repurchases and the process or criteria used to determine the repurchase amounts; any policies and procedures relating to purchases and sales of the issuer’s securities by its officers and directors during a repurchase program, including any restriction on such transactions; and whether the issuer is making its repurchases  pursuant to a plan that it intends to satisfy the affirmative defense conditions of Exchange Act Rule 10b5-1(c) and/or  the conditions of the Exchange Act Rule 10b-18 non-exclusive safe harbor. The proposals are subject to a 45-day comment period.

The SEC today proposed a number of rule changes including, among others (at the same meeting the SEC also proposed reforms for company share repurchase plans, money market funds and securities-based swap transactions, which are not covered below), significant changes to the conditions for so-called "10b5-1" trading plans. The proposals are subject to 45 day comment periods. Key terms of the proposed changes include:

• Would add new conditions to the availability of the affirmative defense under Exchange Act Rule 10b5-1(c)(1), including:
  
  
  • Officers and directors must have a 120-day cooling off period before the first trade under a 10b5-1 plan; issuers must have a 30-day cooling off period
  • Officers and directors must certify that they are not aware of material nonpublic information about the issuer or the security when adopting a new or modified trading arrangement
  • The affirmative defense under Rule 10b5-1 does not apply to multiple overlapping Rule 10b5-1 trading arrangements for open market trades in the same class of securities
  • 10b5-1 trading arrangements to execute a single trade are limited to one plan per 12 month period
  • 10b5-1 trading arrangements must be entered into and operated in good faith (essentially adds the concept of operating in good faith not just when entering the plan)
    
    
• Would require enhanced disclosure regarding Rule 10b5-1 plans, option grants, and issuer insider trading policies and procedures, including:
  
  
  • A requirement for an issuer to disclose in its annual reports whether or not (and if not, why not) the issuer has adopted insider trading policies and procedures. Additionally, issuers would be required to disclose their insider trading policies and procedures, if they have adopted such policies and procedures
  • A requirement for an issuer to disclose in its annual reports its option grant policies and practices, and to provide tabular disclosure showing grants made within 14 days of the release of material nonpublic information and the market price of the underlying securities on the trading day before and after the release of such information
  • A requirement for an issuer to disclose in its quarterly reports the adoption and termination of Rule 10b5 1 trading arrangements and other trading arrangements by directors, officers, and issuers, and the terms of such trading arrangements
    
    
• Would update Forms 4 and 5 to require identification of transactions made pursuant to Rule 10b5- 1 plans and to disclose all gifts of securities on Form 4 (as opposed to being allowed to defer until Form 5).

As part of the SEC Division of Corporation Finance’s focus on climate-related disclosure in public company filings, and as a follow up to guidance on this topic issued in 2010, the Division posted an illustrative letter containing sample comments that the Division may issue to companies regarding their climate-related disclosure or the absence of such disclosure. These sample comments impact several sections of company filings, including most significantly management’s discussion and analysis of financial condition and results of operations (MD&A):

General

1. 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.

Risk Factors

2. Disclose the material effects of transition risks related to climate change that may affect your business, financial condition, and results of operations, such as policy and regulatory changes that could impose operational and compliance burdens, market trends that may alter business opportunities, credit risks, or technological changes.
3. Disclose any material litigation risks related to climate change and explain the potential impact to the company.

Management’s Discussion and Analysis of Financial Condition and Results of Operations

4. There have been significant developments in federal and state legislation and regulation and international accords regarding climate change that you have not discussed in your filing. Please revise your disclosure to identify material pending or existing climate change-related legislation, regulations, and international accords and describe any material effect on your business, financial condition, and results of operations.
5. Revise your disclosure to identify any material past and/or future capital expenditures for climate-related projects. If material, please quantify these expenditures.
6. To the extent material, discuss the indirect consequences of climate-related regulation or business trends, such as the following:
   • decreased demand for goods or services that produce significant greenhouse gas emissions or are related to carbon-based energy sources;
   • increased demand for goods that result in lower emissions than competing products;
   • increased competition to develop innovative new products that result in lower emissions;
   • increased demand for generation and transmission of energy from alternative energy sources; and
   • any anticipated reputational risks resulting from operations or products that produce material greenhouse gas emissions.
7. If material, discuss the physical effects of climate change on your operations and results. This disclosure may include the following:
   • severity of weather, such as floods, hurricanes, sea levels, arability of farmland, extreme fires, and water availability and quality;
   • quantification of material weather-related damages to your property or operations;
   • potential for indirect weather-related impacts that have affected or may affect your major customers or suppliers;
   • decreased agricultural production capacity in areas affected by drought or other weather-related changes; and
   • any weather-related impacts on the cost or availability of insurance.
8. Quantify any material increased compliance costs related to climate change.
9. If material, provide disclosure about your purchase or sale of carbon credits or offsets and any material effects on your business, financial condition, and results of operations.

The full letter may be found here.

Yesterday, the SEC announced that, effective October 1, 2021, the fees that public companies and other issuers pay to register their securities with the Commission will be set at $92.70 per million dollars. This is a decrease from the current rate of $109.10/million.

It looks like we can expect more SEC comments on climate change disclosures and likely new guidance or new rules in the not too distant future: https://www.sec.gov/news/public-statement/lee-statement-review-climate-related-disclosure.

