James Lurie, Sandra Cohen
January 06, 2010
On December 16, 2009, the U.S. Securities and Exchange Commission (SEC) adopted amendments to its rules designed to improve the disclosure shareholders of public companies receive regarding compensation and corporate governance (see SEC Release No. 33-9089)1 The new disclosure requirements enhance the information provided in Form 10-K, proxy and information statements and registration statements under the Securities Act of 1933, to better enable shareholders to evaluate the leadership of public companies.
These amendments implement changes to certain items of Regulation S-K, the proxy rules applicable to U.S. domestic issuers and Form 8-K reporting requirements. As a result, Canadian foreign private issuers that file annual reports on Form 20-F or Form 40-F and rely upon the Multijurisdictional Disclosure System to make registered offerings of securities in the United States are not directly affected by these amendments. However, Canadian foreign private issuers may wish to consider these new corporate governance requirements as potentially significant developments in corporate governance best practices.
As discussed in our Osler Update of August 11, 2009, the SEC initially proposed amendments to the proxy disclosure rules in July 2009. The amendments were adopted substantially as proposed but the final rules reflect a number of significant changes made in response to comments received from corporations, pension funds, professional associations, law firms and others.
The new rules require disclosure in proxy and information statements regarding:
- The relationship of a company’s compensation policies and practices to risk management.
- Stock and option awards to company executives and directors.
- Potential conflicts of interest of compensation consultants.
- The background and qualifications of directors and nominees.
- Legal actions involving a company’s executive officers, directors and nominees.
- The consideration of diversity in the process by which candidates for director are considered for nomination.
- Board leadership structure and the board’s role in risk oversight.
In addition, the new rules require faster reporting of shareholder voting results on Form 8-K, instead of Form 10-K or 10-Q.
The rules will be effective February 28, 2010. Recommended action items are discussed at the end of this Update.
Compensation Policies and Practices as they Relate to Risk Management
New amendments to Item 402 of Regulation S-K will require narrative disclosure about a company’s compensation policies and practices for employees generally, not just executive officers, if those compensation policies and practices create risks that are “reasonably likely to have a material adverse effect” on the company.2 In contrast, the rules proposed in July would have required discussion and analysis of compensation policies if risks arising from those policies “may have a material effect on the company.” The SEC changed the threshold for disclosure from “may” to “reasonably likely” because companies are familiar with the latter threshold from the Management Discussion and Analysis (MD&A) rules, which require risk-oriented disclosure of known trends and uncertainties that are material to business.
The final disclosure standard also modified the proposed rule by providing that disclosure is only required if the compensation policies and practices are reasonably likely to have a material “adverse” effect, as opposed to any “material effect,” as proposed. The final rule is intended to avoid unnecessary disclosure of compensation arrangements that mitigate inappropriate risk-taking incentives. By focusing on risks that are “reasonably likely to have a material adverse effect” on the company, the amendments are intended to elicit disclosure about incentives in the company’s compensation policies and practices that would be most relevant to investors and are designed to help investors identify whether the company has established a system of incentives that can lead to excessive or inappropriate risk taking by employees. The final rules, however, allow companies to consider compensating or offsetting steps or controls designed to limit risks of certain compensation arrangements. Accordingly, if a company has compensation policies and practices for different groups that mitigate or balance incentives, these could be considered in deciding whether risks arising from the company’s compensation policies and practices for employees are reasonably likely to have a material adverse effect on the company as a whole.
The final rules, as proposed, contain a non-exhaustive list of situations that may trigger the new disclosure, including compensation policies and practices:
- At a business unit of the company that carries a significant portion of the company’s risk profile;
- At a business unit with compensation structured significantly differently than other units within the company;
- At a business unit that is significantly more profitable than others within the company;
- At a business unit where the compensation expense is a significant percentage of the unit’s revenues; and
- That vary significantly from the overall risk and reward structure of the company, such as when bonuses are awarded upon accomplishment of a task, while the income and risk to the company from the task extend over a significantly longer period of time.
