new sec disclosure rules for executive compensation

November 2005 Presentation to Pegasus Corp.1GREENBERG TRAURIG, LLP | ATTORNEYS AT LAW | WWW.GTLAW.COM

New SEC Disclosure Rules for Executive Compensation

October 5, 2006

Mindy Leathe(305) 579-0808

Thomas LaWer(605) 289-7830

Steven B. Lapidus(305) 579-0509

GREENBERG TRAURIG, LLP | ATTORNEYS AT LAW | WWW.GTLAW.COM - 2 -

Final new pay disclosure rules released by SEC on August 11, 2006:

Apply to proxy and information statements filed after December 15, 2006, and Forms 10-K filed with respect to fiscal years ending on or after December 15, 2006.

First major change since 1992.

New rules driven by desire to:

―Provide better and more complete information for investors.

―Get to “one number” for pay for senior executives.

―Provide disclosure of “hidden pay – deferred compensation, SERPs, perquisites, change in control benefits.

Overview


Key outcomes include substantial changes to disclosure requirements: Compensation Discussion & Analysis (CD&A).

New Summary Compensation Table with a total pay figure for each executive.

Supporting tables for:―Equity incentives.

» Grants of Plan-Based Awards» Outstanding Equity Awards at Fiscal Year-End» Option Exercises and Stock Options

―Deferred compensation arrangements.» Pension Benefits (for qualified and non-qualified defined benefit plans)» Non-Qualified Deferred Compensation (for non-qualified defined

contribution plans)―Director compensation.

Expanded narrative discussion to support each table.

Narrative description of change in control and termination compensation and benefits.

Overview


Compensation Discussion & Analysis

Purpose: To provide narrative overview that puts into context compensation disclosure provided elsewhere.

Must answer 6 key questions:

What are the objectives of the company’s compensation program?

What is the compensation program designed to reward?

What is each element of compensation?

Why does the company choose to pay each element?

How does the company determine the amount (and, where applicable, the formula) for each element?

How does each element, and the company’s decisions regarding that element, fit into the company’s overall compensation objectives and affect decisions regarding other elements?



The CD&A:

Is intended to be “principles-based” – it should provide illustrative examples of compensation policies.

Should be sufficiently precise to identify material differences in policies and decisions for individual executives where appropriate.

Comprehensive – should include discussion of both in-service and post-termination compensation.



Examples of information to be disclosed may include, in a given case, among other things, the following 15 items: The policies for allocating between long-term and currently paid out

compensation;

The policies for allocating between cash and non-cash compensation, and among different forms of non-cash compensation;

For long-term compensation, the basis for allocating compensation to each different form of award (such as the relationship of the award to the achievement of the registrant’s long-term goals, management’s exposure to downside equity performance risk, correlation between cost to registrant and expected benefits to the registrant);

How the determination is made as to when awards are granted, including awards of equity-based compensation such as options;

What specific items of corporate performance are taken into account in setting compensation policies and making compensation decisions (specific target levels need not be disclosed if disclosure would result in competitive harm to registrant, but if don’t disclose targets, must disclose how difficult it will be to achieve undisclosed target levels);



How specific forms of compensation are structured and implemented to reflect these items of the registrant’s performance, including whether discretion can be or has been exercised (either to award compensation absent attainment of the relevant performance goal(s) or to reduce or increase the size of any award or payout), identifying any particular exercise of discretion, and stating whether it applied to one or more specified named executive officers or to all compensation subject to the relevant performance goal(s);

How specific forms of compensation are structured and implemented to reflect the named executive officer’s individual performance and/or individual contribution to these items of the registrant’s performance, describing the elements of individual performance and/or contribution that are taken into account;

Registrant policies and decisions regarding the adjustment or recovery of awards or payments if the relevant registrant performance measures upon which they are based are restated or otherwise adjusted in a manner that would reduce the size of an award or payment;

The factors considered in decisions to increase or decrease compensation materially;



How compensation or amounts realizable from prior compensation are considered in setting other elements of compensation (e.g., how gains from prior option or stock awards are considered in setting retirement benefits);

With respect to any contract, agreement, plan or arrangement, whether written or unwritten, that provides for payment(s) at, following, or in connection with any termination or change-in-control, the basis for selecting particular events as triggering payment (e.g., the rationale for providing a single trigger for payment in the event of a change-in-control);

The impact of the accounting and tax (including Section 162(m) treatments of the particular form of compensation;

The registrant’s equity or other security ownership requirements or guidelines (specifying applicable amounts and forms of ownership), and any registrant policies regarding hedging the economic risk of such ownership;

Whether the registrant engaged in any benchmarking of total compensation, or any material element of compensation, identifying the benchmark and, if applicable, its components (including component companies); and

The role of executive officers in determining executive compensation.


