Category Archives: SEC Regulations

Doing our share to prevent faux SEC filings

Working the forensics of last Thursday’s fraudulent SEC regarding an offer to purchase Avon Products is none of our business here at Vintage. We’ll leave that to the SEC. This NYT article has a good review of the news.

faux

Our responsibility is to prevent faux filings BEFORE any bits of bytes reach EDGAR. Here is a simple summary of how we on-board new clients:

For every new client that comes to Vintage we require a New Member Application completed prior to any work being done. This ensures that the responsible party is agreeing to our terms of service, and that we have the correct company and billing contacts on file. When the New Member Application is filled out it comes into Vintage Client Services and we vet the company.

Some major points of that vetting process are…

  • We verbally confirm every application with the applicant.
  • We confirm that the person who filled out the application is associated directly with the organization which is signing up and will be receiving the bills (aka: responsible for payment of invoices generated on that account). If not we obtain permission from the billing entity to process work received from the agency sending in the work.
  • We ask if the Organization has a valid website with contact information matching what is provided on the application and is their email a domain email address.
  • We also crosscheck all information with our Salesforce.com database.
  • If validation cannot be made on information submitted in application our last step is asking for a bill (electric or telephone) that connects the person with the Organization’s address and telephone number (aka: some form of proof).
  • We also ask if they will be working with a law firm or third party and note this on our checklist.

Additionally there is strict policy we have surrounding releasing of any filing entities EDGAR codes. Whenever an entities’ codes are requested that request is forwarded to Vintage Client Services. If it is a telephone call request, we ask they follow up with the request via email for our records. Vintage Client Services will then require that authorization is given to us from an Officer of that company. We ask the same for Individuals, that authorization is received from the individual.

There are many reason companies should use a filing agent. There are even more reasons a company should us Vintage. (Yes, that was a shameless sales plug)

A quick review on shareholder proposals for proxy materials

This year, proxy access has become “the next big thing” within IR and governance discussions. It seems activism, traditionally targeted to mega-caps, has trickled down to all market capitalizations. As we learned last week, even M&A is on the activists’ radar (watch video here),

PROXYACCESSWe’ve worked with many clients on their proxy materials this year – and although Vintage tends to be on the tactical spectrum of the process, strategic and procedural discussion always arise. We try to have the answers – or at least know where to find them.

In summary, in order to have a shareholder proposal included on a company’s proxy card, and included along with any supporting statement in its proxy statement, a shareholder must be eligible and follow certain procedures. Under a few specific circumstances, the company is permitted to exclude a shareholder proposal, but only after submitting its reasons to the Commission.

What is a shareholder proposal?

A shareholder proposal is a shareholder recommendation or requirement that the company and/or its board of directors take action, which that shareholder intends to present at a meeting of the company’s shareholders. A shareholder proposal should state as clearly as possible the course of action that they believe the company should follow.

If a shareholder proposal is placed on the company’s proxy card, the company must also provide in the form of proxy means for all shareholders to specify by boxes a choice between approval or disapproval, or abstention. Unless otherwise indicated, the word “proposal” as used in this section refers both to a shareholder proposal, and to that shareholder’s corresponding statement in support of their proposal.

Who is eligible to submit a proposal, and how does a shareholder demonstrate to the company that they are eligible?

In order to be eligible to submit a proposal, a shareholder must have continuously held at least $2,000 in market value, or 1%, of the company’s securities entitled to be voted on the proposal at the meeting for at least one year by the date a shareholder submits the proposal. A shareholder must continue to hold those securities through the date of the meeting.

If a shareholder is the registered holder, which means that their name appears in the company’s records as a shareholder, the company can verify the shareholder’s eligibility on its own, although the shareholder will still have to provide the company with a written statement that they intend to continue to hold the securities through the date of the meeting of shareholders.

However, if like many shareholders, the shareholder is not a registered holder, the company likely does not know that they are a shareholder, or how many shares that shareholder owns. In this case, at the time a shareholder submit a proposal, they must prove eligibility to the company via a written statement from the “record” holder of the shareholder’s securities or via a filed a Schedule 13D, Schedule 13G, Form 3, Form 4 and/or Form 5 document. 

How many proposals may a shareholder submit? 

