SEC Issues Proposed Rules on Pay for Performance Disclosure

Overview

At an open meeting on April 29, 2015, the SEC issued proposed rules under Section 953(a) of the Dodd-Frank Act that, if adopted, would require companies to provide new tabular disclosure in proxy and information statements of the relationship between executive compensation actually paid by a company and the company’s financial performance. The proposal was approved by a 3 to 2 vote, with Chair White being joined by Commissioners Aguilar and Stein in voting for the proposal while Commissioners Gallagher and Piwowar voted against the proposal.

Comments on the proposed rules should be received by the SEC on or before July 6, 2015. To review the SEC’s proposing release, click here. All comment letters received on the proposal are posted here on the SEC’s website.

Proposed Rules

The proposed rules would require companies to disclose in a new table in the proxy or information statement the following information for each covered fiscal year:

• Executive compensation actually paid to the principal executive officer (PEO), which would be the total compensation as disclosed in the Summary Compensation Table already required in the proxy statement modified 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 value of equity awards at vesting rather than when granted. Therefore, for purposes of this table, equity awards would be considered actually paid on the date of vesting and valued at fair value on that date, rather than fair value on the date of grant as required in the Summary Compensation Table. The amount disclosed for the remaining named executive officers identified in the Summary Compensation Table would be the average compensation actually paid to those executives;
• The total executive compensation reported in the Summary Compensation Table for the PEO and an average of the reported amounts for the remaining named executive officers;
• The company’s cumulative total shareholder return, using the definition of total shareholder return (TSR) included in Item 201(e) of Regulation S-K, which sets forth an existing requirement for a stock performance graph; and
• The cumulative TSR of the companies in a peer group, using the peer group identified by the company in its stock performance graph or in its Compensation Discussion and Analysis.

Using the information presented in the table, companies would be required to describe (i) the relationship between the executive compensation actually paid and the company’s TSR, and (ii) the relationship between the company’s TSR and the TSR of its selected peer group. This disclosure could be described as a narrative, graphically or a combination of the two.

The disclosure would be required for the last five fiscal years (or three in the case of smaller reporting companies). However, the proposed rules contemplate a phase-in for all companies whereby companies, other than smaller reporting companies, would be required to provide the information for three years in the first proxy or information statement in which they provide the disclosure, adding another year of disclosure in each of the two subsequent annual proxy filings that require this disclosure. Smaller reporting companies would initially provide the information for two years, adding an additional year in their subsequent annual proxy or information statement that requires this disclosure. Importantly, the proposed rules would not apply to emerging growth companies, which are exempt from the statutory requirement. However, business development companies would be subject to the proposed rules.

The proposed table is presented below.

For more information on this or other SEC rulemaking matters, please contact the Bass, Berry & Sims attorney with whom you usually work.