Options Disclosure

SEC commentary indicates that the CD&A should discuss the Company’s policies, procedures and programs for the timing and pricing of options.

Examples of questions to be addressed include:

Does the company have any policy or practice to time option grants to executives in coordination with the release of material non-public information?

Has the company timed the release of material non-public information in order to affect the value of executive compensation?

Does the company set its grant of options to new executives in coordination with the release of material non-public information?

How does the policy or practice fit in the context of the company’s policy or practice with regard to options grants to employees generally?

What is the role of executive officers in the company’s policies or practice of option timing?

What is the role of the compensation committee in approving and administering such policies and did the committee delegate any aspect of the actual administration of such policy or practice?


New Compensation Committee Report

New shortened report that must state that:

―Compensation Committee has reviewed and discussed the CDA with management.

―Based on that review and discussion, the Compensation Committee recommended to the Board that the CDA be included in Form 10-K, Proxy Statement or Information Statement.

Names of Compensation Committee members must appear at the bottom of the report.

This report is “furnished” and not deemed to be “soliciting material” or to be “filed” with SEC.


Compensation Tables

Three categories of compensation tables are now required: Current compensation for the last year and two previous years:

― Summary Compensation Table.

― Grants of Plan-Based Awards: a supporting table related to equity/LT incentives.

― Phase in of information over 3 years.

Holdings of equity-based interests that are potential sources of future earnings and realizations of those interests, including:

― Option exercise gains.

― Restricted stock vesting.

Retirement and other post-employment compensation:

― Retirement plans, both qualified and non-qualified.

― Deferred compensation arrangements.

― Potential severance and change-in-control outcomes.

All tables should include narrative disclosure to enhance investor understanding.


Summary Compensation Table

Goal is to provide a clear picture of total compensation for each named executive.

Named executives to be included:

―Principal Executive Officer (PEO)

―Principal Financial Officer (PFO)

―Next 3 highest paid executive officers on last day of fiscal year (determined on a total compensation basis, excluding increases in actuarial value of pension benefits and above-market earnings on non-qualified deferred compensation instead of salary and bonus only as under current rules)

―Up to 2 additional individuals – those whom disclosure would have been required but for the fact that they ceased serving as executive officers during the last fiscal year



Name and

Principal Position

Year Salary ($)

Bonus($)

Stock Awards

($)

Option Awards

($)

Non-Equity Incentive

Plan Compensatio

n ($)

Change in Pension Value

and Nonqualified

Deferred Compensation

Earnings($)

All Other Compensati

on($)

Total($)

(a) (b) (c) (d) (e) (f) (g) (h) (i) (j)

PEO ____

____

____

PFO ____

____

____

A ____

____

____

B ____

____

____

C ____

____

____



Key changes include:

Salary/Bonus columns

―Non-cash compensation is not to be disclosed in these columns

―Bonuses payable in accordance with pre-established performance targets will now be reportable under the “Non-Equity Incentive Plan Compensation” column

Stock Awards/Option Awards

―Stock Awards are defined as stock-related awards that derive their value from the company’s equity securities or permit settlement by issuance of the company’s equity securities within the scope of FAS 123R for financial reporting, and include restricted stock, RSU’s, phantom stock and phantom units, as well as other awards measured by or settled in stock.

―Option Awards are defined as options, SARs and similar equity-based compensation instruments that have option-like features that are within the scope of FAS 123R



Key changes include (continued):

Stock Awards/Option Awards (continued)

―Awards are now required to be expressed as a dollar value (as opposed to a number of shares)

» Valuation: based on fair value on the grant date, determined pursuant to FAS 123R

» Entire fair value must be disclosed, even though that value may be amortized over vesting period for financial accounting purposes

―Option repricing/modification – only incremental fair market value of the new grant is reported




Non-Equity Incentive Plan Compensation

―Key definitions

» Incentive Plan – Plan intended to serve as incentive for performance to occur over a specified period of time (provides incentive if outcome is substantially uncertain when performance target is set)

» Equity Incentive Plan – An incentive plan under which awards are granted that fall within the scope of FAS 123R

» Non-Equity Incentive Plan – Any incentive plan that is not an Equity Incentive Plan.

