Following seven years of “will they or won’t they,” on August 25, 2022, the SEC adopted final rules requiring information reflecting the relationship between executive compensation actually paid by a company and the company’s financial performance (“Pay vs. Performance”). The rules were initially proposed in April 2015, and then languished for years (see HERE). On January 27, 2022, the SEC re-opened the comment period and expanded the proposal to include additional performance metrics (see HERE).
The SEC administration under Gary Gensler has been actively tackling compensation and insider trading related issues, including re-visiting executive compensation clawback rules (see HERE); publishing new guidance on disclosures and accounting for spring-loaded compensation awards (see HERE); proposing amendments to Rule 10b5-1 insider trading plans (see HERE); and proposing new share repurchase program disclosure rules (see HERE).
The amendments require companies to provide a table disclosing specified executive compensation and financial performance measures for their five most recently completed fiscal years in any proxy or information statement filed under Section 14 of the Exchange Act. With respect to the measures of performance, a company will be required to report its total shareholder return (TSR), the TSR of companies in the company’s peer group, its net income, and a financial performance measure chosen by the company itself. Using the information presented in the table, companies will be required to describe the relationships between the executive compensation actually paid and each of the performance measures, as well as the relationship between the company’s TSR and the TSR of its selected peer group. A company will also be required to provide a list of three to seven financial performance measures that it determines are its most important performance measures for linking executive compensation actually paid to company performance.
Smaller reporting companies will be subject to scaled disclosure requirements under the rules. Companies must begin to comply with the new disclosure requirements in proxy and information statements that are required to include Item 402 executive compensation disclosure for fiscal years ending on or after December 16, 2022.
Section 953(a) of the Dodd-Frank Act added Section 14(i) to the Securities Exchange Act of 1934 (“Exchange Act”). Section 14(i) requires the SEC to adopt rules mandating companies to disclose a clear description of any compensation required to be disclosed Item 402 of Regulation S-K, in any proxy or consent solicitation material for an annual meeting of shareholders. Item 402 in turn sets forth the disclosure requirements related to executive compensation, including compensation disclosure and analysis (“CD&A”).
The amendments add new Item 402(v) to require a company to describe the relationship between the executive compensation actually paid and the financial performance of the company over the time horizon required by the rules.
Although the current rules require many metrics and details on executive compensation, none previously have required a specific disclosure on the relationship between pay and performance. The Compensation Discussion and Analysis (CD&A) required by Item 402(b) requires an explanation of “all material elements of the registrant’s compensation of the named executive officers” and requires general discussions of performance including disclosure of any bonus structures and performance-based compensation. The new disclosure requirements will supplement this information by providing a factual description of how the executive compensation actually paid related to the financial performance of the company.
The final rules require a company to include a new table disclosing compensation “actually paid” to the principal executive offer or CEO and to the other named executive officers and the corresponding “total compensation” amounts for the prior five fiscal years or three fiscal years for smaller reporting companies. The five- or three-year look-back, as applicable, is subject to a phase-in period for the new rules. The disclosure must be included in any proxy or information statement for which Item 402 disclosure is required.
With respect to the measures of performance, a company will be required to report its total shareholder return (TSR), the TSR of companies in the company’s peer group, its net income, and a financial performance measure chosen by the company itself. Using the information presented in the table, companies will be required to describe the relationships between the executive compensation actually paid and each of the performance measures, as well as the relationship between the company’s TSR and the TSR of its selected peer group. A company will also be required to provide a list of three to seven financial performance measures that it determines are its most important performance measures for linking executive compensation actually paid to company performance.
The table must include:
- The total executive compensation of the principal executive officer (“PEO”) and the average of the total compensation of other named executive officers (“NEO”) as reported in the summary compensation table (note the summary compensation table is already a required Item 402 disclosure in proxy and information statements);
- The executive compensation “actually paid” to the PEO and the average of the executive compensation actually paid to the other NEO. The new proposed rules delineate the required elements and calculation for this disclosure;
- The cumulative total shareholder return (TSR), calculated in the same manner as the performance graph already required by current SEC rules.
The table should be set up as follows. Smaller reporting companies are exempt for the items with the asterisk.
Summary Compensation Table Total
Compensation Actually Paid
|Average Summary Compensation Table Total for Non-PEO
Average Compensation Actually Paid to Non-PEO
|Value of Initial Fixed $100
Investment Based On:
Peer Group Total Shareholder
Item 402 defines the NEOs for whom disclosure is required as: (i) all individuals serving as the registrant’s principal executive officer (“PEO”) or acting in a similar capacity during the last completed fiscal year, regardless of compensation level, (ii) all individuals serving as the registrant’s principal financial officer (“PFO”) or acting in a similar capacity during the last completed fiscal year, regardless of compensation level, (iii) the registrant’s three most highly compensated executive officers other than the PEO and PFO who were serving as executive officers at the end of the last completed fiscal year, and (iv) up to two additional individuals for whom Item 402 of Regulation S-K disclosure would have been provided but for the fact that the individual was not serving as an executive officer of the registrant at the end of the last completed fiscal year.