Each shareholder may submit no more than one proposal to a company for a particular shareholders’ meeting.

Order or 2015 SEC Reporting Rules here.

Order your free hardcopy 2015 SEC Reporting
Rules Guidebooks here.

How long can a shareholder proposal be? 

The proposal, including any accompanying supporting statement, may not exceed 500 words. 

What is the deadline for submitting a proposal?

If a shareholderis submitting their proposal for the company’s annual meeting, a shareholder can, in most cases, find the deadline in last year’s proxy statement. However, if the company did not hold an annual meeting last year, or has changed the date of its meeting for this year more than 30 days from last year’s meeting, a shareholder can usually find the deadline in one of the company’s quarterly reports on Form 10–Q, or in shareholder reports of investment companies under Rule 30d–1 of the Investment Company Act of 1940. In order to avoid controversy, shareholders should submit their proposals by means, including electronic means that permit them to prove the date of delivery.

Generally, a shareholder proposal must be received at the company’s principal executive offices not less than 120 calendar days before the date of the company’s proxy statement released to shareholders in connection with the previous year’s annual meeting. However, if the company did not hold an annual meeting the previous year, or if the date of this year’s annual meeting has been changed by more than 30 days from the date of the previous year’s meeting, then the deadline is a reasonable time before the company begins to print and send its proxy materials.

 What if a shareholder fails to follow one of the eligibility or procedural requirements?  

The company may exclude a shareholder proposal, but only after it has notified that shareholder of the problem, and that shareholder has failed adequately to correct it. Within 14 calendar days of receiving a shareholder proposal, the company must notify that shareholder – in writing –  of any procedural or eligibility deficiencies, as well as of the time frame for a response. The response must be postmarked, or transmitted electronically, no later than 14 days from the date a shareholder received the company’s notification. A company need not provide a shareholder such notice of a deficiency if the deficiency cannot be remedied, such as if failure to submit a proposal by the company’s properly determined deadline.

Who has the burden of persuading the Commission or its staff that a shareholder proposal can be excluded? 

Except as otherwise noted, the burden is on the company to demonstrate that it is entitled to exclude a proposal.

Must a shareholder appear personally at the shareholders’ meeting to present the proposal?

The shareholder, or their representative who is qualified under state law to present the proposal on the shareholder’s behalf, must attend the meeting to present the proposal. If the company holds its shareholder meeting in whole or in part via electronic media, and the company permits the shareholder or their representative to present the proposal via such media, then that shareholder may appear through electronic media rather than traveling to the meeting to appear in person.

If a shareholder or their qualified representative fail to appear and present the proposal, without good cause, the company will be permitted to exclude all of that shareholder’s proposals from its proxy materials for any meetings held in the following two calendar years.

Vintage16 Reduces Cost and Complexity of SEC Section 16 Compliance for Individuals, Companies and Law Firms

Self-service online portal for insider filings also offer custom, private label option for securities law firms

NEW YORK, April 14 / PR Newswire / — Vintage, the capital markets, corporate services and institutional & fund services division of PR Newswire, today announced they have upgraded Vintage16 for the DIY electronic filing and management of the Securities and Exchange Commission (SEC) Section 16 ownership reports: Forms 3, 4 and 5

V16_logo

Please visit Vintage16 today for more information: www.vintage16.com.

Section 16 ownership reporting require shareholders identified as an insider, or any owners of more than 10%, to electronically file Form 3 with the SEC no later than 10 days after the individual becomes affiliated with the company. If there is a material change in the holdings of the company’s insiders – directors, officers and principal stockholders – they are required to file Form 4 with the SEC. Form 5 must be filed by an insider who has conducted a transaction during the year if it was not previously reported on Form 4.

Built with intuitive and easy-to-use menus, Vintage16 is a Verisign-authenticated secure site with SSL encryption that allows clients to:

  • Register an account and file immediately
  • Easily create, preview and transmit EDGAR-formatted Forms 3, 4, and 5 directly to the SEC
  • Save time with auto-complete function for Forms with Reporting Owner and Issuer profile information
  • Generate Multiple Issuer/Reporting Owner filings
  • Save and re-use drafts and previous submissions
  • Draft, maintain and modify footnotes and exhibits
  • Draft and maintain templates for Power of Attorney
  • Test file to the SEC without any added fees
  • Select a fee structure that matches individual or corporate needs

Custom, private label flexibility offers law firms brand customization and in-house client service

Effectively managing the administration of Section 16 reporting across the entire corporate client-base – which can encompass hundreds of reporting individuals – can be complicated. Vintage16 enables securities law firms to bring the reporting process in-house, offering their corporate clients turn-key, customized service.