―Non-Equity Incentive Plan column requires disclosure of cash bonus plans based upon performance criteria set in advance. Generally, cash bonus plans with pre-established performance criteria

―Reports the dollar value of all amounts earned during the fiscal year under non-equity incentive plans (not reported in SCT when paid), as opposed to equity awards which are reported when granted




New Columns:

―Change in Pension Value and Non-Qualified Deferred Compensation Earnings

» Report increases in actuarial value of deferred benefit plan benefits

» Report above market earnings (portion that exceeds 120% of AFR)

―All Other Compensation - includes all compensation not reported in other columns, including:

» Perquisites/Personal Benefits- new threshold: $10,000 (footnote must identify each

type of perk valued at more than $10,000 and quantify each perk valued at greater of $25,000 or 10% of total perks)

- valued at incremental cost

- not perquisite if “integrally and directly related” to performance of duties. If not, then perquisite if it confers a direct or indirect benefit that has a personal aspect (even though provided for some business reason)




New Columns (continued)

―All Other Compensation (continued)

» Severance/change-in-control amounts

» Company contributions to DC plans

» Life insurance premiums

» Tax gross-up amounts

» Discount on purchases of securities

―Total Compensation


Grants of Plan-Based Awards Table

The “Grants of Plan-Based Awards Table” is intended to provide a more detailed disclosure of all equity or cash based plan awards made during the last fiscal year.

Name Grant Date

Estimated Future PayoutsUnder Non-Equity Incentive

Plan Awards

Estimated Future PayoutsUnder Equit\y Incentive

Plan Awards

All Other Stock

Awards: Number of Shares of Stock or

Units(#)

All Other Option

Awards: Number of Securities Underlying

Options(#)

Exercise or Base Price of

Option Awards($/Sh)Threshold

($)Targe

t($)

Maximum($)

Threshold

($)

Target($)

Maximum($)

(a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k)

PEO

PFO

A

B

C



Four Types of Plan-Based Awards

Non-Equity Incentive Plan Awards― Grant date

― Estimated future payouts based on 3 performance levels (threshold, target, maximum)

Equity Incentive Plan Awards― Grant date

― Estimated future payouts based on 3 performance levels (threshold, target, maximum)

All Other Stock Awards― Time-vested stock awards

― Number of shares/units

All Other Option Awards― Time-vested option and SAR awards

― Number of securities underlying options or SARs

― Exercise price



Grants must be disclosed individually

A separate column must be added showing market value on grant date if exercise price is less than closing price on grant date

A separate column must be added to disclose the date the Committee took action to approve a grant if it differs from actual grant date

Modifications and repricings are not reported in this table


Narrative Disclosures

All tables should include additional narrative disclosures which disclose material factors necessary to understand the SCT and the Grants of Plan-Based Awards Table.―Provide additional information not included in tables, including

material terms of employment agreements and material terms of awards.

―Provide context.― In English, not boilerplate

A description of option repricing or other material modifications (this replaces the ten year option repricing table).

Descriptions of:―Methodology used to determine exercise price (if other than

closing price on grant date)―Methods for scheduling annual option awards and any grants

made outside normal practices.― Incentive plan performance measures (e.g., EPS).―But not performance targets (e.g., target EPS = $3.26).

Waivers or modifications of performance conditions for payments.


Tables for Outstanding Equity Awards

Two tables are required:

1. Outstanding Equity Awards at Fiscal Year End Table.

2. Option Exercises and Stock Vesting Table.

Note: These tables are one table in current proxy statements, with several

extra columns.



1. Outstanding Equity Awards at Fiscal Year-end

Option Awards Stock AwardsName Number of

Securities Underlying

Unexercised Options (#) Exercisable

Number of Securities Underlying

Unexercised Options (#)

Unexercisable

Equity Incentive

Plan Awards: Number of Securities Underlying

Unexercised Unearned Options

(#)

Option Exercise

Price($)

Option Expiration

Date

Number of Shares or Units of Stock

That Have Not Vested

(#)

Market Value of

Shares or Units of

Stock That Have Not Vested

($)

Equity Incentive Plan Awards:

Number of Unearned Shares,

Units or Other Rights That Have

Not Vested(#)

Equity Incentive Plan Awards: Market or Payout

Value of Unearned Shares, Units or

Other Rights That Have Not Vested

($)

(a) (b) (c) (d) (e) (f) (g) (h) (i) (j)

PEO

PFO

A

B

C



1. Outstanding Equity Awards at Fiscal Year-End

(Two components):

Option Awards

― includes stock options, SARs and other similar equity-based compensation instruments that have option-like features that are within the scope of FAS 123R

― requires disclosures of:

» The number of securities underlying unexercised options

- vested

- nonvested

» Equity Incentive Plan Awards: the number of securities underlying unexercised unearned options

» Option exercise price

» Option expiration date



1. Outstanding Equity Awards at Fiscal Year-End

(Two components):