If a company determines that disclosure is required, issues that companies may need to address regarding their compensation policies or practices include the following:
- The general design philosophy of the company’s compensation policies and practices for employees whose behavior would be most affected by the incentives established by the policies and practices, as such policies and practices relate to or affect risk taking by those employees on behalf of the company, and the manner of their implementation;
- Risk assessment or incentive considerations, if any, in structuring compensation policies and practices or in awarding and paying compensation;
- How compensation policies and practices relate to the realization of risks resulting from the actions of employees in both the short term and the long term, such as through policies requiring claw backs or imposing holding periods;
- Policies regarding adjustments to compensation policies and practices to address changes in risk profile;
- Material adjustments to policies and practices made as a result of changes in its risk profile; and
- The extent to which the company monitors its compensation policies and practices to determine whether its risk management objectives are being met with respect to incentivizing its employees.
The SEC has indicated that it does not expect to see generic or boilerplate disclosure that the incentives are designed to have a positive effect, or that compensation levels may not be sufficient to attract or retain employees with appropriate skills in order to enable the company to maintain or expand operations.
In addition, the final rules do not require a company to affirmatively state that it has concluded that the risks arising from its compensation policies and practices are not reasonably likely to have a material adverse effect on the company, as originally proposed.
Finally, the new disclosure will not appear in the Compensation Discussion and Analysis (CD&A), as proposed in July, but will appear as a separate compensation-related paragraph in Item 402 of Regulation S-K.
The new rules change the disclosure of stock and option awards in the Summary Compensation Table and Director Compensation Table to require disclosure of the aggregate grant date fair value of awards computed in accordance with Financial Accounting Standards Board Accounting Standard Codification Topic 718 (FASB ASC Topic 718), rather than the dollar amount recognized for that year for financial statement reporting purposes.
For equity awards subject to performance conditions, the amount to be included in the Summary Compensation Table, Grants of Plan-Based Awards Table and Director Compensation Table is the value at the grant date based on the probable outcome of such conditions, which is consistent with the recognition criteria under accounting rules (excluding the effect of estimated forfeiture), as opposed to reporting the value of awards based on maximum potential performance. This change was adopted based on commentators’ views that disclosing an award’s value based on maximum performance would overstate the intended level of compensation and result in investor misinterpretation of compensation decisions. However, the new rules will require footnote disclosure to the Summary Compensation Table and Director Compensation Table of the maximum value assuming the highest level of performance conditions.
As proposed, the SEC will require disclosure of awards granted during the relevant fiscal year, rejecting commentators’ suggestions to disclose awards granted for services during the year, even if granted after the year end. The release notes that companies should continue to analyze in the CD&A their decisions to grant post-fiscal year end equity awards where those decisions could affect a fair understanding of named executive officers’ compensation for the last fiscal year, and consider including supplemental tabular disclosure where it facilitates understanding of the CD&A.3
Transition Provisions. Companies with fiscal years ending on or after December 20, 2009, will be required to re-compute the value of the equity awards disclosed in the Summary Compensation Table for each previous year required to be included in the table, so that the stock awards and option awards columns present the applicable full grant date fair values, and the total compensation column is correspondingly recomputed. The stock awards and option awards columns amounts should be computed based on the individual award grant date fair values reported in the applicable year’s Grants of Plan-Based Awards Table, except that awards with performance conditions should be recomputed to report grant date fair value based on the probable outcome as of the grant date, consistent with FASB ASC Topic 718. In addition, if a person who would be a named executive officer for the most recent fiscal year (2009) also was disclosed as a named executive officer for 2007, but not for 2008, the named executive officer’s compensation for each of those three fiscal years must be reported pursuant to the amendments. However, companies are not required to include different named executive officers for any preceding fiscal year based on recomputing total compensation for those years.4
As a means of increasing the transparency of potential conflicts of interest, new disclosure under Item 407 of Regulation S-K is required regarding fees paid to and services provided by compensation consultants (or their affiliates) who provide executive and director compensation consulting services as well as additional services (such as benefits administration, human resources consulting or actuarial services) to the reporting issuer. The new disclosure is in addition to the current rules which require disclosure regarding the role of compensation consultants in recommending executive or director compensation.5
Consultants Retained by the Board. If either the board or the compensation committee engages a compensation consultant to provide advice or recommendations on the amount or form of executive and director compensation and this consultant or its affiliates provide other non-executive compensation consulting services to the company and the fees for such additional services exceed $120,000 during the fiscal year, the company is required to disclose:
- The aggregate fees for determining or recommending the amount or form of executive and director compensation;
- The aggregate fees for such additional services;
- Whether the decision to engage the consultant for the other services was made or recommended by management; and
- Whether the board or compensation committee approved the other services provided to the company.
