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The SEC's Brand New 'Say
Last week, the SEC approved new "say-on-pay" regulations that require issuers to hold advisory shareholder votes on executive compensation. SEC new regulations also require issuers to conduct shareholder votes on how often such advisory "say-on-pay" votes are conducted, disclose "golden parachute" compensation arrangements, and conduct advisory votes on golden parachutes certain circumstances. SEC new rules were originally proposed in October and were mandated by Section 951 of the Dodd-Frank Act. SEC release adopted new Exchange Act Rule 14a-21 and makes amendments to various other proxy rules, schedules, forms and Regulation S-K. Votes on Executive Compensation
New Rule 14a-21 requires an issuer conducting a proxy solicitation for a shareholder meeting to include two new resolutions. first resolution,[link widoczny dla zalogowanych], required by Rule 14a-21(a), calls for a shareholder advisory vote on an issuer executive compensation,[link widoczny dla zalogowanych], as disclosed pursuant to Item 402 of Regulation S-K. Rule 14a-21(b), the second resolution calls for a shareholder vote on whether to hold such advisory votes every one, two or three years. "scheduling votes" must be conducted at least once every six years. 14a-21 took immediate affect with respect to most issuers,[link widoczny dla zalogowanych], and indeed,[link widoczny dla zalogowanych], one issuer has already seen their executive compensation plans get rejected by their shareholders (though, as noted, the votes are non-binding). reporting companies need not conduct their first votes under Rule 14a-21(a) or (b) until January 2013. required to seek shareholder approval of executive compensation because of their participation in the TARP program under Exchange Act Rule 14a-20 are excused from compliance with new Rule 14a-21(a) and (b) until after their exit from the TARP program.
The SEC amendments to Item 402 require an issuer to disclose whether and how shareholder votes concerning executive compensation has affected the issuer decisions,[link widoczny dla zalogowanych]. SEC also added a note to Rule 14a-8(a)(10) allowing issuers to generally exclude future shareholder proposals concerning "say-on-pay" votes. and Votes on Golden Parachutes
Under the new regulation, issuers must also disclose and allow shareholder votes on "golden parachute" compensation packages offered to issuer employees in connection with merger transactions. SEC release added subsection (t) to Item 402 of Regulation S-K, which requires issuers to disclose certain categories of compensation information "that is based on or otherwise relates to an acquisition,[link widoczny dla zalogowanych], merger, consolidation, sale or other disposition of all or substantially all assets of the issuer." disclosure must occur in the proxy solicitation to approve a merger or other transaction or in the solicitation for an annual meeting at which disclosed transaction agreements will be subject to a shareholder vote. compensation information to be disclosed includes the value of severance payments, and option awards subject to accelerated vesting,[link widoczny dla zalogowanych], cancellation payments for stock and option awards, pension and deferred compensation benefits,[link widoczny dla zalogowanych], perks, and tax reimbursements, among other things. amendments to the rule also require issuers to discuss the factors relevant to understanding the golden parachute data presented,[link widoczny dla zalogowanych], including the relevant triggering events, how payments would be made,[link widoczny dla zalogowanych], and conditions attached to such payments.
The instructions to new subsection (t) provide guidance to issuers on calculating the value of golden parachutes,[link widoczny dla zalogowanych], including as to the proper date and stock price to use. instructions also require issuers to include footnotes quantifying several of the forms of compensation disclosed.
New Rule 14a-21(c) requires an issuer submitting an acquisition, merger or similar transaction to a shareholder vote to include a separate resolution allowing a shareholder advisory vote on golden parachute compensation disclosed pursuant to Item 402(t). shareholders had previously voted on golden parachute arrangements in their annual vote,[link widoczny dla zalogowanych], a second vote is not required. vote is necessary by the shareholders of a target company on any agreements between an acquiring company and the employees of the target company. While I try to keep these posts timely,[link widoczny dla zalogowanych], I was in an undisclosed location yesterday evening and was thus unable to update the blog. Many apologies.) Egypt is up in arms and the markets are swooning, but the securities law world is just chugging along. I apologize for not providing any recent in-depth articles,[link widoczny dla zalogowanych], but my schedule has been a bit touch-and-go. Some are coming down the pipe, though, I promise. company has already failed to get shareholders to consent to executive compensation packages [TheCorporateCounsel] Regulatory attorneys do not think that the Financial Crisis Inquiry Commission's report.
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Closing Bell Update for February 1,[link widoczny dla zalogowanych], 2011 Republicans on the House Financial Services Committee are planning to "identify and remedy" problems in the Dodd-Frank Act [BusinessWeek] The CFTC approved a license for New York Portfolio Clearing to clear interest-rate futures [BBG] The SEC will vote tomorrow on whether to propose rules governing platforms for trading equity-based swaps [Reuters] As part of what I guess is a charm offensive, FINRA CEO Rick Ketchum wants investment advisers to know that they need not fear him [FinancialAdvisor] A Q with Elizabeth Warren, the woman who would be head of the Consumer Financial Protection Bureau established by the Dodd-Frank Act [LAT] For those of you who never took Securities Regulation in law school or had the good sense to skip law school altogether (I am in the first camp), AdvisorOne has put out a little article that is basically the first chapter of the Sec Reg textbook, about the genesis of modern securities regulation [AdvisorOne]
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