Year-End Tool Kit

Required Reading

Disclosure Updates

Nasdaq

NYSE

Calendars

Comp Worksheets

REITs

The Industry Standard in D&O Questionnaires

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THE GOODWIN YEAR-END AND PUBLIC COMPANY TOOL KIT

UPDATE – NEW FORM 10-Q FORM CHECK AVAILABLE (APRIL 14, 2022)

We have posted a new form check table to assist with preparation and review of Form 10-Q quarterly reports for first quarter 2022 reporting. This provides a detailed analysis of applicable disclosure requirements, with notes on relevant regulatory guidance and current disclosure considerations.

The Form 10-Q form check table is part of a growing group of tools that make your SEC reporting easier and more efficient throughout the year. Earlier this year we posted form check tables for Form 10-K annual reports and proxy statements, as well as related Form 10-K materials. You can find these in the 2022 Updates section below.

Later this year we will post materials for Foreign Private Issuers. These will include a Form 20-F form check table and a director and officer questionnaire for use by Foreign Private Issuers as part of their year-end reporting. Follow @GoodwinLaw and #GoodwinYETK on Twitter or check this page as we expand our Year-End Tool Kit into the Goodwin Public Company Tool Kit.

The 2021-2022 Year-End Tool Kit contains the following sections:

As always, we hope our Year-End Tool Kit makes your year-end reporting and annual meeting preparation more efficient and effective. Please feel free to contact us with any questions.

For 2022 Reporting, 2022 Annual Meetings and 2021 Year-End Reporting

Goodwin’s 2021-2022 Year-End Tool Kit is designed to help our public company clients prepare for 2022 quarterly reporting, the 2022 proxy season and annual meetings and 2021 year-end reporting.

NEW: FORM 10-Q, PROXY STATEMENT AND FORM 10-K FORM CHECK TABLES AND RELATED MATERIALS

We are expanding the Year-End Tool Kit to make it an essential resource for public companies throughout the year. We have posted form check tables for Form 10-Q quarterly reports, proxy statements for typical annual meetings and Form 10-K annual reports. Later this year we will post a form check table for Form 20-F annual reports and a director and officer questionnaire for Foreign Private Issuers. You can find these in the 2022 UPDATES section below.

DIRECTOR DIVERSITY UPDATE TO GENERAL DIRECTOR AND OFFICER QUESTIONNAIRE

Includes director diversity questions required for companies that are Nasdaq-listed and/or California-based and optional for companies that are neither Nasdaq-listed nor California-based.

In August 2021 the U.S. Securities and Exchange Commission approved Nasdaq’s board diversity rules that require Nasdaq-listed public companies to disclose the gender and demographic diversity of their directors during 2022. Nasdaq has published the following deadlines for Nasdaq-listed companies:

if the company files its 2022 proxy statement before August 8, 2022 and does not include the Board Diversity Matrix, the company has until August 8, 2022 to provide the Board Diversity Matrix either (a) on the company’s website or (b) in an amended annual report (such as on Form 10-K or 20-F);
if the company files its 2022 proxy statement on or after August 8, 2022, it must either include the Board Diversity Matrix in its proxy company statement or post the Board Diversity Matrix on its website within one business day of filing its proxy statement; and
if the company does not intend to file a proxy statement in 2022, the company has until August 8, 2022 to provide the Board Diversity Matrix on its website.

For additional information, please review our alert on the Nasdaq amendments and the instructions contained in the general Director and Officer Questionnaire. Nasdaq-listed companies should note, among other things, that Nasdaq rules require disclosure of the board diversity matrix in the format specified by Nasdaq rules, without changes. If a company wishes to present supplemental disclosure about director skills, background and other matters, the company must present this information separately (for example, in text or a table below the Nasdaq-format diversity matrix).

In addition, “California-based publicly traded companies” are likely subject to the gender diversity requirements of California Senate Bill 826 and the demographic diversity requirements of Assembly Bill 929. “California based” includes any public company that has outstanding shares listed on a “major United States stock exchange” and shows a California address as the address of its principal executive offices on the cover page of its Annual Report on Form 10-K for that year. The California Secretary of State has published guidance stating that “publicly traded” includes companies with securities listed on the New York Stock Exchange, the Nasdaq Stock Market and NYSE American exchange (formerly known as AMEX or the American Stock Exchange).