Consultants Retained by Management. If the board or compensation committee did not engage a compensation consultant, but management engages a compensation consultant who also provided other non-executive compensation consulting services to the company in an amount in excess of $120,000, the company is required to disclose:
- The aggregate fees paid for advising on the amount or form of executive compensation; and
- The aggregate fees paid for such additional services.
The new disclosure regarding management retained compensation consultants is not required if the board and management have different compensation consultants, even if management’s consultant provides additional services or participates in Board meetings.
In contrast to the proposed rule, the final rules amendments do not require disclosure of the nature and extent of additional services provided by the compensation consultant and its affiliates to the company. However, companies may include a description of the additional non-executive compensation consulting services provided by the compensation consultant and its affiliates where such information would facilitate investor understanding of the existence or nature of any potential conflict of interest.
In addition, the new disclosures are not required (i) where the consultant’s role in determining executive compensation is in connection with a broad-based employee benefit plan that does not discriminate in favor of executives or directors or (ii) where the compensation consultant’s services are limited to providing information, such as surveys, that either is not customized for a particular company, or that is customized based on parameters that are not developed by the compensation consultant. This latter exception, however, is not available if the consultant provides advice or recommendations in connection with the information provided in the survey.
Corporate Governance Disclosure
Director and Nominee Disclosure
The SEC approved amendments to Item 401 of Regulation S-K which enhance the information required concerning the backgrounds of directors and director nominees, including:
- Experience and Qualifications: the particular experience, qualifications, attributes or skills that led the company’s board to conclude as of the time that a filing containing the new disclosure is made with the SEC that the person should serve as a director of the company, including information about the person’s particular areas of expertise or other relevant qualifications, if material.6 This new disclosure is required for all nominees and for all directors, including those not up for reelection in a particular year, as well as for any nominee for director put forward by another proponent, in which case the information would be required in the proxy soliciting materials of that proponent.7
- Other Directorships: any directorships at public companies and registered investment companies that each director and nominee held at any time during the past five years, expanding the current requirement to disclose current directorships only.
- Legal Proceedings: legal proceedings involving directors, nominees as well as executive officers, going back 10 years (instead of the current 5 years). The SEC also expanded the list of proceedings that must be disclosed to include (i) judicial or administrative proceedings resulting from involvement in mail or wire fraud or fraud in connection with any business entity; (ii) judicial or administrative proceedings based on the violation of the federal or state securities, commodities, banking or insurance laws or regulations or any settlements (other than settlement of a civil proceeding among private parties) to such actions; and (iii) any disciplinary sanctions or orders imposed by a stock, commodities or derivatives exchange or other self-regulatory organization. Consistent with the current disclosure requirement regarding legal proceedings, the additional legal proceedings will not need to be disclosed if they are not material to an evaluation of the ability or integrity of the director or director nominee.
The SEC adopted an amendment to Item 407(c) of Regulation S-K, not included in the proposed amendments, that requires disclosure of whether, and if so how, a nominating committee considers diversity in identifying nominees for director. The amendment responds to commentators’ observations that there is a meaningful relationship between diverse boards and improved corporate financial performance, and that diverse boards can help companies effectively recruit talent and retain employees.
If the nominating committee or the board has a policy with regard to the consideration of diversity in identifying director nominees, the final rules require disclosure of how this policy is implemented and how the nominating committee or the board assesses the effectiveness of its policy.
The rule does not contain a definition of “diversity,” noting that companies should be allowed to define diversity in ways they consider appropriate.
Board Leadership Structure and the Board’s Role in the Risk Oversight Process
The final rules amend Item 407 of Regulation S-K to require disclosure regarding:
- The board leadership structure, including:
- Whether and why the company has combined or separated the chief executive officer and chairman positions, and why the company believes its board leadership structure is the most appropriate for the company at the time of the filing; and
- In cases where the roles of chief executive officer and chairman are combined, disclosure of whether and why a company has a lead independent director and the specific role of such director in the leadership of the company.
