United States: SEC Adopts Dodd-Frank Act Hedging Disclosure Rule

On December 18, 2018, the SEC adopted amendments to its rules to implement Section 955 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act”), which added new Section 14(j) to the Securities Exchange Act of 1934, as amended (the “Exchange Act”).1 As adopted, new paragraph (i) of Item 407 of Regulation S-K requires a company to describe any practices or policies it has adopted (whether written or not) regarding the ability of its employees (including officers) or directors, or any of their designees, to purchase financial instruments (including prepaid variable forward contracts, equity swaps, collars and exchange funds) or otherwise engage in transactions that hedge or offset, or are designed to hedge or offset, any decrease in the market value of company equity securities granted as compensation of the employee or director, or held, directly or indirectly, by the employee or director. A company is required to provide a fair and accurate summary of the practices or policies that apply, including the categories of persons covered and any categories of hedging transactions that are specifically permitted and any categories that are specifically disallowed. Alternatively, the company is required to disclose the practices or policies in full. If a company does not have any such practices or policies, the company must disclose that fact or state that hedging transactions are generally permitted.

Companies that are not foreign private issuers, listed closed-end investment companies, smaller reporting companies, or emerging growth companies must begin complying with the new disclosure requirement specified in Item 407(i) of Regulation S-K in proxy statements or information statements with respect to the election of directors during fiscal years beginning on or after July 1, 2019. Companies that qualify as smaller reporting companies or emerging growth companies must comply with the new disclosure requirement specified in Item 407(i) of Regulation S-K in proxy statements or information statements with respect to the election of directors during fiscal years beginning on or after July 1, 2020. The disclosure is not required for foreign private issuers or listed closed-end investment companies.

Background of the New Hedging Disclosure Requirement

Exchange Act Section 14(j) directed the SEC to require each issuer to disclose in any proxy or consent solicitation material for an annual meeting of shareholders whether any employee or member of its board of directors, or any designee of such employee or director, is permitted to purchase financial instruments (including prepaid variable forward contracts, equity swaps, collars and exchange funds) that are designed to hedge or offset any decrease in the market value of equity securities: (1) granted to the employee or director by the issuer as part of the compensation of the employee or director; or (2) held, directly or indirectly, by the employee or director.

The SEC proposed to adopt new paragraph (i) of Item 407 of Regulation S-K in February 2015.2 The SEC considered the report issued by the Senate Committee on Banking, Housing, and Urban Affairs with regard to Section 955 of the Dodd-Frank Act, and noted that the additional disclosure required by the proposed amendments would “provide transparency” to shareholders “to know if executives are allowed to purchase financial instruments to effectively avoid compensation restrictions that they hold stock long-term, so that they will receive their compensation even in the case that their firm does not perform.” The SEC received 22 comments on the proposal. Comments received by the SEC were largely supportive of the proposed amendments and their objectives.

Prior to the adoption of these amendments, many public companies adopted hedging policies (either as part of their insider trading policies or on a standalone basis), and have disclosed the existence of such policies in the Compensation Discussion and Analysis section of their proxy statement.3

In the adopting release, the SEC notes that the final rule amendments do not direct companies to have practices or policies regarding hedging, or dictate the content of any such practice or policy.

The New Hedging Disclosure Requirement: Item 407(i) of Regulation S-K

As adopted, Item 407(i) of Regulation S-K requires a company to describe any practices or policies it has adopted (whether written or not) regarding the ability of its employees (including officers) or directors of the company, or any of their designees, to purchase financial instruments (including prepaid variable forward contracts, equity swaps, collars and exchange funds) or otherwise engage in transactions that hedge or offset, or are designed to hedge or offset, any decrease in the market value of company equity securities granted as compensation of the employee or director, or held, directly or indirectly, by the employee or director. 

What disclosure is required?

A company is required to provide either:

  • a fair and accurate summary of the practices or policies (whether written or not) that apply, including the categories of persons covered and any categories of hedging transactions that are specifically permitted and any categories that are specifically disallowed; or
  • disclosure of the practices or policies in full.

If a company does not have any practices or policies regarding hedging, then the company must:

  • disclose that the company does not have any practices or policies regarding hedging; or
  • state that hedging transactions are generally permitted.

Item 407(i) does not require disclosure in the annual meeting proxy statement or information statement of any hedging transactions that have occurred.  In the adopting release, the SEC indicates that such disclosure would be repetitive, considering a company’s existing Section 16 reporting requirements.

Which companies are subject to the disclosure requirement?

Disclosure pursuant to Item 407(i) of Regulation S-K will be required of all companies with securities registered under Section 12 of the Exchange Act (including smaller reporting companies and emerging growth companies), except that foreign private issuers and listed closed-end investment companies are not required to provide the disclosure.

Where is the disclosure required?

The disclosure specified in Item 407(i) of Regulation S-K is required to be disclosed in a proxy statement or information statement when action is to be taken with respect to the election of directors. The new disclosure will not be required in the Form 10-K Part III disclosure, even if that disclosure is incorporated by reference from the company’s definitive proxy statement or information statement.

Which categories of persons are covered under the rule amendments?

