May 8, 2012
Seeking a Waiver from Corp Fin for Failure to File 8-K Announcing the Frequency Vote
– Broc Romanek, CompensationStandards.com
Yesterday, Davis Polk’s Ning Chiu blogged this nice piece about what to do to seek a waiver from Corp Fin for failing to timely file a Form 8-K announcing the frequency vote. We have covered the Staff’s willingness to go down this road in this blog – as well as covering it in the January-February issue of The Corporate Counsel.
Ning lists various items that may need to be in the request letter (as I understand it, what exactly needs to be in the request depends on which Staffer you are dealing with – so it’s a trial and error process), including:
– Whether the company has an existing Form S-3 registration statement or is planning to file one
– A request for the waiver, including any requests to use an existing Form S-3 registration statement or the ability file a new one
– Background on the frequency vote conducted and the board’s decision as to the frequency selected
– The reasons for the failure to file the Form 8-K on a timely basis
– Whether the company received a shareholder proposal on the frequency of the advisory vote on executive compensation for the 2012 meeting
– Whether the company has previously failed to make any required Exchange Act filings on a timely basis
– Processes and procedures implemented to ensure timely Exchange Act filings in the future
The Staff will respond orally and will not confirm in writing.