- The board’s role in the oversight of risk, such as through the whole board, a separate risk committee or the audit committee. This requirement is intended to provide investors with an understanding of how the board administers its oversight function, such as through the entire board, a separate risk committee or the audit committee. The SEC suggests that credit risk, liquidity risk and operational risk are among the risks that should be addressed. Companies should consider disclosing the relationship between the board and senior management in managing the material risks facing the company, and may also wish to address whether the individuals who supervise the day-to-day risk management responsibilities report directly to the board or to a committee (or how the board of committee otherwise receives information from such individuals).
Timely Reporting of Voting Results
Proposed amendments to Form 8-K have been adopted, eliminating the requirement to disclose shareholder voting results on Forms 10-Q and 10-K. Under new Item 5.07 of Form 8-K, companies must disclose the results of a shareholder vote within four business days after the end of the meeting at which the vote was held, including a brief description of each matter voted on.8
If final results are not known within four business days of the meeting, then preliminary voting results must first be filed within four business days after the meeting and an amended Form 8-K must be filed within four business days after definitive results are known. If companies are concerned that the disclosure of preliminary voting results could be confusing to investors, they may include additional disclosure that helps to put the preliminary voting disclosure in a proper context. The amendments to Form 8-K are not intended to preclude a company from announcing preliminary voting results during the meeting of shareholders at which the vote was taken and before filing the Form 8-K, without regard to whether the company webcasts the meeting.
Effective Date and Transition Guidance
The new rules become effective on February 28, 2010. Recent SEC guidance provides the following transition guidance:
- Fiscal Years Ending On or After December 20, 2009. Issuers with fiscal years ending on or after December 20, 2009, must comply with the new rules if their Form 10-K and proxy statement are filed on or after February 28, 2010. If such an issuer is required to file a preliminary proxy statement and expects its definitive proxy statement to be filed on or after February 28, 2010, then the preliminary proxy statement must also comply with the new rules. If such an issuer files its Form 10-K for 2009 before February 28, 2010 and its proxy statement on or after February 28, 2010, only the proxy statement must comply with the new rules.
- Fiscal Years Ending Before December 20, 2009. Issuers with fiscal years ending before December 20, 2009, are not required to comply with the new rules, even if their 2009 Form 10-K and 2010 proxy statement are filed on or after February 28, 2010. As a result, a reporting issuer with a 2009 fiscal year that ends before December 20, 2009 will not be required to comply with the Regulation S-K amendments until the filing of its Form 10-K for fiscal year 2010.
- Voluntary Compliance. Issuers who are not required to comply with new rules may do so on a voluntary basis, but if an issuer chooses to comply with the amendments to the Summary Compensation Table and Director Compensation Table, it must also comply with all of the other Regulation S-K amendments that apply to the form filed. An issuer may provide the other new disclosures without having to comply with all of the new requirements.
- New SEC Registrants. New registrants, such as IPO issuers, filing its registration statement on or after December 20, 2009, must comply with the Regulation S-K amendments in order for the registration statement to be declared effective on or after February 28, 2010.
- Reporting of Voting Results. The amendments to Form 8-K requiring that companies report voting results on that form is effective for any shareholder meeting that takes place on or after February 28, 2010. For shareholder meetings taking place before February 28, 2010, an Item 5.07 Form 8-K is not required.
Recommended Action Items
To comply with the new rules, companies should consider the following action items in connection with preparing their Annual Report on Form 10-K and proxy statement:
- O&D Questionnaires. Revise director and officer questionnaires to collect information regarding (i) directorships held by directors and nominees at public companies and registered investment companies during the last five years, (ii) director and nominee qualifications and (iii) the expanded list of legal proceedings within the last ten years.
- Risks Relating to Compensation Policies and Procedures. Conduct an assessment of, and discuss with your Compensation Committee and the full Board, the risks arising from your compensation policies and practices for all employees, including executive officers, to determine whether they are reasonably likely to have a material adverse impact on the company.
- Board Oversight of Risk Management. Analyze and review with your Board of Directors, the Board’s role in the oversight of risk management.
