DISCLOSURE DRAFTING TIPS

Welcome to my disclosure drafting tips! I hope to use this page to highlight some common errors that I find as I read annual reports, proxy statements, Forms ADV (or is that Form ADVs?), and other disclosure documents. The names have been changed to protect the innocent, but I promise: every “before” that you see here is real.

If your company has any particularly gnarly disclosure paragraphs that you want me to tackle, please send them along!

A negative plus a negative equals a positive

Original

The Audit Committee is charged with reviewing the material facts of all related person transactions and either approving or disapproving of the Company’s participation in such transactions under the Company’s Related Persons Transaction Policy adopted by the Board (“RPT Policy”) on October 7, 2013, which pre-approves certain transactions that are not deemed to be related person transactions pursuant to Item 404 of Regulation S-K.

The Audit Committee Chairman may approve any related person transaction in which the aggregate amount involved is expected to be less than $120,000. A summary of such approved transactions and each new related person transaction deemed pre-approved under the RPT Policy is provided to the Audit Committee for its review. The Audit Committee has the authority to modify the RPT Policy regarding pre-approved transactions or to impose conditions upon the ability of the Company to participate in any related person transaction.

There were no related person transactions during 2017 which were required to be reported in “Related Persons Transactions” where the procedures described above did not require review, approval or ratification or where these procedures were not followed.

Original with Commentary

The Audit Committee is charged with reviewing the material facts of all related person transactions and either approving or disapproving of the Company’s participation in such transactions under the Company’s Related Persons Transaction Policy adopted by the Board (“RPT Policy”) on October 7, 2013 [unless the full date is relevant, which it rarely is 4½ years later, the year will suffice] which pre-approves certain transactions that are not deemed to be related person transactions pursuant to Item 404 of Regulation S-K. [That’s a really long sentence. I ran out of breath.]

The Audit Committee Chairman may approve any related person transaction in which the aggregate amount involved is expected to be less than $120,000. A summary of such approved transactions and each new related person transaction deemed pre-approved under the RPT Policy is provided to the Audit Committee for its review. [Note the passive formulation: “A summary…is provided.” By whom? How often?] The Audit Committee has the authority to modify the RPT Policy regarding pre-approved transactions or to impose conditions upon the ability of the Company to participate in any related person transaction.

There were no related person transactions during 2017 which were required to be reported in “Related Persons Transactions” where the procedures described above did not require review, approval or ratification or where these procedures were not followed. [This sentence hurts my brain.]

Rewritten

The Audit Committee is charged with reviewing the material facts of all related person transactions and either approving or disapproving of Acme’s participation in those transactions under our Related Persons Transaction Policy (“RPT Policy”). The RPT Policy, which was adopted by the Board in 2013, pre-approves certain transactions that are not deemed to be “related person transactions” under Item 404 of Regulation S-K.

The Audit Committee Chairman may approve any related person transaction in which the aggregate amount involved is expected to be less than $120,000. [Title of employee] will give the Audit Committee a written summary of such approved transactions and of each new related person transaction deemed pre-approved under the RPT Policy, if any, [one week before each committee meeting]. The Audit Committee has the authority to modify the RPT Policy regarding pre-approved transactions or to impose conditions upon the ability of Acme to participate in any related person transaction.

For all related person transactions during 2017 that were required to be reported in “Related Persons Transactions,” the procedures described above were followed unless the RPT Policy did not require the transaction to be reviewed, approved or ratified.