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Quick update regarding Pay vs. Performance

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  • Kimberly Lanier

    Mike, I have reviewed several DEF14A filings of other companies and do not see an Exhibit 104 in their index.  Has it been determined that this is not needed for the proxy? Thanks

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  • Mike Davis

    Hi Kimberly!

    This is still a bit of a grey area as far as what is "required" by the SEC for Proxy filings. Exhibit 104 is for a tagged cover page data but it is questionable if it needs to be included proxy filings, since they are not types that are included in the FAST Act forms. For example, for Form 8-K, the SEC has stated that if the exhibit index only contains the cover page 104 "exhibit", the exhibit index may be omitted.

    Cover Page Interactive Data Files required under Rule 406 of Regulation S-T should be identified as exhibit 104 in the exhibit index of an applicable filing.  If, however, the exhibit index of a Form 8-K would include only a Cover Page Interactive Data File as exhibit 104, and would not include any other exhibit, the staff will not object if the registrant does not add an exhibit index to the Form 8-K solely for the purpose of identifying the Cover Page Interactive Data File as an exhibit under Item 9.01 of Form 8-K

    We understand that question(s) had been submitted to the SEC to confirm Exhibit requirements, but are not yet aware of a response yet. We are keeping an eye on it, for sure, but one thing to note is that the SEC has said via an xbrl.us webinar that there is no "Cover Page tagging requirements" for this mandate.

    All that said, we'd recommend seeking your own legal team's advice on what you should do but as of right now it seems like its up to the filer to supply it. I'll add that if you do wish to include it in your index, as with all XBRL exhibits, hyperlinks should not be used.

    Hopefully that helps some. We'll keep you apprised of any new developments but let us know what questions you have in the meantime. Thanks again and have a super day!

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