- Board Leadership Structure. Analyze, and have your Board of Directors consider, the Board leadership structure (combined or separate CEO and Board chair positions) and the reasons therefore to determine whether the current structure is appropriate for the company, including, if the CEO and Board chair positions are combined, determining whether the Board should have a lead independent director to chair meetings of the independent directors and what role the lead independent director should play in the leadership of the company.
- Diversity Policies. Review and discuss with your Nominating Committee and the full Board, the Board’s policy regarding diversity in identifying director candidates and assess its effectiveness; if the company does not have a diversity policy, consider whether to adopt one.
- Compensation Consultants. Identify and review all services provided by compensation consultants and their affiliates and the fees for these services; implement disclosure controls and procedures with respect to such services and fees; and consider whether to adopt pre-approval or monitoring policies with respect to services provided by compensation consultants. Consider need to amend agreements with compensation consultants to allow disclosure of fees.
- Equity Awards. Recompute the value for stock awards and option grants in the compensation tables based on the aggregate grant date fair value for all years presented; with respect to equity awards with performance conditions, implement disclosure controls and procedures to tract the grant date fair value based on the probable outcome as well as the maximum value assuming the highest performance conditions; and determine whether the new grant date value reporting requirement will affect the company’s list of named executive officers.
- Preparation of Disclosure. As directors will have a keen interest in what is said about them, begin drafting now the revised biographical information for directors to add disclosure on the experience, skills and qualifications of each director, as well as the new disclosure regarding the Board leadership structure; and
- Allow Additional Review Time. Allow Board members additional time for review of the draft proxy statement.
For more information about these developments, please contact the authors of this Update.
This publication is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Recipients of this publication are advised to seek specific legal advice by contacting members of Osler regarding any specific legal issues. The information in this publication is current as of its original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose. Receipt of or use of this publication does not create a lawyer-client relationship.
1 The proposed amendments to SEC rules regarding the proxy solicitation process were deferred for consideration along with the SEC proposals to facilitate shareholder director nominations. The SEC has stated it expects to address these rule proposals early in 2010.
2 Smaller reporting companies will not be required to provide the new disclosure.
3 The SEC did not adopt a proposed amendment to Instruction 2 to the salary and bonus column of the Summary Compensation Table which would have provided that companies would not be required to report in those columns the amount of salary or bonus forgone at a named executive officer’s election and the non-cash awards received instead of salary or bonus would be reported in the column applicable to the form of award elected. Companies will continue to report the forgone amounts in the salary or bonus column, with footnote disclosure of the receipt of non-cash compensation that refers to the Grants of Plan-Based Awards Table where the stock, option or non-equity incentive plan award the named executive officer elected is reported. In addition, the SEC decided not to rescind, as was proposed, the requirement to report the full grant date fair value of each equity award in the Grants of Plan-Based Awards Table and the Director Compensation Table.
4 In response to a number of comments, the SEC also indicated it would not object if companies voluntarily add a column captioned “Value of unexercised in-the-money options/SARs at fiscal year end ($)” to the Outstanding Awards at Fiscal Year-End Table to report the fiscal year end intrinsic value of outstanding option and stock appreciation rights.
5 As proposed, the SEC has amended Item 407 of Regulation S-K to clarify that the current disclosure requirements under this item are not triggered for a compensation consultant whose only services with regard to executive or director compensation were limited to broad-based, non-discriminatory plans that did not discriminate in favor of executive officers or directors of the company, such as 401(k) plans or health insurance plans.
6 Unlike the proposed rules, the final rules do not require disclosure of the experience, qualifications, attributes or skills to serve on a board committee. However, if a director or a nominee has been placed on the board because of a particular qualification, attribute or experience related to service on a specific committee, such as the audit committee, then this should be disclosed under the new requirements as part of the individual’s qualifications to serve on the board.
7 The SEC did not, as originally proposed, eliminate the requirements in Item 407(c)(2)(v) of Regulation S-K regarding the specific minimum qualifications and specific qualities or skills used by the nominating committee.
8 New Item 5.07 also requires to a description of the terms of any settlement between the company and any participant (as defined in Instruction 3 to Item 4 of Schedule 14A) terminating any solicitation subject to SEC Rule 14a-12(c), including the cost or anticipated cost to the registrant.