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Preparing 10-K & Proxy Disclosure: MD&A, CD&A, etc

2009 Disclosure Updates

February 2009

Preparing for the 2009 Proxy Season

Vinson & Elkins
February 2, 2009

Preparation for 2008 Fiscal Year SEC Filings and 2009 Annual Shareholder Meetings

Mintz Levin
Securities Law Advisory
February 5, 2009

Challenges of the 2009 10-K and Proxy Season

Weil Gotshal
January 22, 2009

Drafting the 2009 CD&A

Schulte Roth & Zabel
January 12, 2009

What’s New for the 2009 Proxy Season

Dorsey & Whitney
January 9, 2009
This Alert looks at key items companies should consider as they enter the 2009 proxy season. Noting that “there are very few new disclosure requirements to tackle this year”, the Alert focuses on what are effectively heightened expectations as to compliance with existing rules, especially in light of the current financial crisis. Compensation of course looms large, with proxy advisory firms and the SEC clearly not happy with practices to date; as does MD&A disclosure on liquidity and capital resources; the application for many companies of mandatory e-proxy rules for the first time; and updated SEC/FINSA rules and guidance, including as to director independence standards.

Consider Financial Crisis Impact When Updating Risk Factors

Chadbourne & Parke
January 7, 2009
This Alert notes that the MD&A (ie, Management's Discussion and Analysis of Financial Condition and Results of Operations) “will no doubt be the primary focus for most of the discussion concerning the impact of the economic crisis” when public companies and their advisers shortly begin to sit down to discuss/draft their annual report on Form 10-K, but cautions that the “Risk Factor” section should not be ignored even if risk factors have been considered as recently as the last 10-Q or in an 8-K. Okay, pretty obvious you might say…… but the Alert continues with a chart summary of 116 companies that updated risk factors to reflect the financial crisis in their 10-Q’s for Q3 2008. The chart looks at about 30 risk factors in light of the crisis and includes a breakdown to reflect companies in the financial services and energy sectors as well as a “general” basket. Some pretty interesting stuff to be gleaned from the chart. For instance, only 2.86% of the companies in the “general” category changed risk factor language relating to ratings downgrades or increased government regulation, but companies in financial services had done so in 40.63% and 50% of their risk factors as to those two respective risks.