Expected CDI Change

News Brief

By Cydney Posner

For those of you (like me) who followed the SEC staff's guidance and included biographical disclosure about non-continuing directors in your 10-K (or for incorporation into your 10-K thorough your proxy), turns out that you can feggudaboudit. The corporatecounsel.net blog reports this morning that Corp fin intends to withdraw that CDI, which was issued just last month. Apparently, at the "Dialogue with the Director" session at last week's ABA Spring Meeting in Boston, Corp Fin Director Meredith Cross said that the staff plans to withdraw Reg S-K CDI 116.08, which says that Instruction 3 to Item 401(a) of Reg S-K applied only to proxy statements, not 10-Ks, with the result that, to satisfy the Form 10-K disclosure requirements, companies needed to include Item 401(a) and (e) disclosures for non-continuing directors either directly in Part III of Form 10-K or incorporated by reference into Part III from the proxy statement. "Going forward, the Staff's position will be that biographical information for a non-continuing director need not be included in a proxy statement incorporated by reference into Part III of Form 10-K (in reliance on Instruction 3 to Item 401(a))[;] however an issuer that is including the Part III information directly in the Form 10-K (and thus does not have the benefit of Instruction 3 to Item 401(a)) would have to include the Item 401(a) and (e) information about the non-continuing director in the Form 10-K. Revised Regulation S-K C&DIs are expected out soon."

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