Liam Power, President of Vintage, explained the increased interest law firms have shown towards bringing Section 16 reporting in-house:

“Securities law firms are continually looking to mitigate regulatory risk for their clientele. Ensuring the proper filing of insider transactions is a simple and smart administrative value-add for these firms. Certainly, Section 16 reports are not complicated EDGAR filings, but they have to be filed correctly – especially since Forms 4s must be filed the second business day following the transaction’s date.” 

“Vintage16’s easy-to-navigate workflow allows any reporting individual to DIY self-file. However, assigning the law firm as the responsible party can be a real stress reliever for many issuers.”

Vintage16 offers a la carte and volume prices, further demonstrating Vintage’s position as the industry’s intelligent value.

Please visit Vintage16 today for more information: www.vintage16.com.

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About Vintage

Vintage, a PR Newswire division, is a top-three provider of full-service regulatory compliance and shareholder communications services, delivered across our three practice areas: Capital Markets, Corporate Services and Institutional & Fund Services.

Founded in 2002 and acquired by PR Newswire in 2007, Vintage has evolved to become the industry’s intelligent value choice. We deliver a flexible balance of people, facilities and technology to ensure that regulatory compliance and shareholder communications processes are efficient, transparent and painless. Services include IPO registrations, transactions, virtual data rooms, EDGAR & XBRL filing, typesetting, financial printing and investor relations websites. www.thevintagegroup.com

About PR Newswire

PR Newswire (www.prnewswire.com) is the premier global provider of multimedia platforms that enable marketers, corporate communicators, sustainability officers, public affairs and investor relations officers to leverage content to engage with all their key audiences. Having pioneered the commercial news distribution industry 60 years ago, PR Newswire today provides end-to-end solutions to produce, optimize and target content — from rich media to online video to multimedia — and then distribute content and measure results across traditional, digital, mobile and social channels. Combining the world’s largest multi-channel, multi-cultural content distribution and optimization network with comprehensive workflow tools and platforms, PR Newswire enables the world’s enterprises to engage opportunity everywhere it exists. PR Newswire serves tens of thousands of clients from offices in the Americas, Europe, Middle East, Africa and the Asia-Pacific region, and is a UBM plc company. www.prnewswire.com

Media Contact:

Bradley H. Smith
Director of Marketing, IR and Compliance Services
PR Newswire & Vintage
+1 201.942.7157
bradley.smith@prnewswire.com

SEC approves Mini-IPO for raising ~ dundundunnnn ~ 50 million dollars!

Yesterday, the SEC approved the final rules for the implementation of Title IV of the JOBS Act’s Regulation A+  which allows start-ups and emerging growth companies (EGC) to crowdfund a $50 million mini-IPO with the general public… not just raise funds from qualified (accredited) investors per Regulation D offerings.

miniipo

Until yesterday, EGCs could only raise $5 million in a public offering via Regulation A (no “+”). Reg A also had other roadblocks including most states requiring their own individual Blue Sky Law adherence.

Regulation A+ has increased the raise to $50 million and removed the necessity for individual state compliance. 

The “who” can invest is key. EGCs were locked to work with accredited investors – individuals who earn more than $200K per year or have a net worth over $1M. Regulation A+ allows anyone to invest 10 percent of their annual income or net worth – but no more. The SEC will be carefully monitoring for fraud and bad actors.

Read the SEC regulations here. 

Certainly, this increase in cash will help companies work and earn their way to a “regular-sized” IPO. Vintage will be ready to help guide that journey. 

No news on the SEC’s progress getting sharks with frikin’ laser beams attached to their heads.

Keep Notice & Access in check with the SEC

Much like the first crocus blooms, Spring also blooms an uncompromising reminder to public companies about the tactical requirements surrounding the shareholder communications of their annual report and proxy materials. Each year, we help our clients with some or all of the different parts of these requirements.

