Under Nasdaq's new Rule 5606, the board diversity disclosure rule, the deadline for most Nasdaq-listed companies to publicly disclose diversity statistics regarding their board of directors using a Board Diversity Matrix is approaching. The matrix must be disclosed by either (i) the date the company files its 2022 proxy (or, for a company that does not file a proxy, its 10-K or 20-F filing date), or (ii) August 8, 2022, whichever is later. This means:
- For domestic companies and foreign private issuers, if a matrix was not included in a proxy statement that was already filed or furnished with the SEC this calendar year, the matrix must be posted on the company's website by August 8, 2022.1
- For domestic companies and foreign private issuers, if a proxy statement will be filed or furnished with the SEC later this calendar year, it can disclose the matrix in the proxy statement by that later date.
Prior Nasdaq guidance had previously indicated that a foreign private issuer may not include the matrix in a proxy statement furnished with the SEC on a 6-K; however, this guidance is no longer in effect.
Companies electing to provide the matrix on their website must:
- Prepare the Board Diversity Matrix: For domestic companies, the required template is available on the Nasdaq website; FPIs may complete either the required domestic template or the FPI template on Nasdaq’s website. The matrix must be in this format or a substantially similar format.2
- Label the Disclosure and Decide Where to Post on Company Website: The disclosure should be clearly labeled as "Board Diversity Matrix" on the company's website. It can be posted anywhere on the website, but Nasdaq recommends posting it on the Investor Relations web page or other web page where governance documents are posted.
- Inform Nasdaq of Posting: Within one business day after posting, companies must complete Section 10 (Board Diversity Disclosure) of the Company Event Form on the Nasdaq listing center, which requires the company to provide the disclosure date and URL location of its matrix.3
Below we have provided a chart describing the various compliance deadlines that may be applicable to you.4 The below does not apply to NYSE-listed companies.
| Type of Company | Actions Already Completed | Required Compliance Action |
|---|---|---|
| Domestic, Listed on Nasdaq Before August 6, 20215 | Already filed this year's proxy statement and included a matrix there or on website | No action required. You are in compliance. |
| Already filed proxy statement, but did not include matrix there or on website | You must include matrix on your website by August 8, 2022. | |
| Will file this year's proxy statement after August 8, 2022 | You must include matrix in your proxy statement or on your website by the filing date of your proxy statement. | |
| Foreign Private Issuer, Listed on Nasdaq Before August 6, 2021 | Already filed this year's proxy statement or Form 20-F, and included matrix there or on website | No action. You are in compliance. |
| Already filed this year's proxy statement and Form 20-F, but did not include matrix there or on website | You must include matrix on your website by August 8, 2022. | |
| Will file this year's proxy statement after August 8, 2022 | You must include matrix in your proxy statement or on your website by the filing date of your proxy statement. | |
| Domestic, Listed on Nasdaq on or After August 6, 2021 | Already filed this year's proxy statement and included matrix there or on website | No action. You are in compliance. |
| Already filed proxy statement, but did not include matrix there or on website | You must include matrix on your website by one-year anniversary of listing. | |
| Will file this year's proxy statement later in 2022 | You must provide matrix by one-year anniversary of listing (either in this year's proxy statement or on your website). | |
| Foreign Private Issuer, Listed on Nasdaq on or After August 6, 2021 | Already filed this year's proxy statement or Form 20-F, and included matrix there or on website | No action. You are in compliance. |
| Already filed this year's proxy statement and Form 20-F, but did not include matrix there or on website | You must include matrix on your website by one-year anniversary of listing. | |
| Will file this year's proxy statement later in 2022 | You must include matrix in your proxy statement or on your website by one-year anniversary of listing. |
1 For companies listed on or after August 6, 2021, the deadline for providing the matrix is one year from the date of listing. For details on the Board Matrix disclosure requirements, see our alert, "Key Considerations for the 2022 Annual Reporting and Proxy Season" (for domestic companies) and "Key Considerations for the 2022 Annual Reporting Season: Form 20-F and Other FPI-Specific Considerations" (for FPIs).
2 For examples of variations Nasdaq considers acceptable, see Board Matrix Examples_Website.pdf (nasdaq.com).
3 For additional information, see Nasdaq's Website Disclosure of Board Diversity Matrix Info Sheet.
4 The chart assumes that you file or furnish a proxy statement with the SEC. If you do not file or furnish a proxy statement, then your Form 10-K or Form 20-F is the applicable filing.
5 See Nasdaq Rule 5606. See also, Board Diversity Disclosure Five Things.pdf (nasdaq.com), New Companies Listing on Nasdaq and Reference Library Search - Nasdaq Listing Center.
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