Annual Meeting Date Change by more than 30 Days and Shareholder Proposal Deadlines Notice on Form 8-K - Cover Proposals under as well as outside 14a-8

Rule 14a-5(e) requires the proxy statement to disclose (i) the deadline for submitting shareholder proposals for inclusion in the proxy statement and proxy card for the next annual meeting calculated in the manner provided in Rule 14a-8(e) (Question 5), and (ii) the deadline after which submission of a shareholder proposal will be untimely, calculated as provided in Proxy Rule 14a-4(c)(1), or under an applicable advance notice provision.

Rule 14a-5(f) requires, if the date of the annual meeting of a registrant is subsequently advanced or delayed by more than 30 calendar days from the anniversary of the previous year's annual meeting date, that the registrant shall, in a timely manner, inform its shareholders of such change, and the new dates referred to under Rule 14a-5(e)(i) and (ii) above by including a notice in its earliest possible Form 10-Q or, if that is impracticable (to inform the shareholders in a timely manner), any means reasonably calculated to inform its shareholders (most registrants use Item 8.01 disclosure on Form 8-K).

A surprising number of registrants fail to provide adequate notice related to Rule 14a-5(e)(ii) on their Form 8-K, which covers the deadline for shareholder proposals to be submitted outside Rule 14a-8 (e.g., "In order for any shareholder proposals submitted outside of Rule 14a-8 of the Exchange Act to be considered "timely" for purposes of Rule 14a-4(c) of the Exchange Act, the proposal must be received at our principal executive offices not later than ____________" or words of similar import are missing).

See, for example, the following excerpts from Furmanite Corporation's Form 8-K dated May 28, 2015 and Fluidigm Corporation's Form 8-K dated May 29, 2015:

(https://www.sec.gov/Archives/edgar/data/54441/000005444115000094/a8-kshareholderproposalsma.htm)

Item 8.01 Other Events.

As previously disclosed, the 2015 Annual Meeting of Stockholders of Furmanite Corporation (the “Company”) was scheduled for April 24, 2015 and subsequently postponed. The Board of Directors of the Company has designated June 30, 2015 as the rescheduled date for the 2015 Annual Meeting of Stockholders of the Company. Pursuant to Rule 14a-5(f) and Rule 14a-8(e)(2) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), because the meeting date is more than 30 days from the anniversary of the Company’s 2014 Annual Meeting of Stockholders, the Company has set June 3, 2015 as the new deadline for the receipt of shareholder proposals submitted pursuant to Rule 14a-8 of the Exchange Act, for inclusion in the Company’s proxy materials for the 2015 Annual Meeting. In order to be considered timely, such proposals must be received in writing by the Company before the close of business on June 3, 2015 and delivered to the Company’s Secretary at the Company’s principal executive offices located at 10370 Richmond Avenue, Suite 600, Houston, Texas 77042. 

(https://www.sec.gov/Archives/edgar/data/1162194/000116219415000112/form8-kx2015annualmeeting.htm) 

Item 8.01

Other Events

2015 Annual Meeting of Stockholders; Date for Submission of Stockholder Proposals

Fluidigm Corporation (the “Company”) currently intends to hold its annual meeting of stockholders on Wednesday, July 29, 2015 (the “2015 Annual Meeting”). The exact time and location of the 2015 Annual Meeting will be specified in the Company’s proxy statement for the 2015 Annual Meeting.

Because the expected date of the 2015 Annual Meeting represents a change of more than 30 calendar days from the date of the anniversary of the Company’s 2014 annual meeting of stockholders, the Company is affirming the deadline for receipt of stockholder proposals submitted pursuant to Rule 14a-8 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), for inclusion in the Company’s proxy materials for the 2015 Annual Meeting. In order to be considered timely, such proposals must be received in writing by the Company’s Corporate Secretary at the Company’s principal executive offices at 7000 Shoreline Court, Suite 100, South San Francisco, California 94080 by the close of business on Monday, June 8, 2015. Such proposals also must comply with the applicable requirements of Rule 14A-8 of the Exchange Act regarding the inclusion of stockholder proposals in company-sponsored proxy materials and other applicable laws.