SEC-logo-checkmark

Unless the issuer chooses to hardcopy print and mail the full annual report and proxy materials to all their shareholders by default, they can select to follow the SEC’s 2009 Notice of Internet Availability of Proxy Materials process. Generally called “Notice and Access,” this simply means an issuer can, 40 days prior to the annual shareholder meeting, ask investors – via a mailed card –  if they want to continue receiving hardcopy versions of the annual report and proxy materials or switch to online only. Public companies send a “notice” asking shareholders how they want “access” to the materials. 

Check these points each year:

  • All materials identified in the Notice of Internet Availability of Proxy Materials must be publicly accessible, free of charge, at the website address specified in the notice on or before the time that the notice is sent to the shareholder and all materials must remain available on that website through the conclusion of the annual shareholder meeting
  • All additional soliciting materials sent to shareholders, or made public after the Notice of Internet Availability of Proxy Materials has been sent, must be made publicly accessible at the specified website address no later than the day on which such materials are first sent to shareholders or made public.
  • The website address relied upon for compliance under this section can not be the SEC website
  • The issuer must provide shareholders with a means to execute a proxy as of the time the Notice of Internet Availability of Proxy Materials is first sent
  • The materials must be presented on the website in a format, or formats, convenient for both reading online and printing on paper

The Notice of Internet Availability of Proxy Materials must contain the following:

  • A prominent legend in bold-face type that states “Important Notice Regarding the Availability of Proxy Materials for the Shareholder Meeting To Be Held on [insert meeting date]” 
  • An indication that the communication is not a form for voting and presents only an overview of the more complete proxy materials, which contain important information and are available on the Internet or by mail, and encouraging a security holder to access and review the proxy materials before voting
  • The website address where the proxy materials are available
  • Instructions regarding how a security holder may request a paper or e-mail copy of the proxy materials at no charge, including the date by which they should make the request to facilitate timely delivery, and an indication that they will not otherwise receive a paper or e-mail copy
  • The date, time, and location of the meeting, or if corporate action is to be taken by written consent, the earliest date on which the corporate action may be effected
  • A clear and impartial identification of each separate matter intended to be acted on and the soliciting person’s recommendations, if any, regarding those matters, but no supporting statements
  • A list of the materials being made available at the specified website
  • A toll-free telephone number, an e-mail address, and an Internet Web site where the security holder can request a copy of the proxy statement, annual report to security holders, and form of proxy, relating to all of the registrant’s future security holder meetings and for the particular meeting to which the proxy materials being furnished relate
  • Any control/identification numbers that the security holder needs to access his or her form of proxy
  • Instructions on how to access the form of proxy, provided that such instructions do not enable a security holder to execute a proxy without having access to the proxy statement and, if required by Rule 14a-3(b), the annual report to security holders
  • Information on how to obtain directions to be able to attend the meeting and vote in person

Except for a pre-addressed, postage-paid reply card for requesting a copy of the proxy materials, the Notice of Internet Availability of Proxy Materials may not be incorporated into, or combined with, another document, except that it may be incorporated into, or combined with, a notice of security holder meeting required under state law, unless state law prohibits such incorporation or combination.

Materials must be presented in plain English:

To enhance the readability of the Notice of Internet Availability of Proxy Materials, the registrant must use plain English principles in the organization, language, and design of the notice: at a minimum, it substantially complies with each of the following plain English writing principles:

  • Short sentences
  • Definite, concrete, everyday word
  • Active voice
  • Tabular presentation or bullet lists for complex material, whenever possible
  • No legal jargon or highly technical business terms
  • No multiple negatives
  • I2015_booksn designing the Notice of Internet Availability of Proxy Materials, the registrant may include pictures, logos, or similar design elements so long as the design is not misleading and the required information is clear.

FOR COMPLETE DETAILS ON THIS, I SUGGEST YOU REQUEST OUR 2015 SEC REPORTING RULES GUIDEBOOK SET > CLICK HERE. IT CONTAINS 300 PAGES ON PROXY STATEMENTS.  

