Nasdaq Board Diversity Matrix In Practice

Although the compliance deadline for the requirement to add diverse directors was extended, the board diversity matrix disclosure form (“Board Diversity Matrix”) requirement is now in its second year.

Nasdaq Rule 5606(a) requires Nasdaq listed companies to publicly disclose, in an aggregated form, to the extent permitted by law (for example, some foreign countries may prohibit such disclosure), information on the voluntary self-identified gender and racial characteristics and LGBTQ+ status of the company’s board of directors as part of the ongoing corporate governance listing requirements.  Each company must provide an annual Board Diversity Matrix disclosure, including: (i) the total number of directors; (ii) the number of directors based on gender identity (female, male or non-binary); (iii) the number of directors that did not disclose gender; (iv) the number of directors based on race and ethnicity; (v) the number of directors who self-identify as LGBTQ+; and (vi) the number of directors who did not disclose a demographic background.

Foreign issuers may elect to use an Alternative Board Diversity Matrix format.  Foreign issuers using the Alternative Matrix are required to disclose: (i) the total number of directors; (ii) its country of principal executive offices; (iii) whether it qualifies as a Foreign Private Issuer; (iv) whether disclosure is prohibited under its home country law; (v) the number of directors based on gender identity and the number of directors who did not disclose gender; (vi) the number of directors who self-identify as underrepresented individuals in its home country; (vii) the number of directors who self-identify as LGBTQ+; and (viii) the number of directors who did not disclose a demographic background.

Although not required, the rule encourages disclosure of other diverse attributes such as nationality, disability or veteran status.  Failure to provide the disclosure will result in a listing deficiency with the ability to submit a plan within 45 days that would provide for cure within 180 days.  Ultimate non-compliance could result in delisting.  I’ve included both the Board Diversity Matrix and Alternative Board Diversity Matrix at the end of this blog.

Compliance Deadline

The rules require that the Board Diversity Matrix to be included in an annual report or proxy statement, or on the company’s website beginning in 2022.  There was some confusion over the exact deadline, but Nasdaq recently clarified that December 31 is the annual deadline for this disclosure.

Look Back Period

Under Nasdaq Rule 5606(a), after the first year of disclosure, all companies must disclose the current year and immediately prior year diversity statistics using the Board Diversity Matrix.  Nasdaq FAQ clarifies that “[E]ach subsequent year, the company is required to publish its data for the current year and prior year.  If the immediately prior year data is publicly disclosed elsewhere (i.e., a proxy statement, information statement or company website), then the company can choose to disclose the current year data only.”

Practice Tip

I have been advising my clients to disclose two years side by side, whether it be on the company website or in their annual report or proxy.  Navigating public company disclosure is difficult enough for investors without having to look for comparable information in different locations.  Also, although some companies may not want to highlight trends that are not “improvements,” I believe that the investor that is interested in year over year changes in board diversity, will find the information regardless of the location and is just as likely to take issue if it appears a company is trying to make a comparison more difficult.

Matrix Forms

The Author

Laura Anthony, Esq.

Founding Partner

Anthony L.G., PLLC

A Corporate Law Firm

LAnthony@AnthonyPLLC.com

Securities attorney Laura Anthony and her experienced legal team provide ongoing corporate counsel to small and mid-size private companies, OTC and exchange traded public companies as well as private companies going public on the Nasdaq, NYSE American or over-the-counter market, such as the OTCQB and OTCQX. For more than two decades Anthony L.G., PLLC has served clients providing fast, personalized, cutting-edge legal service.  The firm’s reputation and relationships provide invaluable resources to clients including introductions to investment bankers, broker-dealers, institutional investors and other strategic alliances. The firm’s focus includes, but is not limited to, compliance with the Securities Act of 1933 offer sale and registration requirements, including private placement transactions under Regulation D and Regulation S and PIPE Transactions, securities token offerings and initial coin offerings, Regulation A/A+ offerings, as well as registration statements on Forms S-1, S-3, S-8 and merger registrations on Form S-4; compliance with the Securities Exchange Act of 1934, including registration on Form 10, reporting on Forms 10-Q, 10-K and 8-K, and 14C Information and 14A Proxy Statements; all forms of going public transactions; mergers and acquisitions including both reverse mergers and forward mergers; applications to and compliance with the corporate governance requirements of securities exchanges including Nasdaq and NYSE American; general corporate; and general contract and business transactions. Ms. Anthony and her firm represent both target and acquiring companies in merger and acquisition transactions, including the preparation of transaction documents such as merger agreements, share exchange agreements, stock purchase agreements, asset purchase agreements and reorganization agreements. The ALG legal team assists Pubcos in complying with the requirements of federal and state securities laws and SROs such as FINRA for 15c2-11 applications, corporate name changes, reverse and forward splits and changes of domicile. Ms. Anthony is also the author of SecuritiesLawBlog.com, the small-cap and middle market’s top source for industry news, and the producer and host of LawCast.com, Corporate Finance in Focus. In addition to many other major metropolitan areas, the firm currently represents clients in New York, Los Angeles, Miami, Boca Raton, West Palm Beach, Atlanta, Phoenix, Scottsdale, Charlotte, Cincinnati, Cleveland, Washington, D.C., Denver, Tampa, Detroit and Dallas.

Ms. Anthony is a member of various professional organizations including the Crowdfunding Professional Association (CfPA), Palm Beach County Bar Association, the Florida Bar Association, the American Bar Association and the ABA committees on Federal Securities Regulations and Private Equity and Venture Capital. She is a supporter of several community charities including the American Red Cross for Palm Beach and Martin Counties, the Susan Komen Foundation, Opportunity, Inc., New Hope Charities, the Society of the Four Arts, the Norton Museum of Art, Palm Beach County Zoo Society, the Kravis Center for the Performing Arts and several others.

Ms. Anthony is an honors graduate from Florida State University College of Law and has been practicing law since 1993.

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