Item 11. Executive Compensation Disclosure on Form 10-KT for Transition Period Resulting from Fiscal Year Change (Bad Sample Form 10-KT likely prepared by Skadden)

Section 217.05 of the SEC's Compliance and Disclosure Interpretations for Regulation S-K provides guidance regarding executive compensation disclosure for registrants that changed their fiscal years as follows:

"217.05 If a company changes its fiscal year, report compensation for the "stub period," and do not annualize or restate compensation. In addition, report compensation for the last three full fiscal years, in accordance with Item 402 of Regulation S-K. For example, in late 1997 a company changed its fiscal year end from June 30 to December 31. In the Summary Compensation Table, provide disclosure for each of the following four periods: July 1, 1997 to December 31, 1997; July 1, 1996 to June 30, 1997; July 1, 1995 to June 30, 1996; and July 1, 1994 to June 30, 1995. Continue providing such disclosure for four periods (three full fiscal years and the stub period) until there is disclosure for three full fiscal years after the stub period (December 31, 2000 in the example). If the company was not a reporting company and was to do an IPO in February 1998, it would furnish disclosure for both of the following periods in the Summary Compensation Table: July 1, 1997 to December 31, 1997; and July 1, 1996 to June 30, 1997. [Jan. 24, 2007]"

Although Financial Reporting Manual and Rule 3-06 of Regulation S-X provide that transition period of nine or more months will be considered a full year for the purpose of disclosing financial statements for such transition period, if you call the Office of Chief Legal Counsel at CorpFin, the SEC staff will exhort you to strictly abide by Section 217.05 of the CD & I. So, a non-smaller reporting company should provide executive compensation disclosure covering the transition period and the last three full fiscal years. Even conservatively interpreting Section 217.05 of the CD & I, a smaller reporting company would have to provide executive compensation disclosure covering the transition period and the last two full fiscal years.

Here is an excerpt from a transition report on Form 10-KT for a transition period from April 1, 2013 to December 31, 2013 filed by Anchor BanCorp Wisconsin Inc. (ABCW) that failed to follow such guidance. 

(https://www.sec.gov/Archives/edgar/data/885322/000119312514108133/d663194d10kt.htm#tx663194_30)

SUMMARY COMPENSATION TABLE(1)

Name and Principal Position		Year				Salary ($)				Stock Awards ($)(2)				All Other Compensation ($)(3)				Total ($)
Chris M. Bauer			Dec-13			$	500,000			$	—			$	13,542			$	513,542
President and Chief Executive Officer of the Company and the Bank			Mar-13			$	615,000			$	—			$	17,384			$	632,384
Thomas G. Dolan			Dec-13			$	303,500			$	—			$	509			$	304,009
Executive Vice President, Chief Financial Officer of the Company and the Bank			Mar-13			$	358,750			$	—			$	454			$	359,204
Mark D. Timmerman			Dec-13			$	180,000			$	—			$	5,692			$	185,692
Executive Vice President, Secretary, General Counsel of the Company and the Bank			Mar-13			$	267,500			$	51,793			$	2,440			$	321,733
Martha M. Hayes			Dec-13			$	313,500			$	—			$	5,080			$	318,580
Executive Vice President—Chief Risk Officer of the Bank			Mar-13			$	400,500			$	—			$	3,743			$	404,243
Scott M. McBrair			Dec-13			$	303,500			$	—			$	5,360			$	308,860
Executive Vice President—Retail Banking of the Bank			Mar-13			$	358,750			$	—			$	3,231			$	361,981

166

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Table of Contents

(1)	On December 18, 2013, the Board approved a change in the Company’s fiscal year end from March 31 to December 31. Compensation and benefit totals herein reflect nine months ended December 31, 2013 and twelve months ended March 31, 2013.

(2)

Reflects the dollar amounts recognized for financial statement reporting purposes in accordance with FASB ASC Topic 718, of restricted stock awarded under our 2004 Equity Incentive Plan and thus may include amounts from awards granted in and prior to 2007. The assumptions used in the calculation of these amounts are included in the notes to the audited consolidated financial statements included elsewhere in this transition report. Market value of shares vesting during the fiscal year ended March 31, 2013 was $6,715 for Mr. Timmerman.

(3)

The amounts listed as “All Other Compensation” in the “Summary Compensation Table” above include Company contributions to the AnchorBank 401(k) Plan, dividends paid on restricted stock, directors fees received from the Company and/or the Bank, Company contributions to non-qualified deferred compensation plans, life insurance premiums paid by the Company and the imputed personal use of Company-owned vehicles, if applicable, which are listed in the table below:

		Year				Company Matching Contribution to 401(k) Plan				Life Insurance Premiums				Imputed Personal Use of Company- Owned Vehicles				Total
Chris M. Bauer			Dec-13			$	3,128			$	674			$	9,740			$	13,542
			Mar-13			$	4,522			$	861			$	12,001			$	17,384
Thomas G. Dolan			Dec-13			$	—			$	509			$	—			$	509
			Mar-13			$	—			$	454			$	—			$	587
Mark D. Timmerman			Dec-13			$	5,356			$	336			$	—			$	5,692
			Mar-13			$	1,844			$	596			$	—			$	2,440
Martha M. Hayes			Dec-13			$	4,622			$	458			$	—			$	5,080
			Mar-13			$	3,028			$	715			$	—			$	3,743
Scott M. McBrair			Dec-13			$	4,959			$	401			$	—			$	5,360
			Mar-13			$	2,691			$	540			$	—			$	3,231

167 

Legality Opinion in Registered Offerings - Assumptions Prohibited by Staff Legal Bulletin No. 19 (Bad Sample Opinion of Clifford Chance LLP)

A. Legality Opinions are required in Registered Offerings

1. Securities Act 

Paragraph 23 of Schedule A to the Securities Act requires disclosure in the registration statement of “the names and addresses of counsel who have passed on the legality of the issue.” Paragraph 29 of Schedule A requires the filing of “a copy of the opinion or opinions of counsel in respect to the legality of the issue….”

2. Regulation S-K 

Item 601(b)(5)(i) of Regulation S-K requires that all Securities Act filings include an opinion of counsel regarding the legality of the securities being offered and sold pursuant to the registration statement. As a general rule, counsel’s signed legality opinion must be filed as an exhibit to the registration statement before it becomes effective, and the opinion may not be subject to any unacceptable qualifications, conditions or assumptions.

When a U.S. corporation issues shares of capital stock in a registered offering, the Regulation S-K Item 601(b)(5)(i) requires an opinion of counsel with respect to whether the securities will be, when sold:

• legally (or validly) issued;
   
• fully paid; and
   
• non-assessable.

B. Commonly Neglected Rule Check - SLB No. 19

II.B.2.a of SLB No. 19 provides that as a general rule, counsel’s signed legality opinion must be filed as an exhibit to the registration statement before it becomes effective, and it may not be subject to any unacceptable qualifications, conditions or assumptions. The Division (of CorpFin) permits an exception to this general rule for delayed shelf offerings under Securities Act Rule 415(a)(1)(x). Delayed offerings off the shelf specifically contemplate a delay between the date of effectiveness and any sale of securities. In this situation, and subject to the understanding that an appropriately unqualified opinion will be filed no later than the closing date of the offering of the securities covered by the registration statement, the legality opinion in the shelf registration statement at the time it becomes effective may include assumptions regarding the future issuance of securities that would generally not be acceptable in connection with a non-shelf offering....When a takedown occurs, the registrant must file an updated opinion as an exhibit to the registration statement, unless an appropriately unqualified opinion was filed at the time of effectiveness. The updated opinion cannot include the assumptions recited in the earlier opinion. The registrant can file this updated opinion either pursuant to Securities Act Rule 462(d), which provides for the immediate effectiveness of a post-effective amendment filed solely to add exhibits to a registration statement, or, to the extent such filings are incorporated by reference into the relevant registration statement, under cover of Form 8-K or Form 6-K.

(https://www.sec.gov/interps/legal/cfslb19.htm#sdfootnote1sym)  

C. Big Name Law Firm Filing a Bad Opinion

The SEC staff considers it inappropriate for counsel to include in its opinion assumptions that are overly broad, that “assume away” the relevant issue or that assume any of the material facts underlying the opinion or any readily ascertainable facts. For example, counsel should not assume that the registrant:

• is legally incorporated;
   
• has sufficient authorized shares;
   
• is not in bankruptcy; or
   
• has taken all corporate actions necessary to authorize the issuance of the securities.

In its legality opinion for the Automatic Shelf Registration of Nielsen N.V. (NLSN) filed on March 5, 2015 as Exhibit 5.1 on Form 8-K, Clifford Chance LLP, one of the largest law firms in the world, made the following assumptions among others, which directly violates the staff's guidance under SLB No. 19 and eviscerates the whole purpose of the legality opinion, that is, opine on the legal and valid issuance of the subject securities.

"III.

Assumptions

In examining and in describing the documents listed above and in giving this opinion we have assumed:

(i)	that the General Meeting and the Board have each taken all necessary corporate action to authorize and approve the issuance of the Shares;

(ii)

that the Shares have been validly issued and delivered and an amount at least equal to the nominal value of such Shares has been duly paid to the Company in accordance with the subscription or issue agreement pursuant to which such Shares were issued;" (https://www.sec.gov/Archives/edgar/data/1492633/000119312515078865/d884095dex51.htm)