Compliance with the Nasdaq and California board diversity requirements can be complex. The information on this website, and other pages linked from this website, are not legal advice and should not be relied on as legal advice. Companies that may be subject to these California laws should consult with a Goodwin lawyer who is admitted in California or other California counsel.

Please note especially that the questions in the general Director and Officer Questionnaire under Section I, “Director Diversity,” are not suitable for (1) foreign private issuers, (2) any company that has its principal executive offices located outside the United States or (3) any other company if the company or any of its directors may be subject to or protected by any legal or regulatory requirements related to the privacy or confidentiality of any personal information of any of the company’s directors in any jurisdiction outside the United States, and should not be used by any of these companies without prior review by qualified legal counsel in each such jurisdiction. If there are questions about the company’s use of any of the questions in Section I, the company should obtain the advice of qualified legal counsel.

The 2021-2022 Year-End Tool Kit contains the following sections:

2022 Updates
Nasdaq Companies: basic director and executive officer questionnaires
NYSE Companies: basic director and executive officer questionnaires
Calendars: comprehensive Public Company Annual Timetable and shorter SEC Filing Deadlines and Holiday Calendar
REITs
Supplemental Director and Officer Questionnaires
SEC Compensation Disclosure Worksheets: versions for Smaller Reporting Companies/Emerging Growth Companies and all other reporting companies

As always, we hope our Year-End Tool Kit makes your year-end reporting and annual meeting preparation more efficient and effective. Please feel free to contact us with any questions.

For regular updates on Year-End Toolkit, follow #GoodwinYETK on Twitter.

Required Reading – Recent Client Alerts

Alert

California Law Requiring Female Directors on Public Company Boards Held Unconstitutional

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New Rules for Proxy Contests: SEC Adopts Mandatory Universal Proxy Rules

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OSHA’s Emergency Temporary Standard: A Practical Guide for Employers

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ESG Shareholder Proposals Will be More Difficult to Exclude After SEC Staff Interpretive Reversal

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Key Provisions of the OSHA Standard for Vaccination, Testing and Face Coverings Related to COVID-19

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Five Key Takeaways From EEOC’s Updated Guidance on Religious Objections to COVID-19 Vaccine Mandates

Q+A WITH GOODWIN’S ERISA LITIGATION GROUP

Goodwin Insights

ERISA Litigation Update

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United Food’s “New” Delaware Demand Futility Test: The More Things Change, the More They Stay the Same

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“We had a lot of positive response to the D&O process this year. This tool is awesome! The product was so much better than any we have used in the past. Keeping things simple is key for these busy execs.”

– GC of a Nasdaq-listed company

2022 Disclosure Updates

Form 10-Q Form Check Table (Acrobat) - line by line-review of Form 10-Q compliance and disclosure matters
Form 10-Q Form Check Table (Word)

Proxy Statement Form Check Table (Acrobat) - line-by-line review of proxy statement compliance and disclosure matters
Proxy Statement Form Check Table (Word)

Form 10-K Form Check Table (Acrobat) - line-by-line review of Form 10-K compliance and disclosure matters
Form 10-K Form Check Table (Word)

Form 10-K Compliance Guide - discussion of SEC rule changes and technical compliance matters, trending disclosure topics and business update issues

Form 10-K Compliance Checklist - summary of Form 10-K disclosure updates and trends

Nasdaq Companies

The documents below have been prepared to assist Nasdaq-listed companies with 2021 year-end reporting and 2022 annual meetings. The questionnaires under "Information Gathering Tools" may be supplemented with some or all of the questionnaires in the Supplemental Director and Officer Questionnaires section.

Director and Officer Questionnaire (General)*

Nasdaq Director Independence and Audit/Compensation Committee Matters Questionnaire

Form 5 and Section 16 Reporting Director and Officer Questionnaire

* Please note that this Director and Officer Questionnaire may require revisions depending on the extent to which companies intend to rely on this Questionnaire as part of their controls relating to Auditing Standard 18.