The 2015 edition of the SEC Reporting Rules include Form SD – for guidance on conflict minerals

Timing is everything. Helping a client yesterday, the discussion of conflict minerals rose – followed by a discussion of needing a Form SD. The good karma of Saul Ewing LLP added a complete new section on Form SD into the 2015 SEC Reporting Rules books. It’s a great resource.

You can request a free set to be mailed to you here.

Certainly, conflict minerals is a messy political, ethical and business arena. The points to share now that were most germane from the conservation yesterday are the following, high-level definitions:

It's a complicated world. These guides can help.

It’s a complicated world. These guides can help.

  • Adjoining country: The term adjoining country means a country that shares an internationally recognized border with the Democratic Republic of the Congo.
  • Armed group: The term armed group means an armed group that is identified as a perpetrator of serious human rights abuses in annual  country Reports on Human Rights Practices under sections 116(d) and 502B(b) of the Foreign Assistance Act of 1961 relating to the Democratic Republic of the Congo or an adjoining country.
  • The term conflict mineral means:
    • Columbite-tantalite (coltan), cassiterite, gold, wolframite, or their derivatives, which are limited to tantalum, tin, and tungsten, unless the Secretary of State determines that additional derivatives are financing conflict in the Democratic Republic of the Congo or an adjoining country; or
    • Any other mineral or its derivatives determined by the Secretary of State to be financing conflict in the Democratic Republic of the Congo or an adjoining country.
  • DRC conflict free. The term DRC conflict free means that a product does not contain conflict minerals necessary to the functionality or production of that product that directly or indirectly finance or benefit armed groups in the Democratic Republic of the Congo or an adjoining country. Conflict minerals that a registrant obtains from recycled or scrap sources are considered DRC conflict free.
  • DRC conflict undeterminable. The term DRC conflict undeterminable means, with respect to any product manufactured or contracted to be manufactured by a registrant, that the registrant is unable to determine, after exercising due diligence, whether or not such product qualifies as DRC conflict free.
  • Conflict Minerals from Recycled or Scrap Sources. Conflict minerals are considered to be from recycled or scrap sources if they are from recycled metals, which are reclaimed end-user or post-consumer products, or scrap processed metals created during product manufacturing. Recycled metal includes excess, obsolete, defective, and scrap metal materials that contain refined or processed metals that are appropriate to recycle in the production of tin, tantalum, tungsten and/or gold. Minerals partially processed, unprocessed, or a bi-product from another ore will not be included in the definition of recycled metal.
  • Outside the Supply Chain. A conflict mineral is considered outside the supply chain after any columbite-tantalite, cassiterite,  and wolframite minerals, or their derivatives, have been smelted; any gold has been fully refined; or any conflict mineral, or its derivatives, that have not been smelted or fully refined are located outside of the Democratic Republic of the Congo or an adjoining country.
  • Nationally or internationally recognized due diligence framework. The term “nationally or internationally recognized due diligence framework” means a nationally or internationally recognized due diligence framework established following due-process procedures, including the broad distribution of the framework for public comment, and is consistent with the criteria standards in the Government Auditing Standards established by the Comptroller General of the United States.

Work with your counsel if this is a topic that affects your organization. The list above is merely the vocabulary you will need to know. 

Have a great day.

2015 SEC Reporting Rules Guidebooks are in: Forms 10-K, 10-Q, 8-K, SD and Proxy Statements

We are pleased to provide you with our annual updated editions of the SEC Reporting Rules for Forms 10-K, 10-Q, 8-K, SD and SEC Reporting Rules for Proxy Statements.

2015_books

 

These publications are an excellent reference source for legal and accounting professionals and corporate executives.

  • FREE
  • 680 pages
  • Up-to-date for 2015 including in-depth information on Form SD
  • Detailed table-of-contents for quick reference

In addition to outlining the applicable laws, regulations and rules, these guidebooks seek to provide practical guidance reflecting, among other things, interpretive guidance issued by the Securities and Exchange Commission, general industry practice and the authors’ experience. In addition, we eliminate many cumbersome citations and provide “plain English” rule references.

CLICK HERE: These are printed guidebooks. There are no fees to receive these resources. Please expect a call to confirm your shipping address.  

Thank you and have a nice weekend.