July 28, 2022

Reminder: Nasdaq Board Matrix Disclosure Deadline is August 8th

Era Anagnosti, Melinda Anderson, Colin Diamond, Maia Gez, Danielle Herrick, Scott Levi, Amanda Maki, Michelle Rutta

White & Case LLP

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White & Case LLP 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 (ii) August 8, 2022, whichever is later. This means:

For domestic companies, if a matrix was not previously included in a proxy statement filed this calendar year, the matrix must be posted on the company's website by August 8, 2022.¹
For foreign private issuers ("FPIs"), the matrix must be included in the company's Form 20-F or on its website.² FPIs cannot include the matrix in a proxy statement furnished on Form 6-K, so if the matrix was not included in their Form 20-F, it must be posted to their website by August 8, 2022.

Companies electing to provide the matrix on their website must:

Prepare the Board Diversity Matrix: Nasdaq provides a fillable PDF for US companies and a fillable PDF for FPIs that companies can use.³
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.⁴

Below we have provided a chart describing the various compliance deadlines that may be applicable to you. 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 Form 20-F and included matrix there or on website	No action. You are in compliance.
	Already filed this year's Form 20-F, but did not include matrix there or on website	You must include matrix on your website by August 8, 2022.⁶
	Will file this year's Form 20-F statement after August 8, 2022	You must include matrix in your Form 20-F or on your website by the filing date of your Form 20-F.
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 Form 20-F and included matrix there or on website	No action. You are in compliance.
	Already filed this year's 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 Form 20-F later in 2022	You must include matrix in your Form 20-F or on your website by one-year anniversary of listing.

¹ For domestic companies that have yet to file a proxy statement this calendar year, the deadline for disclosure of the matrix is the proxy statement filing date. 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."
² FPIs may use a modified format for the matrix, examples of which can be found, starting on page 4, here.
³ A company may create its own template as long as the format is substantially similar to the standardized template.
⁴ For additional information, see Nasdaq's Website Disclosure of Board Diversity Matrix Info Sheet.
⁵ See Nasdaq Rule 5606. See also, Board Diversity Disclosure Five Things.pdf (nasdaq.com), https://listingcenter.nasdaq.com/assets/New Companies Listing on Nasdaq.pdf and Reference Library Search - Nasdaq Listing Center.
⁶ As Nasdaq notes in its FAQs, "an [FPI] that circulates a proxy statement or information statements for its annual meeting of shareholders under its home country rules, and furnishes such information as well on a Form 6-K, would be considered a company that does not file a proxy statement under the rule. For such companies, the date it files its…Form 20-F or 40-F is the relevant date for determining the company's deadline for disclosing board diversity statistics…"

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.