NYSE Companies

The documents below have been prepared to assist NYSE-listed companies with 2021 year-end reporting and 2022 annual meetings. The questionnaires under "Information Gathering Tools" may be supplemented with some or all of the questionnaires in the Supplemental Director and Officer Questionnaires section.

Director and Officer Questionnaire (General)*

NYSE Director Independence and Audit/Compensation Committee Matters Questionnaire

Form 5 and Section 16 Reporting Director and Officer Questionnaire

* Please note that this Director and Officer Questionnaire may require revisions depending on the extent to which companies intend to rely on this Questionnaire as part of their controls relating to Auditing Standard 18.

Calendars

The Public Company Annual Timetable is a detailed compliance calendar that includes many corporate governance, SEC reporting and compliance action items.

The SEC Filing Deadlines and Holiday Calendar is a concise guide to key SEC and stock exchange dates for public companies.

Public Company Annual Timetable

SEC Filing Deadlines and Holiday Calendar

REITs

The documents in this section can be used by real estate investment trusts (REITs) in connection with the requirement that REITs demand ownership information from certain stockholders each year.

Cover Letter for REIT Shareholder Demand Letter Documents for calendar year 2021

REIT Shareholder Demand Letter for calendar year 2021

REIT Shareholder Ownership Statement for calendar year 2021

Treasury Regulation Sec. 1.857-8

Treasure Regulation Sec. 1.857-9

Treasury Regulation Sec. 1.857-10

Cover Letter, Demand Letter and Ownership Statement for Use by Private REITs for calendar year 2021

Supplemental Director and Officer Questionnaires

The questionnaires in this section may be used to supplement the other director and officer questionnaires in the Year-End Tool Kit.

The ISS and CII Supplemental Director Independence Standards Questionnaire asks for information necessary to determine whether directors will satisfy ISS and/or CII director independence standards.

The Iran-Related Activities Supplemental Director and Officer Questionnaire can be used to gather more detailed information that may be needed to determine whether SEC disclosure is required under the Iran Threat Reduction and Syria Human Rights Act of 2012. It can be used either to follow up on "yes" responses to the related questions in the general Director and Officer Questionnaire or to replace the related questions in the general Director and Officer Questionnaire (in which case those questions can be deleted).

The Foreign Corrupt Practices Act Supplemental Director and Officer Questionnaire addresses compliance and disclosure obligations of companies that may be subject to the Foreign Corrupt Practices Act.

The Rule 506(d) and 506(e) Supplemental Director and Officer Questionnaire can be used by companies that expect to engage in an offering under Rule 506(b) or Rule 506(c) during the year. Please note that this questionnaire is intended only for a company’s directors, executive officers and certain other company officers and shareholders, and not for entities (including the company) or distribution participants such as broker-dealers. Depending on the amount of time between when this questionnaire is circulated and when an offering is commenced, the company may need to update this questionnaire at the same time that a corresponding questionnaire is circulated to other persons covered by Rules 506(d) and 506(e).

These questionnaires have been prepared in a format that enables a company to include one or more of the questionnaires as separate, modular additions to packages distributed to some or all of the company's directors and/or officers.

ISS and CII Supplemental Director Independence Standards Questionnaire

Foreign Corrupt Practices Act Supplemental Director and Officer Questionnaire

Rule 506(d) and 506(e) "Bad Actor" Events Supplemental Director and Officer Questionnaire

SEC Compensation Disclosure Worksheets

The Executive Compensation Worksheets below can be used in connection with preparation of the executive compensation disclosure required in proxy statements by Item 402 of Regulation S-K. The version for smaller reporting companies and emerging growth companies should be used only by eligible companies that elect to report using the applicable scaled reporting provisions under SEC rules.

Executive Compensation Worksheet (PDF)

Executive Compensation Worksheet for Smaller Reporting and Emerging Growth Companies (PDF)

Executive Compensation Worksheet (Word)

Executive Compensation Worksheet for Smaller Reporting and Emerging Growth Companies (Word)