On February 10, 2022, the U.S. Securities and Exchange Commission (the “SEC”) proposed amendments to accelerate the filing deadlines for Schedule 13D and Schedule 13G beneficial ownership reports, expand beneficial ownership reporting obligations to include the acquisition of certain derivative securities and clarify the standards for formation of a group that would be subject to beneficial ownership reporting obligations. The proposed amendments are intended to provide more timely information to meet the needs of the current financial markets. SEC Chair Gary Gensler stated, “These amendments would update our reporting requirements for modern markets, reduce information asymmetries, and address the timeliness of Schedule 13D and 13G filings. Investors currently can withhold market moving information from other shareholders for 10 days after crossing the 5 percent threshold before filing a Schedule 13D, which creates an information asymmetry between these investors and other shareholders. The filing of Schedule 13D can have a material impact on a company’s share price, so it is important that shareholders get that information sooner.”
Background
Pursuant to Sections 13(d) and 13(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), an investor who acquires beneficial ownership of more than 5% of a class of equity securities registered under Section 12 of the Exchange Act (referred to as a “covered class”) must publicly report such beneficial ownership by filing either a Schedule 13D or a Schedule 13G with the SEC. Section 13(d) of the Exchange Act requires disclosure by investors of the accumulation of significant positions or increases in such positions with respect to the voting stock of public companies while Section 13(g) of the Exchange Act permits short-form disclosure by passive investors that hold/obtain significant positions of voting stock of public companies. These disclosures are intended to provide transparency to the company, its stockholders and the market generally of significant stakes in reporting companies and the acquiror’s intentions, including the potential for a change in control.
Proposed Amendments
- Filings Deadlines.
- Schedule 13D.
- Initial Filings. The amendments proposed by the SEC would shorten the deadline for filing an initial Schedule 13D from ten days to five days after crossing the 5%-threshold or otherwise losing eligibility to file on Schedule 13G.
- Amendments. Pursuant to the amendments proposed by the SEC, if any material change occurs in an investor’s holdings or status from that reported in its Schedule 13D, such investor would be required to file an amended Form 13D within one business day (as compared to the current rule of filing such amendment “promptly”).
- Schedule 13G.
- Initial Filings. For Schedule 13G filers who are considered qualified institutional investors (“QIIs”)[1]or exempt investors[2], the proposed amendments would shorten the initial filing deadline from 45 days after year-end to five business days after the end of the month in which the investor’s beneficial ownership first exceeds 5% of the covered class of equity securities. For other Schedule 13G filers considered passive investors, the proposed amendments would shorten the initial filing deadline from ten days after crossing the 5%-threshold to five days.
- Amendments. The amendments proposed by the SEC would shorten the deadline from 45 days after year-end in which any change occurred to five business days after month end in which a material change occurred. For QIIs, the proposed amendments would shorten the deadline from ten days after month-end in which beneficial ownership exceeded 10% or there was, as of month-end, a 5% increase or decrease in beneficial ownership to the date five days after beneficial ownership exceeds 10% or there was a 5% increase or decrease in beneficial ownership. Lastly, with respect to passive investors, the proposed amendments would change the deadline from “promptly” to one business day after beneficial ownership exceeds 10% or there was or a 5% increase or decrease in beneficial ownership.
- Amendment Triggering Events. Instead of amending a Schedule 13G upon the occurrence of any change in the information previously reported, the proposed amendments would revise Rule 13d-2(b) to require filers to amend a Schedule 13G only if a material change in the information previously reported occurs.
- Filing Cut-off Time. The proposed amendments would extend the filing cut-off times for Schedule 13 filings from 5:30 p.m. ET to 10:00 p.m. ET on a business day.
- Derivative Securities. The proposed amendments would deem certain holders of cash-settled derivative securities (as defined in Rule 16a-1(c) of the Exchange Act), other than a security-based swap (as defined in Section 3(a)(68) of the Exchange Act), a beneficial owner of the reference equity securities if the derivative is held (i) with the purpose or effect of changing or influencing the control of the issuer of the reference securities or (ii) in connection with or as a participant in any transaction having such purpose or effect, which would cause such derivatives position to be counted toward the reporting thresholds of Section 13(d). The proposed amendments would also revise Item 6 of Schedule 13D to clarify that a person is required to disclose interests in all derivative securities, including cash-settled derivative securities, that use the issuer’s equity security as a reference security.
- Group Formation and Related Exemptions. The proposed amendments clarify the circumstances under which two or more persons form/act as a group under Sections 13(d) and (g) of the Exchange Act removing any requirement for an agreement between two or more persons to form a group as long as the persons act as a group for purposes of acquiring, holding or disposing securities of an issuer. In addition, pursuant to the proposed amendments, to enhance investor confidence and promote accurate price discovery in the capital markets, if a person discloses information about an upcoming Schedule 13D filing, to the extent such information is not yet public, to any other person with the purpose of causing such other person to acquire securities of the issuer based on that information, then those persons will be deemed to have formed a group.
- XML-based language. The proposed amendments would require that all information disclosed on Schedules 13D and 13G, be filed using a structured, machine-readable data language.
Comment Period
The comment period for the proposed rule amendments will remain open until the later of April 11, 2022, or 30 days following publication in the Federal Register.
FOOTNOTES
[1] “The institutional investors qualified to report on Schedule 13G, in lieu of Schedule 13D and in reliance upon Rule 13d-1(b), include a broker or dealer registered under Section 15(b) of the Exchange Act, a bank as defined in Section 3(a)(6) of the Exchange Act, an insurance company as defined in Section 3(a)(19) of the Exchange Act, an investment company registered under Section 8 of the Investment Company Act of 1940, an investment adviser registered under Section 203 of the Investment Advisers Act of 1940, a parent holding company or control person (if certain conditions are met), an employee benefit plan or pension fund that is subject to the provisions of the Employee Retirement Income Security Act of 1974, a savings association as defined in Section 3(b) of the Federal Deposit Insurance Act, a church plan that is excluded from the definition of an investment company under Section 3(c)(14) of the Investment Company Act of 1940, non-U.S. institutions that are the functional equivalent of any of the institutions listed in Rules 13d-1(b)(1)(ii)(A) through (I), so long as the non-U.S. institution is subject to a regulatory scheme that is substantially comparable to the regulatory scheme applicable to the equivalent U.S. institution, and related holding companies and groups (collectively, “Qualified Institutional Investors” or “QIIs”).”
[2] “Exempt Investor” refers to persons holding beneficial ownership of more than 5% of a covered class at the end of the calendar year, but who have not made an acquisition of beneficial ownership subject to Section 13(d).