Item 407(i) of Regulation S-K requires the disclosure of practices or policies regarding the ability of a company’s employees (including officers) or directors, or any of their designees to purchase securities or other financial instruments, or otherwise engaging in transactions, that hedge or offset, or are designed to hedge or offset, any decrease in the market value of equity securities granted as compensation or held, directly or indirectly, by the individual. In this regard, the rule is broader in application than Item 402(b)(2)(xiii) of Regulation S-K, which is limited to disclosure of hedging policies applicable to the company’s named executive officers.

The SEC did not define the term “designee” for the purpose of the rule amendments, explaining in the adopting release that whether someone is a designee of an employee or director is to be determined by the company based on the particular facts and circumstances of the relationship.

What financial instruments are covered under the rule amendments?

Exchange Act Section 14(j) refers to financial instruments “that are designed to hedge or offset any decrease in the market value.” Consistent with Exchange Section 14(j), the term “financial instruments” includes, but is not limited to, prepaid variable forward contracts, equity swaps, collars and exchange funds. The rule is not limited to transactions in financial instruments, however, and in fact extends to any transactions “that hedge or offset, or are designed to hedge or offset, any decrease in the market value of registrant equity securities.”

Did the SEC define the terms “hedge” or “hedging”?

The SEC did not define the terms “hedge” or “hedging” in the final rule amendments. In the adopting release, the SEC referred to the language of Exchange Act Section 14(j) and noted that, for purposes of the disclosure requirements, “hedging” should be applied by companies “as a broad principle,” and that the term applies to transactions with the same economic effects as the transactions specified in Exchange Act Section 14(j). As such, a company must “make its own judgments” when determining whether transactions are subject to the new disclosure requirements.

What “equity securities” are contemplated by the rule amendments?

As proposed, the rule amendments would have used the term “equity securities.” The final rule amendments clarify the scope of Item 407(i) disclosure by expanding the term “equity securities” to “registrant equity securities.” Registrant equity securities include equity securities issued by the company and its parents, subsidiaries or subsidiaries of the registrant’s parents. In the adopting release, the SEC notes that the required disclosure is not limited to registrant equity securities that are registered under Section 12 of the Exchange Act. If a company has a practice or policy with respect to different classes of equity securities, the company’s disclosure should  reflect those distinctions.

How does the new disclosure requirement relate to the existing Compensation Discussion and Analysis disclosure requirement?

The disclosure required by new Item 407(i) must be included in a proxy statement or information statement when action is to be taken with respect to the election of directors. Noting that Item 402(b) of Regulation S-K requests the disclosure of policies regarding hedging by named executive officers and that the two distinct disclosure requirements could lead to repetition in the proxy statement or information statement, the SEC adopted new Instruction 6 to Item 402(b) of Regulation S-K, which indicates that a company may satisfy the Item 402(b) disclosure requirement by cross-referencing the information disclosed pursuant to new Item 407(i), to the extent that the information disclosed pursuant to new Item 407(i) satisfies the requirement.

Remaining Dodd-Frank Act Compensation and Governance Rulemaking

While the SEC has now adopted Item 407(i) of Regulation S-K nearly eight and a half years after the enactment of the Dodd-Frank Act, two other rulemakings that would be generally applicable to many public companies and that were also directed by the Dodd-Frank Act have not yet been adopted. Section 953(a) of the Dodd-Frank Act directed the SEC to adopt rules requiring disclosure of the relationship between executive compensation actually paid and the financial performance of the company, and the SEC proposed implementing rules on April 29, 2015. Section 954 of the Dodd-Frank Act requires the SEC to adopt rules directing the national securities exchanges and national securities associations to prohibit the listing of any security of an issuer that is not in compliance with applicable requirements for disclosure of the issuer’s policy on incentive-based compensation and recovery of incentive-based compensation that is received in excess of what would have been received under an accounting restatement; the SEC proposed implementing rules on July 1, 2015. The SEC’s latest rulemaking agenda, submitted under the Regulatory Flexibility Act in the fall of 2018, categorized both of these rulemakings as “long-term actions,” which indicates that the rulemakings are not considered imminent and in the final rule stage.  In January 2018, Chairman Clayton acknowledged that it was the SEC’s obligation to adopt the Dodd-Frank Act rules, and he said that the Commission would do so, but would be flexible “in timing, in sequence and in content. ”4

Footnote

1 Disclosure of Hedging by Employees, Officers and Directors, SEC Release No. 33-10593 (December 20, 2018),  available at here.

2 Disclosure of Hedging by Employees, Officers and Directors, SEC Release No. 33-9723 (February 9, 2015), available here.

3 Item 402(b)(2)(xiii) of Regulation S-K requires disclosure in the Compensation Discussion and Analysis of “the registrant’s equity or other security ownership requirements or guidelines (specifying applicable amounts and forms  of ownership), and any registrant policies regarding hedging the economic risk of such ownership.” The Compensation Discussion and Analysis disclosure specifically covers the compensation of the company’s “named executive officers,” as defined in Item 402(a)(3) of Regulation S-K.

4 Remarks of SEC Chairman Jay Clayton at the Northwestern Law Securities Regulation Institute (January 22, 2018), available here.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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