Companies are required to use the information in the table to provide clear descriptions of the relationships between compensation actually paid and three measures of financial performance. That is, the company must describe the relationship between (i) the executive compensation actually paid to the company’s PEO and (ii) the average of the executive compensation actually paid to the company’s remaining NEOs to (a) the cumulative TSR of the company, (b) the net income of the company, and (c) the company’s Company-Selected Measure, over the three- or five-year period. Companies are also required to provide a clear description of the relationship between its TSR and the TSR of a peer group chosen by it, for the same time period. Companies have flexibility as to the format in which to present the descriptions of these relationships, whether graphical, narrative, or a combination of the two. Companies will also have the flexibility to decide whether to group any of these relationship disclosures together, but any combined description of multiple relationships must be “clear.”
A company must also provide an unranked list of the most important financial performance measures used by it to link executive compensation actually paid to the company’s NEOs during the last fiscal year, to company performance. Although companies may include non-financial performance measures in this list, they must select the Company-Selected Measure for the table from the financial performance measures included in this list. Also, the Company-Selected Measure must be the financial performance measure that in the company’s assessment represents the most important performance measure (that is not otherwise required to be disclosed in the table) used by the company to link compensation actually paid to its NEOs, for the most recently completed fiscal year, to company performance
The new disclosure requirements will not apply to emerging growth companies or foreign private issuers. Smaller reporting companies will only be required to present such descriptions with respect to the measures they are required to include in the table and for their three, rather than five, most recently completed fiscal years.
Disclosure of compensation “actually paid”
The new rules delineate the elements of and calculation for the required compensation “actually paid” disclosure. For smaller reporting companies, the compensation “actually paid” is the executive compensation reported in the Summary Compensation Table disclosure already required to be disclosed in the proxy and information statements in accordance with existing Item 402. All companies other than smaller reporting companies must then modify the disclosed amount to exclude changes in actuarial present value of benefits under defined benefit and actuarial pension plans that are not attributable to the applicable year of service, and to include the fair value of equity awards at vesting rather than when granted.
Relationship with Total Shareholder Return (TSR)
As touched on above, the new rules require companies to measure financial performance using TSR as defined in Item 201(e) of Regulation S-K and to make a comparison with the TSR of the company and the compensation actually paid for both the CEO and an average of all the other named executive officers. Using the values disclosed in the table, the company must disclose the relationship between the executive compensation actually paid and the company’s TSR. The company can make the disclosure either using a narrative discussion, a graph or a combination of both. Interestingly, the company has flexibility as to the location of the discussion and it is not required to be included in the CD&A section. Companies that are not smaller reporting companies must also provide disclosure on the relationship between the company’s TSR and the TSR of a peer group as chosen by the reporting company.
Additional and Supplemental Disclosure
A company may provide additional and supplemental disclosure to the extent that such additional disclosure is useful to an understanding of the pay vs. performance discussion. As with any information, the additional information cannot be misleading or detract from the basic disclosure elements required by the new proposed rules.
Inline XBRL Tagging
The new disclosure must be tagged using Inline XBRL.
The rule allows for a phase-in period. In the first filing following the effectiveness of the proposed rule, companies will only be required to provide two years of disclosure and will need to add an additional year of disclosure for each subsequent year’s filing until the required number of years of disclosure has been achieved (3 years for smaller reporting companies and 5 years for all others).
Securities attorney Laura Anthony and her experienced legal team provide ongoing corporate counsel to small and mid-size private companies, OTC and exchange traded public companies as well as private companies going public on the Nasdaq, NYSE American or over-the-counter market, such as the OTCQB and OTCQX. For more than two decades Anthony L.G., PLLC has served clients providing fast, personalized, cutting-edge legal service. The firm’s reputation and relationships provide invaluable resources to clients including introductions to investment bankers, broker-dealers, institutional investors and other strategic alliances. The firm’s focus includes, but is not limited to, compliance with the Securities Act of 1933 offer sale and registration requirements, including private placement transactions under Regulation D and Regulation S and PIPE Transactions, securities token offerings and initial coin offerings, Regulation A/A+ offerings, as well as registration statements on Forms S-1, S-3, S-8 and merger registrations on Form S-4; compliance with the Securities Exchange Act of 1934, including registration on Form 10, reporting on Forms 10-Q, 10-K and 8-K, and 14C Information and 14A Proxy Statements; all forms of going public transactions; mergers and acquisitions including both reverse mergers and forward mergers; applications to and compliance with the corporate governance requirements of securities exchanges including Nasdaq and NYSE American; general corporate; and general contract and business transactions. Ms. Anthony and her firm represent both target and acquiring companies in merger and acquisition transactions, including the preparation of transaction documents such as merger agreements, share exchange agreements, stock purchase agreements, asset purchase agreements and reorganization agreements. The ALG legal team assists Pubcos in complying with the requirements of federal and state securities laws and SROs such as FINRA for 15c2-11 applications, corporate name changes, reverse and forward splits and changes of domicile. Ms. Anthony is also the author of SecuritiesLawBlog.com, the small-cap and middle market’s top source for industry news, and the producer and host of LawCast.com, Corporate Finance in Focus. In addition to many other major metropolitan areas, the firm currently represents clients in New York, Los Angeles, Miami, Boca Raton, West Palm Beach, Atlanta, Phoenix, Scottsdale, Charlotte, Cincinnati, Cleveland, Washington, D.C., Denver, Tampa, Detroit and Dallas.
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Ms. Anthony is an honors graduate from Florida State University College of Law and has been practicing law since 1993.
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