The spooky topic for this article is…Annual Reporting Season! While it may send chills down your spine to think about this too early, there are some tasks that can be done after the third quarter 10-Q has been filed that will make your life easier this winter.
D&O Questionnaires
When was the last time your annual director and officer questionnaire was updated?
- There have been changes in NYSE and Nasdaq rules in recent years that may need to be incorporated into the questionnaire to ensure it captures the right information.
- Nasdaq-listed companies in particular will need to make sure their questionnaire is tailored to allow for the self-reporting required for the board diversity matrix (For details see the Nasdaq’s New Board Diversity Requirements article in this newsletter).
- Did any questions last year trip up respondents? Can you make those questions more user-friendly?
- Is there anything that can be pre-populated before the questionnaire goes out to officers and directors?
- Are your questionnaires in an online format to make it easier for officers and directors to complete?
Annual Meeting Timetable
Starting with a proposed annual meeting date and working backwards to schedule deadlines for the many workstreams involved in the annual meeting can help your team stay organized throughout one of the busiest times of year and eliminate last-minute surprises. Consider including the following in your timetable:
- Board and committee meetings relating to annual meeting approvals.
- Critical deadlines, such as (i) the record date, (ii) broker search deadline, (iii) dates to deliver materials to your financial printer, (iv) last date to file the proxy statement to incorporate information by reference into the Form 10-K, and (v) last date to file the proxy statement to be able to use notice and access.
- Target dates to send drafts to outside experts and to receive comments back from them.
- Section 16-related tasks: (i) Form 5 deadline; (ii) Schedule 13D or 13G deadline, and (iii) if tied to year-end reporting or meetings, any planned equity grants requiring Section 16 reports.
Form 10-K
While the Annual Report on Form 10-K reports results for the full fiscal year, there is no reason to wait until January 1, 2022 to update certain sections. Consider whether the following can be tackled in the waning months of the year:
- Risk Factors
- Is your business facing any new risks?
- Are supply chain difficulties, labor shortages, or inflation impacting your business?
- Is your COVID-19 risk factor outdated?
- Have you addressed material cyber and data security risks?
- As discussed elsewhere in this newsletter, the SEC will likely be focusing on climate change disclosure. Are there any climate change risks that are material to your business?
- Regulatory Disclosure
- If your business is in a highly regulated industry, like banking or biotech, consider investing time into bringing forward that disclosure now instead of when you may be pulled in many more directions.
- As part of this research, identify and flag any issues that may be up for regulatory or legislative action before the 10-K is due.
- Human Capital Resources
- Last year was the first for this type of disclosure in the business section.
- Did you have stockholder engagement on this new disclosure?
- Are there any elements you can add in advance of having year-end data?
- Can you arrange to collect data that investors may be looking for?
- MD&A
- With the full implementation of the new rules (For more information see our LEGALcurrents – SEC Adopts Amendments to Update MD&A), is there anything that can be removed from the 10-K?
- Delinquent Section 16 Reports
- Were any Section 16 reports filed late during the year?
- Making a list of the number of delinquent reports and the number of late transactions for each filer can be done in advance, so you only need to drop in the information (or remove the section from your Form 10-K or proxy statement).
The one thing we can always count on is change, so having even a few of these items ready in advance may give you more bandwidth to handle emergencies that may arise during annual reporting season.