securities subsection luncheon business law section – colorado bar association february 16, 2006...
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Securities Subsection LuncheonBusiness Law Section – Colorado Bar Association
February 16, 2006
EXECUTIVE COMPENSATION DISCLOSURE
Deborah J. FriedmanDavis Graham & Stubbs LLP
Introduction
SEC Release, January 27, 2006
• Interpretive guidance on perquisites
• Executive compensation disclosure changes
• Form 8-K changes
Interpretive Guidance - Perquisites
• Applicable to current disclosure• Is A Perk, if it confers a “direct or indirect benefit
that has a personal aspect”• Is Not A Perk, if it is “integrally and directly
related” to performance of executive’s duties• Company’s determination that an item is
“ordinary” or “necessary” business expense, or for benefit or convenience of company, is irrelevant
Executive Compensation Disclosure Changes
Proposed to be effective for:
• Form 10-Ks filed for fiscal years ending 60 days or more after final rules published
• Proxy statements filed 90 days or more after publication
• Registration statements becoming effective 120 days or more after publication
Compensation Discussion and Analysis (CD&A)
• Focus on narrative discussion of material factors and principles underlying executive compensation policies and decisions
• Required disclosure: Compensation objectives Description and purpose of each element Conventions for determining amount of each element
• “Filed” not “furnished”• Replaces current compensation committee report and
performance graph
Summary Compensation Table
• Revise existing table• New columns:
Total Compensation Stock Awards Option Awards Non-Stock Incentive Plan Compensation All Other Compensation – includes perquisites
with an aggregate value of $10,000 or more
Supplemental Tables
2 new tables:
• Grants of Performance-Based Awards
• Grants of All Other Equity Awards
Equity Compensation Tables
2 new tables replace current table:
• Outstanding Equity Awards at FiscalYear-End
• Option Exercises and Stock Vested
Post-Employment Compensation
2 new tables replace Pension Plan Table:• Retirement Plan Potential Annual Payments
and Benefits• Nonqualified Defined Contribution and Other
Deferred Compensation
Expanded narrative :• Termination and change-in-control agreements
Non-Employee Director Compensation Table
• Similar to revised Summary Compensation Table• Columns:
Total Compensation Cash Fees Stock and Option Awards Non-stock Incentive Plan Compensation All Other Compensation
• No supplemental tables, but footnote re equity awards at year-end
Related Person Disclosures
• Consolidates related person disclosure
• Disclosure based on whether person has direct or indirect material interest in transaction
• $120,000 threshold for disclosure (formerly $60,000)
• Describe material features of policies and procedures for review, approval or ratification of reportable related person transactions
Director Independence and Corporate Governance
• Narrative explanation of independence status of directors under company’s policies
• Disclosure about compensation committee similar to that required for audit and nominating committees
Form 8-K
Current Rules:• Item 1.01 – disclose within 4 business days
entry into a material definitive contract (S-K Item 601(b)(10)) outside ordinary course of business
• Item 5.02 – disclose within 4 business days appointment or departure of directors or specified officers
Form 8-K
New Rules:• Effectiveness – triggering events 60 days or more after
final rules published• Item 1.01 – Employment compensation arrangements
excluded• Item 5.02 – Proposed new Item 5.02(e) would include:
information regarding retirement, resignation, or termination of NEO, including brief description of any material plan, contract or arrangement for PEO, PFO, and NEOs, brief description of any material new compensatory plan, contract, arrangement, grant or award