The SEC’s Division of Corporation Finance published an "illustrative letter" with sample comments that it may issue to companies seeking to raise capital in securities offerings amid market and price volatility. These will most often apply to companies with (1) recent stock run-ups or recent divergences in valuation ratios relative to those seen during traditional markets, (2) high short interest or reported short squeezes, and (3) reports of strong and atypical retail investor interest (whether on social media or otherwise). However, all companies should review this new guidance as part of their preparations for any upcoming capital raising.

https://www.sec.gov/corpfin/sample-letter-securities-offerings-during-extreme-price-volatility

The sample comments generally call for increased disclosures about:

• recent price volatility and any known risks of investing in the stock under these circumstances.
• the market price of the stock prior to the recent price volatility.
• any recent change in financial condition or results of operations, such as in earnings, revenues or other measure of company value that is consistent with the recent change in stock price. 
• risk factors addressing the recent extreme volatility in stock price, the effects of a potential "short squeeze" due to a sudden increase in demand for the stock, the impact that the offering could have on the stock price and on investors where there is a significant number of shares being offered relative to the number currently outstanding and, to the extent the company expects to conduct additional offerings in the future to fund its operations or provide liquidity, the dilutive impact of those offerings on investors that purchase shares in the offering at a significantly higher price.
• various impacts of the sales price on the use of proceeds.

The SEC has proposed amendments that would mandate electronic filing of Form 144 (currently it may be filed either by mail or electronically), eliminate the requirement to file a Form 144 with respect to sales of securities issued by companies that are not subject to reporting under the Securities Exchange Act of 1934, and amend the Form 144 filing deadline to coincide with the Form 4 filing deadline (currently it is required to be filed concurrently with placing a sell order). If adopted, the SEC would make an online fillable Form 144 available to simplify the process and streamline the filing of Forms 4 and 144 where the seller is required to file both forms.

The amendments would also amend Forms 4 and 5 to add an optional check box to indicate that a reported transaction was intended to satisfy Rule 10b5-1(c), which provides an affirmative defense for trading on the basis of material non-public information in insider trading cases (so-called “10b5-1 plans”).

The SEC also proposed an amendment to Rule 144 to revise the holding period determination for securities acquired upon the conversion or exchange of certain "market-adjustable securities." Currently, Rule 144 deems securities acquired solely in exchange for other securities of the same issuer to have been acquired at the same time as the securities surrendered for conversion or exchange. Under the amendments, the holding period for the underlying securities acquired upon conversion or exchange of "market-adjustable securities" would not begin until conversion or exchange, meaning that a purchaser would need to hold the underlying securities for the applicable Rule 144 holding period before reselling them under Rule 144. The proposed amendment is intended to reduce the risk of unregistered distributions in connection with sales of those securities.

The proposed amendment would not affect the use of Rule 144 for most convertible or variable-rate securities transactions. It would apply only to market-adjustable securities transactions in which:

• The newly acquired securities were acquired from an issuer that, at the time of the conversion or exchange, does not have a class of securities listed, or approved for listing, on a national securities exchange registered pursuant to Section 6 of the Exchange Act; and
• The convertible or exchangeable security contains terms, such as conversion rate or price adjustments, that offset, in whole or in part, declines in the market value of the underlying securities occurring prior to conversion or exchange, other than terms that adjust for stock splits, dividends, or other issuer-initiated changes in its capitalization.

The public comment period will remain open for 60 days following publication of the proposing release in the Federal Register.

The SEC has adopted amendments to Regulation S-K to revise the rules for MD&A and eliminate the requirement for selected financial data in SEC filings. According to the SEC, "The amendments are intended to enhance the focus of financial disclosures on material information for the benefit of investors, while simplifying compliance efforts for registrants."

The amendments will become effective 30 days after they are published in the Federal Register. However, companies are not required to comply with the amended rules until the first fiscal year ending on or after the date that is 210 days after publication in the Federal Register, which means for calendar year fiscal year end companies, these rules will not be mandatory for their 2020 annual reports on 10-K or 20-F. Companies will be required to apply the amended rules in a registration statement and prospectus that on its initial filing date is required to contain financial statements for a period on or after that initial compliance date. Although companies will not be required to apply the amended rules until their mandatory compliance date, they may comply with the final amendments any time after the effective date, so long as they provide disclosure responsive to an amended item in its entirety.

The changes to Items 301, 302, and 303 of Regulation S-K:

• Eliminate Item 301 (Selected Financial Data); and
• Modernizing, simplifying and streamlining Item 302(a) (Supplementary Financial Information) and Item 303 (MD&A) to:
  • Revise Item 302(a) to replace the current requirement for quarterly tabular disclosure with a principles-based requirement for material retrospective changes;
  • Add a new Item 303(a), Objective, to state the principal objectives of MD&A;
  • Amend current Item 303(a)(1) and (2) (amended Item 303(b)(1)) to modernize, enhance and clarify disclosure requirements for liquidity and capital resources;
  • Amend current Item 303(a)(3) (amended Item 303(b)(2)) to clarify, modernize and streamline disclosure requirements for results of operations;
  • Add a new Item 303(b)(3), Critical accounting estimates, to clarify and codify Commission guidance on critical accounting estimates;
  • Replace current Item 303(a)(4), Off-balance sheet arrangements, with an instruction to discuss such obligations in the broader context of MD&A;
  • Eliminate current Item 303(a)(5), Tabular disclosure of contractual obligations, in light of the amended disclosure requirements for liquidity and capital resources and certain overlap with information required in the financial statements; and
  • Amend current Item 303(b), Interim periods (amended Item 303(c)) to modernize, clarify and streamline the item and allow for flexibility in the comparison of interim periods to help registrants provide a more tailored and meaningful analysis relevant to their business cycles.

In addition, the SEC adopted certain parallel amendments to the financial disclosure requirements applicable to foreign private issuers, including to Forms 20-F and 40-F, as well as other conforming amendments to the Commission's rules and forms, as appropriate.