Stock Awards

―includes restricted stock, RSUs, and other stock-related awards that derive their value from the company’s equity securities or permit settlement by issuance of the company’s equity securities within the scope of FAS 123R

―requires disclosure of:

» the number of shares/units that have not vested

» current market value of shares/units that have not vested

» Equity Incentive Plan Awards: number of unearned shares/units that have not vested- generally disclosed based on threshold

performance (rather than target or maximum)- current market value of unearned shares/units

that have not vested



2. Option Exercises and Stock Vested

Option Awards Stock Awards

Name Number of Shares

Acquired on Exercise

(#)

Value Realizedon Exercise

($)

Number of Shares or Units of Stock That Have Not

Vested(#)

Market Value of Shares or Units of Stock That Have Not

Vested($)

(a) (b) (c) (d) (e)

PEO

PFO

A

B

C



2. Option Exercises and Stock Vesting Table

Option Awards

―Number of shares acquired upon exercise of options and SARs

―Value realized upon exercise of options and SARs

Stock Awards

―Number of shares acquired on vesting of restricted stock and RSUs

―Value realized on vesting of restricted stock and RSUs

Note: grant date fair value reported in Summary Compensation Table, not in this Table.


Post-Employment Compensation

Key issue: Retirement and other post-termination compensation has grown over the years. Such compensation represents a “significant commitment” of corporate resources and a “significant portion” of overall compensation.

Pension Benefits Table

―Replaces current pension table.

―Provide actuarial present value of each NEO’s accrued benefit.

―Requires narrative description of the material terms of the benefits.

Nonqualified Deferred Compensation Table

―Totals to an aggregate balance at year end.

―Requires footnotes to explain any amounts included in the SCT.

―Requires narrative disclosure of material factors necessary to understand the table.


Pension Benefits

Name Plan Name Number ofYears Credited

Service (#)

Present Value of Accumulated

Benefit ($)

Payments During Last Fiscal Year

($)

(a) (b) (c) (d) (e)

PEO

PFO

A

B

C


Nonqualified Deferred Compensation

Name ExecutiveContributions

inLast FY

($)

RegistrantContributions

inLast FY

($)

AggregateEarnings in

Last FY($)

AggregateWithdrawals/Distributions

($)

Aggregate Balance

at Last FYE

($)

(a) (b) (c) (d) (e) (f)

PEO

PFO

A

B

C


Other Potential Post-Employment Payments

Narrative disclosure of Severance and Change in Control Payments

Describe the specific circumstances that trigger payments

Estimate of payments and benefits to be provided – with a total number for each potential payout

Describe any material conditions or obligations for the receipt of the payments - such as a noncompete, etc.

Determine payments based on a hypothetical termination on the last day of the fiscal year, including the closing sales price on the last trading day prior to the end of the company’s fiscal year.


Director Compensation

New Director Compensation Table

―Very similar to the Summary Compensation Table and the rules for the SCT apply for this table, where the compensation is the same (e.g., perquisites).

―Only provides 1 years worth of information.

Replaces current narrative disclosure.

Breaks out each director separately.

Includes a total column similar to Summary Compensation Table.

Requires disclosure of all compensation paid to the director, including consulting fees and other compensation that is not directly related to the services as a director.

Footnote disclosure of total options and other stock awards held at year end.

Narrative disclosure to accompany the table as necessary (such as an explanation of the fees paid).


Director Compensation

Name Fees Earned

or Paid inCash($)

StockAwards

($)

OptionAwards

($)

Non-EquityIncentive

PlanCompensatio

n($)

Change in Pension Value

and NonqualifiedDeferred

CompensationEarnings

($)

All OtherCompensatio

n($)

Total($)

(a) (b) (c) (d) (e) (f) (g) (h)

PEO

PFO

A

B

C


Related Persons Transactions

Rules are now more principles based, less mechanical than before.

404(a) requires disclosure of related person transactions

―$120,000 minimum limit – up from $60,000.

―Where the company was/is/will be a participant – broader than being a party

―Disclose the

» Related person’s name and relationship

» Related person’s interest in the transaction

» Approximate dollar value of the transaction and the related person’s interest

―Limited exceptions from disclosure.


Related Persons Transactions

404(b) requires disclosure regarding the company’s policies and procedures for the review, approval or ratification of related person transactions.

―What types of transactions are reviewed.

―Standards applied to approve the transactions.

―Persons responsible for reviewing and approving the transactions.

―How the policies and procedures are evidenced (i.e., are they in writing)

―Disclosure of any transactions that had to be disclosed, but that were not reviewed.

