By Cydney Posner

To clear up some of the confusion surrounding the effective date of the new enhanced proxy disclosure rules, Corp Fin has just issued several new CD&Is regarding transition.  It now appears that, per the original News Brief on 12/16 regarding the adoption of the rules at the open meeting, there is a transitional effectiveness date for fiscal years ending on or after December 20, 2009, even though the release does not so state and mentions the December 20 date only once (in connection with recomputing prior years data in the SCT).

  • If the issuer's fiscal year ends on or after December 20, 2009:
    • its Form 10-K and proxy statement must be in compliance with the new proxy disclosure requirements if filed on or after February 28, 2010
    • its preliminary proxy statement must be in compliance with the new proxy disclosure if it expects to file its definitive proxy statement on or after February 28, 2010, even if the prelim is filed before February 28, 2010
    • its proxy statement, if filed on or after February 28, 2010, must be in compliance with the new proxy disclosure requirements, even if it files its 2009 Form 10-K before February 28, 2010
  • If the issuer's fiscal year ends before December 20, 2009, its 2009 Form 10-K and related proxy statement are not required to be in compliance with the new proxy disclosure requirements, even if filed on or after February 28, 2010
  • An issuer may comply with the new disclosure requirements for its 2009 Form 10-K and related proxy statement on a voluntary and discretionary basis, with one qualification: the issuer may voluntarily comply with the Summary Compensation Table and Director Compensation Table amendments only if it also complies with all other Reg S-K amendments adopted in the Proxy Disclosure Enhancements Release that apply to the form filed, such as the risk disclosure and director qualifications. It may provide the other new disclosures without having to comply with all of the new requirements
  • A reporting issuer with a 2009 fiscal year that ends before December 20, 2009 will not be required to comply with the Reg S-K amendments until the filing of its Form 10-K for fiscal year 2010.  As a result, any Securities Act or Exchange Act registration statements for that registrant filed before the 2010 Form 10-K is required to be filed would not be subject to the Reg S-K amendments
  • A new registrant for an IPO or Form 10 that first files its registration statement on or after December 20, 2009, will be required to comply with the Reg S-K amendments for that registration statement in order for it to be declared effective on or after February 28, 2010
  • New Item 5.07 of Form 8-K is effective February 28, 2010. Any shareholder meeting that takes place on or after February 28, 2010 is subject to the new Form 8-K Item 5.07 reporting requirement, even if the proxy statement for the meeting was mailed to shareholders before that date.  If the meeting takes place before February 28, 2010, an Item 5.07 Form 8-K is not required

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