404(c) requires disclosure regarding promoters and certain control persons.

―Disclosure of any transactions with a promoter in the past 5 years.

―Disclose the names and amounts received by the promoters and the company and any acquisitions of assets from the promoters.

―Same disclosure required for any person who acquired control of an issuer that is a shell company.


Corporate Governance Disclosure

Consolidates disclosure of corporate governance issues under S-K, Item 407.

Independence:― Must identify the independent directors under the company’s

applicable standards (based on its listing standards).― Must identify any members of the audit, compensation and

nominating committees who are not independent.― Disclose any transactions that were considered with respect to the

director’s independence that do not need to be disclosed under the related party transaction rules.

Compensation Committee Disclosures― Describe the scope of authority of the committee― Extent of delegation of the committee’s powers to others― The role of executive officers in determining executive or director

compensation― Role of compensation consultants, including identification of the

specific consultants.

Charters― Charters of audit, nominating and compensation committees have

same disclosure requirements.― Can be met by posting on company’s website.


8-K Revisions

Disclosure of executive compensation moves from Items 1.01 and 1.02 to Item 5.02.

Disclosure required on:― Adoption or entry into a material compensatory arrangement― Any new material grant or award― Any material amendment to any compensatory arrangement

Applies only to PEO, PFO and other NEOs (determined as of the last SCT).

Provide a brief description of arrangement, including the amount of compensation to be received by the executive.

Materiality not automatic and must be determined by the company.

Must disclose the end of employment for all NEOs as well as the PEO, PFO, president, principal accounting officer, principal operating officer.

Must provide a brief description of all arrangements entered into upon the appointment of a new principal executive, financial, accounting or operating officer or the election of a new director.

― No exception for standard arrangements.― No materiality criteria.― Can reference descriptions of standard arrangements in other

documents, such as the proxy.


Business Ownership Table Change

Pledges of shares by NEOs and directors must be disclosed in a footnote to the beneficial ownership table.


What To Do Now!

Start Preparing!

The rules have changed dramatically and they are more complicated.

The rules require a large amount of additional information that must be processed, reviewed and possibly disclosed.

The new disclosure will take more time to prepare than the current disclosure and in the first year, it will require much more effort.

Three general considerations:― What? Put in place procedures to capture all of the required

information.

» Perquisites, related party transactions, revise D&O questionnaires.

― Who? Review/revise policies that will need to be disclosed.

» Related party transaction review policies, responsibility for CD&A option grant policies.

― No Surprises! Calculate and provide the disclosable numbers for the executive officers and compensation committee.

» Total compensation number (both for executives and directors), severance and change in control payments, pensions and nonqualified deferred compensation, total perquisites.


Specific Action Items To Do Now

Educate the Executive Team and Board of Directors, especially the Compensation Committee.

―They need to know their responsibilities and everyone needs to avoid surprises.

Prepare a draft CD&A.

―This report is very different than last year and will require a bit of cooperation between management, outside counsel and the compensation committee.

―Waiting until the end of the year may mean that important information is difficult to obtain and clearly explain.

―Compensation Committees may also change their practices when they see the report.

―Strengthen Board and Committee processes to ensure “best practices,” preserve business judgment protection and provide input to CD&A.

―Ensure CEO, CFO and Board understand that CD&A is a “filed” report and will be covered under Sarbox certification requirements.

Review/Prepare related party transaction rules and procedures and review related party transactions

―Review effect of changes on Section 16 qualification of directors on the compensation committee.



Review option grant practices and prepare CD&A explanation of current practices.

―Determine whether to fix any option grant practices that will not be considered FMV grants. And ensure the company can confidently state its actual practices.

―Description of current practices in a draft CD&A may cause the Board of Directors to revise grant practices.

Review procedures for setting performance goals for incentive compensation.

―Will help explanation in the CD&A.

Prepare Summary Compensation Table.

―Helps to determine the NEOs, since the executives may be different than in prior years.

―Show the executive officers and the board of directors the total compensation number. It will help them to see what this looks like.

Perquisites – review based on the new standards.

―Ensure that the necessary information is being captured for NEOs and directors.

Prepare Director Compensation Table.

―Although all director compensation should have been disclosed previously, many companies did not fully comply with these requirements.



Severance and Change in Control Payments.

―There is a lot of work to be done to summarize these payments and provide numbers.

―Provide NEOs and directors a tally sheet of this disclosure. Revise Director and Officer Questionnaire to help collect new

required information.

―Related party transactions

―Perquisites Prepare New Time Line for Proxy to take into account the new

required information.

new sec disclosure rules for executive compensation

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